FEDERAL COURT OF AUSTRALIA SZGGE v Minister for Immigration & Citizenship [2007] FCA 1722 MIGRATION – judicial review – protection visa – Refugee Review Tribunal – conduct of review – whether actual bias – whether apprehended bias – whether failure to give appellant opportunity to address relevant issues – whether conclusions of fabrication open on the evidence – membership of a particular social group – whether claim of membership addressed by Tribunal Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) s 39B Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited SZGGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1312 OF 2007 FRENCH J 13 NOVEMBER 2007 PERTH (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1312 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGGE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FRENCH J DATE OF ORDER: 13 NOVEMBER 2007 WHERE MADE: PERTH (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant to pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1312 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGGE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FRENCH J DATE: 13 NOVEMBER 2007 PLACE: PERTH (HEARD IN SYDNEY) REASONS FOR JUDGMENT Introduction 1 The appellant is a young woman who is a citizen of Fiji. She applied for and was refused a protection visa in October 2004. She said that, as an Indo-Fijian, she would face harm from indigenous Fijians if she were to return to her country. An initial Refugee Review Tribunal (the Tribunal) decision adverse to her was set aside on judicial review and remitted. A second Tribunal decision was also adverse to her. She sought judicial review in the Federal Magistrates Court. Her application was dismissed and she now appeals to this Court. 2 In her appeal the appellant claims actual and apprehended bias on the part of the Tribunal, a failure to provide her with a proper opportunity to address relevant issues during the hearing, findings which were not open to the Tribunal on the evidence that she fabricated her claims and a failure to consider her membership of a particular social group the subject of discrimination in Fiji. 3 For the reasons that follow, I am satisfied that none of the grounds of appeal is made out and the appeal will be dismissed. Procedural background 4 The appellant is a citizen of Fiji. She was born on 20 December 1983. Her sister who is six years older than her is an Australian citizen. She has an older brother who lives in Fiji. Her father and mother are both deceased. 5 The appellant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 12 October 2004. A delegate of the Minister refused her application on 14 October 2004. She applied for a review of the delegate's decision in the Tribunal (the first Tribunal) which affirmed the decision on 11 March 2005. She sought review of the first Tribunal's decision in the Federal Magistrates Court and on 19 April 2006 that Court, by consent, set aside the decision and remitted the matter to the Tribunal to reconsider and determine according to law. 6 On 8 September 2006 the second Tribunal again affirmed the decision not to grant the appellant a protection visa. She applied for judicial review of that decision in the Federal Magistrates Court pursuant to s 39B of the Judiciary Act 1903 (Cth). That application was dismissed by Emmett FM on 22 June 2007. The appellant now appeals against the decision of the Federal Magistrates Court. Evidence and claims before the Tribunal 7 In her application for a protection visa, the appellant was asked to state why she left Fiji (question 40). She wrote that her mother had died on 29 July 2004. She had no family support. Her sister and herself had not had any contact with her brother even when her mother was alive. She said: As a young Indian girl leaving on her own is very scarey and frightening with the indigenous group. Boarding house is very known for prostitution. As a young indian girl leaving in a boarding house can become an obstruction in marriage in the near future. [sic] She added that she had frequently travelled to Australia to visit her sister who had been very supportive, even when her mother was alive. They were very close as they had no one to support them after their father died. Asked what she feared might happen if she went back to Fiji, she said: With no family support I mostly fear of being insecure, no family support, no accommodation, being raped, loneliness, isolated. Which can result in unstable mental status. It is hard to deal alone with grief and loss. I fear for my life as I could be raped, attacked and leaving on the streets. [sic] 8 Asked who she thought might harm or mistreat her if she went back, she stated "Indigenous People" and her brother. She also made reference to the "Public". She said she would be on the street as her house had been sold. She also said in the application that her sister had been married when she was only 16 as her brother had threatened their mother that if she did not give him money he was going to get his friends to rape their sister. She said that if he could say that when their mother was alive, then he would do the same after her death. He had been excluded from the mother's will because of family conflicts. There was no one in Fiji to support her, or to protect her rights and interests. There had been a history of family conflict and violence. Asked whether authorities in Fiji would protect her if she went back, she said: No, as the past countary history has shown that Indians have no rights in Fiji. The Law is governed by indigenous people and corruption is at number one. And being a Female with no support I have no power and strength to support my rights and let alone find employment. [sic] A death certificate provided with the statement indicated that her father had died on 6 July 1989 in Sydney. 9 The application for review by the first Tribunal was accompanied by a submission written in the first person in the name of the appellant. She was represented by a migration agent at the time. The submission comprised some 14 typed pages. In it the appellant said she had travelled to Australia on a tourist visa a number of times. Her first trip was in November 1999 when she was 16. Her reason for coming to Australia was officially put down as "holiday and visiting friends and relatives". In actual fact, she said, she travelled to Australia because she was too afraid to live in Fiji. 10 The appellant said that although Indians and indigenous Fijians had managed to live together in Fiji things took a turn for the worse when the first coup occurred in 1987. She said: I was just 4 years old then and therefore do not have much recollection of that event. I remember as I grew up my mother and sister told me of the racist attitudes of the indigenous Fijian population. She said that indigenous Fijians had attacked her family and herself on many occasions. She had faced a number of personal attacks. She did not lodge a protection visa application earlier because she had been under the impression that things in Fiji would never become as bad or as dangerous as they had become at the time of her submission. 11 The appellant said she left Fiji because she feared for her life. She said that the intensity of violence to which they had been subjected by indigenous Fijians was "something that was beyond comprehension at first but soon became obvious that it was something that was well planned and orchestrated." 12 The appellant had visited Australia on five previous occasions. The first time was in November 1999 when she stayed for about two months. Her last arrival was on 19 September 2004 when she had arrived on a visitor's visa and lodged her application for a protection visa. She said that her life in Fiji and that of her family was reasonably peaceful up until a few years ago. She did not apply for a protection visa much sooner because her mother was living in Fiji and she could not leave her alone. 13 Early in 1987 some indigenous Fijians entered her family home and attacked members of her family because they were conducting a major Hindu prayer session. Her parents had installed at their home three long bamboo poles tied with red cloth in honour of Lord Hanuman. Prayers were said and hymns were sung. Fijian people in the area became angry. The appellant said that she could "vividly remember" Fijians entering the house, punching her father, slapping her mother and assaulting her brother and sister and herself. She said they threatened to sexually assault her sister and herself. The appellant said that there was a series of other attacks. 14 Following the 1987 coup in Fiji, according to the appellant, racial tension and intolerance between the two major races came to the forefront. In 1989 their father took the whole family to Australia. He had realised that the family was in danger of attack by indigenous Fijians. He applied for a refugee visa for himself as principal applicant in 1989. However he died in Sydney in July that year. Following his death there was conflict within the family particularly with the appellant's brother. There was dispute about the distribution of their late father's estate. It reached a point where her mother had applied for an apprehended violence order in Sydney against her brother. The family returned to Fiji for her father's funeral. After they returned, according to the appellant, her brother had threatened to have her elder sister raped if he did not get his share of the estate. She said he had organised some gangs of Fijians to "hassle us and create a lot of anguish for us." Not long after her father's funeral in Fiji what she described as "the first major incident" occurred. Some 15 Fijians entered the family house and held them captive while they demanded money from her mother. Her mother was assaulted, as was her sister and herself. She said she had been slapped and pushed to the ground. The Fijians held a knife to her head to threaten her mother. She claimed that despite her mother giving them money, the Fijians were "incensed with the anti-Indian stance." 15 The appellant claimed that other Indians living in the area were "easy prey" for the "whims and fancy" of the Fijian people of Raiwaqa. Sometimes there would be a demand for money with a threat of assault if payment were not made. On other occasions Fijians would just turn up and demand food from them. If this was refused, their home would be stoned and stoning would continue for a good hour or so. She said that they would all remain indoors absolutely terrified about what might occur. She claimed that windows were smashed and doors were damaged by stone throwing incidents. They were not the only Indian family to suffer in such a manner. 16 The appellant claimed that she suffered at the hands of indigenous Fijians while travelling to and from school. Travelling on the bus was a nightmare most of the time because the indigenous Fijians would try and do "nasty things" to young Indian girls like herself. Some would sit next to her and try and lift her skirt. Some would try to put their hands on her private parts. The bus driver would not do anything to stop them because otherwise he would be assaulted. Their mother complained to the police more than once, but nothing was done. 17 The appellant said that just before the second coup in May 2000, the Fijian persecution against her family continued and the demands against them escalated. Fijians in their area were increasing their hostilities. They would constantly stone the family house and at night they would come and start banging on the door. When their mother opened the door they would make many threats and demands. Fijians from Raiwaqa would forcefully take money and other things from their home. Her mother was punched when she complained about the unreasonableness of this behaviour. A few days after the coup of 19 May 2000 the appellant was home alone. Her mother had gone to do some shopping. She opened the door to Fijians who wanted protection money. They walked straight in. A village elder demanded to know where her mother was. When he found that the appellant was alone at home he started speaking Fijian to the rest of the group. The others started going through all the rooms in the house. When the appellant started to scream, three of them came and held her down. The elder shouted for her to keep quiet. She was threatened with a knife to the throat. When her mother returned she was told by the Fijian elder that they had two choices: namely either to leave the land or pay $1,000. Again the appellant was threatened with rape or death. 18 The appellant and her mother went to the local police station to lodge a complaint. The police officer who attended told them it would be better to leave Fiji as it was not going to be safe for them any more. He was a Fijian officer. He told them that a number of Indian women had been raped and that for their safety they had better be cautious. 19 The appellant said that at the height of the coup stones were thrown at their home in the middle of the night. A Hindu prayer site located outside their home was desecrated with blood thrown all over it. On one occasion they found a pig's head there. This was the last straw. The appellant said that coupled with the enormous financial burden placed on them they had no option but to make plans for her to travel to Australia for her safety. 20 The appellant travelled to Australia on at least four occasions from November 2001 to July 2004. Each time she came to Australia she only came for a short period because she did not want to leave her mother alone. She was also studying at university and wanted to complete those studies. She did not lodge a protection visa application until October 2004 because she hoped that when her mother arrived in Australia they could lodge a joint application. However, her mother could not travel to Australia. The appellant claimed that between her visits to Australia there were other attacks. One such attack occurred during Diwali, a Hindu religious festival, in 2002. She and her mother were preparing sweets for the occasion when their front door was kicked in. Four Fijian men rushed into their home. One was armed with a cane knife. He charged towards the appellant, pretended to strike a blow towards her, and then put the knife to her throat. He demanded $200 and said if it was not paid they would rape the appellant in front of her mother. The appellant's mother only had $150 which she gave to him and then he put his knife down and started slapping them. One of the men grabbed and ripped the appellant's blouse. One of them slapped her mother viciously. Somebody tried to kiss the appellant and started groping her. Then the man with the knife shouted in Fijian for the others to stop. He demanded that the appellant's mother hand over gold jewellery. She handed over gold chains with four bangles from a dressing table. Altogether they were worth close to $2,000. Again the appellant and her mother went to the police station. The police officer took their statement and wished them a good day. When asked what would happen, the police officer replied that nothing would happen as they had better things to do. 21 On 29 July 2004, the appellant's mother died. The appellant regarded herself as all alone in a country that could not guarantee her safety. Her sister came from Sydney for their mother's funeral. In the meantime their brother started a "new legal battle". Ultimately some of the estate problems were solved with the help of the Public Trustee. The appellant said there was nothing to keep her in Fiji. She flew out of Fiji on 19 September 2004. She lodged her protection visa application on 12 October 2004. 22 The appellant said that it was only when the application was refused that her sister sought the advice of a number of solicitors and migration agents. They appointed a migration agent and when he started asking her a lot of questions she realised that she should have detailed all that she had been through. The appellant said that she had a real fear of returning to Fiji because of her physical abuse and attack by indigenous Fijians and their warnings that they would rape her. She referred to the program of the Qarase government which was elected following the coup and which undertook affirmative action in favour of indigenous Fijians. She compared that government to the apartheid regime in South Africa. She claimed that Indians had been and would be attacked by Fijians in practically all aspects of life. She said she had no faith in the Fiji police who seemed to be a law unto themselves. 23 The appellant attended a hearing before the first Tribunal on 5 January 2005. She gave evidence at that hearing which was summarised in the decision record of the first Tribunal. The summary was reproduced in the decision record of the second Tribunal. 24 According to the decision record, the first Tribunal asked the appellant why her primary application had not mentioned any of the many incidents of serious harm which she claimed in her application for review, prepared one month later, to have suffered. She evidently told the first Tribunal that when she had completed her primary application she had not known the procedure in Australia and had thought there would be an opportunity for an interview at which she could explain in detail what had happened to her. She had not known how much to include in the application and had left many things out of it. The first Tribunal had put to her that it was possible to gain the impression that, having been put on notice by the delegate's decision that there were problems with her claims, because they were not related to Convention-based harm, she had sought to remedy that deficiency by fabricating new claims. The appellant told the first Tribunal that when she travelled to Australia in September 2004 she had been very worried, nervous and afraid and had stopped thinking. She had written out the application without thinking. It was the first time she had written such an application. 25 The appellant said that she did not have the money to move away from her home in Raiwaqa. The first Tribunal put to her that her family had owned a house there and appeared to have been wealthy enough to pay for education and for her holidays in Australia on five occasions. The appellant said the only family money came from her mother's tailoring business. Her brother had taken a one third share of her father's estate and the family had little money left. She was asked why she had left it so late to make an application for a protection visa given her earlier opportunities when visiting Australia. She responded in the same vein as in her written submissions saying that she could not leave her mother behind in Fiji. 26 The first Tribunal referred the appellant to independent country information which indicated that (as at 2005) violence against Indo-Fijians on the basis of their ethnicity appeared to have declined significantly since 2000 and that most acts of robbery with violence were perpetrated by young unemployed Fijian males who saw Indo-Fijians and other minority groups as well as expatriates and tourists as affluent targets. The appellant claimed that the statistics showed low levels of violence because the police did not record complaints made by Indo-Fijians. She had tried to complain to the police internal affairs department, but had been continually fobbed off with the excuses that the files had been lost. 27 Following the hearing, the first Tribunal sent the appellant two items of country information. In response it received a further submission and a statutory declaration completed by the appellant's sister. The further submission was sent on 11 February 2005. It covered legal issues and set out a press release from the Fiji Labour Party along with excerpts from the 2003 United States Department of State Country Reports on Human Rights Practices in Fiji. It also included press reports of a total of six criminal incidents in July 2004. 28 The submission concluded by stating that at the end of the hearing and upon presentation of the independent country information, the appellant and her advisor became convinced there was only going to be one outcome in the case and that was that the first Tribunal had already determined she was not eligible for a protection visa. The appellant sought a further hearing to give both parties the opportunity to address the crucial issues in the case. This would also give her sister an opportunity to address the Tribunal and for the Tribunal to ask her pertinent questions. 29 In the sister's statutory declaration, which was attached to the post hearing submission, she referred to their father's intention to seek a humanitarian visa in 1989 and his death before that process could be completed. Although the mother had been given an opportunity to reapply she had begun to experience severe problems with her son. This led to the decision to take the daughters with her and return to Fiji where she could earn some money to maintain them. The mother could not return to Australia because she had overstayed in 1989 and a ban was placed on her travel to Australia. According to the appellant's sister the mother was rejected every time she applied for a visa. The sister said she could vouch for the truth of everything the appellant had told the first Tribunal. She could confirm that the incidents complained of did happen and that the police did nothing to assist. 30 Following the setting aside of the first Tribunal's decision and the remitter of the application for review, the second Tribunal decided to invite the appellant to attend a further hearing. She appeared before it on 7 August 2006 where she was represented by her migration advisor. She gave oral evidence. The second Tribunal also heard oral evidence from her sister who is an Australian citizen. 31 At the hearing the second Tribunal asked the appellant's sister a number of questions relating to the protection visa application. It summarised the sister's evidence in its decision record. The additional evidence did not go to the substance of the incidents of which the appellant complained. However the second Tribunal recorded the sister as saying that she and the appellant had decided to apply for a protection visa. When they completed the form they only included some information touching on the appellant's situation. They thought they would have an opportunity at interview to give further information. The sister said that she did not realise they would have to set out everything that had happened in the application. 32 A transcript of the proceedings before the second Tribunal was before this Court and before the Federal Magistrates Court. In the course of the rehearing the member pointed out that it was her job to consider the application for review and that in so doing she was not bound by the reasons of the previous member or that member's conclusions drawn from the information and evidence. She said: But I am able to use all the information that has been given to the tribunal from the time that you made the application for review. And that includes any evidence that was given at the previous hearing, and any evidence that you might give me today or your sister might give me, or any submissions that your adviser gives me, which I note he has. I haven't read that, but I will read it after we've finished the hearing. Okay? 33 At the end of the evidence given by the appellant's sister, the second Tribunal member said: All right. Is there anything else that you want to tell me that you think might support your sister's case? Anything that we haven't covered or --- In reply the appellant's sister said she had sent money back home for the appellant to come here. She said her hands had been tied as her mother could not get a visa. 34 At one point the following exchange occurred between the second Tribunal member and the appellant: Q. You outlined to the last tribunal things that have happened to you and that you were concerned about. If I was to say to you know [sic] what you fear about returning to Fiji, what would you say to me? A. I would say to you I fear for my life. I fear of my race and my religion. I have a fear that I will be persecuted because I am a woman who is at risk. I am a woman that is vulnerable to the society. I am a woman who is alone, single, with no family support whatsoever. Q. So you fear that you will be harmed by being either – when you say you'll be killed, why do you think you'd be killed? A. Because I am a Hindu girl. Q. Sorry? A. I am a Hindu girl, Indian Hindu girl, yes. 35 At the end of the oral evidence from the appellant, the second Tribunal asked her migration advisor who was present whether there was anything that he wanted to add to the earlier submissions that he gave to the first Tribunal. A substantial oral submission followed. 36 When making his submission the advisor referred to the Tribunal's power to have regard to the evidence given to the first Tribunal. He referred to the adverse findings on the appellant's credibility by the first Tribunal and said: We certainly hope that if there's anything you want to find out about the previous hearing where her credibility can be restored, where her credibility issues could be judged by you, then by all means go for it. But we certainly hope that the previous member's judgment on her credibility – her sister is here as well to corroborate some of the evidence, and this would be the perfect forum, because I certainly wouldn't want to leave here with a view that the damage done in the first hearing would linger on and on. The Tribunal replied: I mean, if there's anything that is in the nature of information that I have to put in writing, I will put that in writing. The member also indicated that she intended to listen to the tape of the first Tribunal hearing herself and to the evidence that was given. She added: I don't actually pay much attention to the actual conclusions the other member has drawn. Do you understand what I'm saying? The second Tribunal's s 424A letter 37 Following the hearing the second Tribunal sent a letter, pursuant to s 424A of the Migration Act 1958 (the Act), to the appellant giving particulars of information which could form a reason for affirming the delegate's decision. The second Tribunal invited the appellant to comment on that information in writing. It referred in the letter to the statement submitted to the first Tribunal on 18 November 2004 outlining the appellant's prior mistreatment in Fiji. It summarised the various incidents to which the appellant had referred. The letter went on: 2. On 12 October 2004 you submitted an application for a protection [visa] setting out your claims for refugee status. You did not mention the above incidents in your application for a protection visa. 3. Your sister gave evidence at the hearing of the Tribunal on 9 August 2006 that she helped you complete your application for refugee status and she did not understand the importance of setting out the details of your claim. The information is relevant because the Tribunal may consider that the failure to mention all or some of these incidents when you made your application for a protection visa indicates that you have fabricated these incidents to support your claim for refugee status following the refusal to grant the protection visa. 38 The appellant's advisor responded on 23 August 2006. The second Tribunal characterised the first part of that response as essentially a reiteration and further elaboration of the particular factual claims made in the statement of November 2004. The second part of the response was said to have addressed the appellant's reasons for her failure to mention those specific matters in her application for a protection visa. 39 The response to the second Tribunal's s 424A letter was sent on the letterhead of the appellant's migration agent but expressed in the first person as the appellant's response. It referred in particular to the second Tribunal's statement in the letter that it might consider that the failure to mention, in her protection visa application, the incidents set out in her subsequent statement "… indicates that you have fabricated these incidents to support your claim …". The appellant read this as a prejudgment by the Tribunal that she had fabricated those incidents. She denied fabrication. She said she had in reality been a victim of the circumstances that she outlined to the Tribunal in her submission of 18 November 2004. She said, inter alia: The Tribunal is hell-bent on proving that I am a liar and that I fabricated my claims. In stating such a definitive statement as fact the Tribunal has not given me any substantial proof of where exactly I have fabricated these claims. I admit that I did not list these claims in my initial application and my reasons for not doing so have been explained in this submission. She said that during the hearing she had turned up ready to answer each and every question thrown at her. The second hearing had only lasted 45 minutes. She pointed out that at no stage during that hearing did the second Tribunal ask her any questions about what it perceived to be her fabricated claims. At no stage did it challenge her or her sister to verify the veracity of those claims. 40 The appellant's advisor also seems to have regarded the second Tribunal's letter as reflecting upon his integrity and professionalism as it was he who had prepared her detailed written submission. 41 In its decision recordthe second Tribunal said: When read in context, however, this paragraph clearly indicates that the Tribunal would consider the applicant's comments and exercise its discretion in considering how this information may be relevant as indicated by the use of the words "may consider that the failure to mention all or some of the incidents" at the beginning of the sentence". The second Tribunal then referred to independent country information relating to Fiji and did so at some length. The second Tribunal's findings and reasons 42 In its findings and reasons the second Tribunal accepted that the appellant is a citizen of Fiji, of the Hindu religion. It accepted that she and her parents and siblings came to Australia in 1987 and 1988 and overstayed their visas. It accepted that following her father's death in 1989 the appellant, her mother, sister and brother returned to live in Fiji. The appellant was 5/6 years old when she returned. The second Tribunal also found that some 13 years ago the appellant's eldest sister married and settled in Australia. 43 The second Tribunal found that the appellant's brother and other members of the family had been involved in violent disagreements and disputes following her father's death as a result of which her brother had a poor relationship with her mother and other members of the family. It accepted that her brother would not provide any family support or protection for the appellant if she returned to Fiji. 44 The second Tribunal then considered the appellant's claims of mistreatment. It considered first the absence of any of the claimed incidents in the application for a protection visa lodged on 12 October 2004. The second Tribunal said that it had considered carefully the reasons given by the appellant and her sister for the failure to include some or all of those claims. It did not accept the explanation given by the appellant that she and her sister were unfamiliar with the requirements and thought she would be called for an interview. The appellant had not explained why she was under the impression that she would be called for an interview. The second Tribunal accepted that at the time of the application she was distressed because of her mother's death, but did not consider that this was an explanation of the failure to provide at least some of the information later given to the Tribunal even in a general or summary form. 45 The reasons given in the protection visa application referred mainly to the appellant's personal and family circumstances, or generalised fear of the indigenous community and of her brother in Fiji. The only claims in the application which could have been characterised as Convention-based were in a passing reference to the absence of rights for Indians in Fiji and her fear of indigenous Fijians and of living on the street and being vulnerable to homelessness, mental distress, rape and attack. The second Tribunal said: Given the fact that not one of the serious incidents set out in the statement of 18 November 2004 was mentioned in any way when the applicant first applied for a protection visa leads me to the conclusion that the claims of serious mistreatment set out in her statement have been fabricated and that her evidence is totally unreliable on material questions of fact. 46 The second Tribunal considered that its finding, that the appellant did not suffer mistreatment as claimed, was supported by her admission that she had visited her sister on a number of occasions between 1999 and 2004 and had not sought a protection visa during any of those visits. It did not accept her explanation that she was concerned about her mother and did not wish to apply for protection because she could have been restricted from visiting her mother in Fiji while awaiting a determination. 47 The second Tribunal did not accept the appellant's vivid recall of an incident in which indigenous Fijians had entered the house and assaulted members of the family early in 1987. It did not accept that the assailants threatened to sexually assault her and her sister. Nor did it accept that they attacked the family because members of the family were practicing Hindus. 48 It referred to the appellant's age at the time of the 1987 incidents, noting: The passport given to the Tribunal showed that the applicant was born on 20 December 1983 making her just 3 years old at the time of the alleged incident. Her own evidence was that she was 4 years old at the time. In her response to the Tribunal's invitation to comment she sought to explain the inherent implausibility of her claim that at the age of 4 years or younger she vividly recalled Fijians forcefully entering the house, assaulting her brother, her sister and herself and threatening her with sexual assault by claiming that she remembered the attack but was told about the threats of sexual abuse when she was older. 49 The second Tribunal did not accept that the appellant and her family suffered violence and attacks after the 1987 coup as a result of increasing racial tension and intolerance. It rejected in detail the claims relating to the home invasion by 15 indigenous Fijians in 1989. Nor did it accept that indigenous Fijians would frequently demand money or food from the family or that the family home was stoned causing significant damage. Virtually none of the claimed incidents was accepted by the second Tribunal. 50 The second Tribunal accepted that during the period surrounding the coup in May 2000 there were incidents in which persons of Indo-Fijian background were targeted for reasons of their ethnicity and that there was a lapse in police protection available to persons of Indo-Fijian ethnicity for a period of time surrounding the coup. It found, however, that since that time law and order had been restored, two elections had taken place and the judicial system had continued to operate in a fair and impartial manner. There had been significant improvements in the administration and training of police which had resulted in a more efficient and responsive police force. 51 The second Tribunal stated: The applicant perceives that as a young Indo Fijian woman she is at risk of sexual assault in Fiji, however I do not accept that there is a current objective basis for this fear. The Tribunal referred to a report compiled by a number of women's groups in Fiji in 2002 commenting on issues surrounding the May 2000 coup and noting that there were reports of some Indo-Fijians being sexually assaulted during the coup in rural areas of Fiji. 52 The second Tribunal did not accept that the appellant had suffered any serious harm in Fiji for any Convention reasons nor that she faced a real chance of persecution if she returned to Fiji because of her Indo-Fijian ethnicity, her Hindu religion or as a young woman of Indo-Fijian ethnicity/Hindu religion or as a young woman or any other Convention reason. It affirmed the decision not to grant the appellant a protection visa. The grounds of the application in the Federal Magistrates Court 53 The grounds of the application in the Federal Magistrates Court, omitting particulars, were as follows: 1. The Tribunal made jurisdictional error in that it did not deal with the Applicant's case in a bona fide manner. Thus the Tribunal was biased as it prejudged the Applicants [sic] case. 2. The Tribunal made jurisdictional error in that the way it went about conducting the review in combination with its reasons which might have caused a reasonable lay observer to apprehend conclude that the tribunal was biased. [sic] 3. The Tribunal made jurisdictional error in that it made findings of fabrication which was not open on the evidence. 4(a) The Tribunal failed to consider whether the Applicant would be persecuted for membership of a particular social group consisting of "Young Indo-Fijian women living alone in Fiji". 4(b) The Tribunal made jurisdictional error as it failed to deal with the claim the applicant put to the Tribunal and dealt with the claim on a different basis. The reasons for decision of the Federal Magistrates Court 54 The learned Federal Magistrate dealt together with grounds 1 and 2 which she characterised as grounds relating to bias and apprehended bias respectively. Her Honour noted that the appellant's solicitor contended that the Tribunal had demonstrated bias in three respects: 1. The rejection of the extensive claims of persecution made by the appellant without giving reasons for most of them; 2. The failure to ask the appellant about the substantial claims made by her at the hearing; 3. The failure to ask the appellant's sister about matters in respect which she could give evidence in support of the appellant. 55 Her Honour said that a fair reading of the second Tribunal's decision made clear that it identified with particularity the information given by the appellant to the department in support of her protection visa application, the written claims made before the first Tribunal, the oral evidence at the first Tribunal, the post-hearing submission after the first Tribunal and the oral evidence given by the appellant and her sister. 56 Her Honour referred to the s 424A letter sent to the appellant by the second Tribunal on 11 August 2006. She then summarised the course of the second Tribunal's reasons for decision. Her Honour referred at [42] to the second Tribunal's invitation to the appellant to put to the second Tribunal what she feared about returning to Fiji and the appellant's response to that question. Her Honour said (at [43]): In the circumstances, the Tribunal was entitled to proceed on the understanding that there was no departure by the Applicant from the claims made by her in her statement dated 18 November 2004. She then set out the second Tribunal's reasons for its rejection of the appellant's claims. She did not accept the appellant's contention that the second Tribunal's rejection of each of the claims was made in a manner that indicated prejudgment. She said (at [47]): The Tribunal's rejection of the Applicant's claims was reasoned and was open to the Tribunal on the evidence and material before it. It was preceded by a detailed analysis of the Applicant's claims and the evidence before it which included its reasons why it rejected the applicant's claims… She dealt with the second Tribunal's reasoning on the appellant's response to the s 424A letter and the suggestion that the Tribunal had prejudged the issue of her credibility. Her Honour noted the two invitations the Tribunal proffered to the appellant at the hearing to say anything else that she wanted to. 57 As to the second Tribunal's reasoning on the merits of the appellant's claims, her Honour said (at [63]): The findings of fact made by the Tribunal in the consideration of whether the Applicant's fear was well-founded, were open to it on the evidence and material before it and for which it gave reasons. There was nothing on the face of the decision to suggest that the second Tribunal approached its task other than with a mind open to persuasion. A perusal of the transcript of the hearing made clear that every opportunity was given to the appellant to say whatever she wished in support of her claim. The questions generally were open ended and invited explanatory answers. 58 There was nothing to suggest that the appellant was precluded from saying anything at the hearing that she wished. Her sister appeared as a witness on her behalf pursuant to her request and was able to give evidence. Her advisor was allowed to make submissions in support of her. As to the appellant's complaint that the second Tribunal failed to ask her sister sufficient questions, her Honour found nothing about the way in which the second Tribunal questioned the sister, including its failure to ask further questions, that would suggest prejudgment. 59 Ground 3 was rejected on the basis that it invited merits review of the second Tribunal's decision, an exercise which the Court could not undertake. To the extent that the appellant's solicitor contended that the second Tribunal's finding of fabrication was not open on the evidence, her Honour rejected that submission. She said (at [81]): Such a finding was open to the Tribunal on the evidence and material before it and for which it gave reasons. 60 Under ground 4 the appellant's counsel contended before her Honour that the appellant claimed to fear persecution as a member of a particular social group defined as "young Indo Fijian women living alone in Fiji". He submitted that the second Tribunal had failed to consider that particular social group to the extent that it was defined by the characteristic that its members lived alone. Her Honour found that, on a fair reading of the decision, it was clear that the second Tribunal considered whether the appellant had a well-founded fear of returning to Fiji for "reasons of lack of family support…". It considered her claimed fear in the context of "her situation as a young woman without immediate family support and protection and a perception that she is at risk generally from members of the indigenous Fijian community". Her Honour said (at [88]): It is clear from the language used by the Tribunal in its decision that it understood the claim made by the Applicant and that it considered the Applicant's claim of a fear of returning to Fiji in the context of her being a young woman living alone without family support. Her Honour said, however, that there was no evidence before the Tribunal to suggest that young Indo-Fijian women living alone were a particular social group. She accepted the submission by counsel for the Minister that women with similar characteristics may have similar fears but that would not make them a particular social group at risk of persecution by reason of those fears. 61 Her Honour dismissed the application for review. The grounds of appeal 62 The grounds of appeal against the decision of the Federal Magistrates Court substantially replicate the grounds of review in the application before that Court. They are as follows: Ground 1(a) The learned Magistrate erred by not holding that the Tribunal made jurisdictional error as it did not deal with the Applicant's case in a bona fide manner. The Magistrate also failed to hold that the Tribunal was biased as it prejudged the Applicant's case. … Ground 1(b) The Tribunal made jurisdictional error as it breached s425 of the Migration Act 1958. … Ground 2 The learned Magistrate erred by not holding that the Tribunal made jurisdictional error in the way it went about conducting the review, which in combination with its reasons would have caused a reasonable lay observer to apprehend that the Tribunal was biased. … Ground 3 The learned Magistrate erred by not holding that the Tribunal made jurisdictional error in that it made a finding of fabrication which was not open on the evidence. … Ground 4 4(a) The learned Magistrate erred by not holding that the Tribunal failed to consider whether the Applicant would be persecuted for membership of a particular social group consisting of "Young Indo-Fijian women living alone in Fiji". … 4(b) The learned Magistrate erred by not holding that the Tribunal made jurisdictional error as it failed to deal with the claim the applicant put to the Tribunal and dealt with the claim on a different basis. … Appeal Ground 1(a) – want of bona fides and bias 63 The written submissions in support of this ground of appeal proposed, in effect, that the Federal Magistrates Court should have found actual bias on the part of the Tribunal having regard to the way in which it conducted the review and framed its reasons. In [9] of the written submissions, counsel for the appellant described what he called the "core" of her claim under this ground as follows: (i) as stated in her Honours' [sic] decision at [46(b)] the Tribunal held (in relation to detailed statement of claims provided to the first tribunal – AB 54 67) that the Appellant's claims of serious mistreatment in that statement was "fabricated" and that the Appellant's evidence is "totally unreliable on material questions of fact". (ii) the Tribunal did not ask about these claimed events during the hearing either from the Appellant or her sister who appeared as the corroborating witness. It appears that the tribunal did not come ready for the evidence of the witness. Its attitude in this respect could be stated as a deliberately wasted opportunity. (iii) further the Tribunal avoided asking about these claimed events during the hearing even after being requested by the agent to deal with the credibility issue related to these events. It ducked the issue by referring to a s424A notice that it might send. The question is – "If the Tribunal could have asked about the claimed events at the hearing why not do it and why shun the whole issue?" In this context we submit with respect that sending the s424A notice was only to comply with the law knowing that it was the reason for remittal of the earlier court proceedings. (iv) the Tribunal's failure to ask about those claimed events shows that it has already decided this issue based on the decision of the first tribunal that the Appellant fabricated the claims. It was not interested in further discussion. (v) further the Tribunal's rejection of the extensive claims of persecution without giving reasons for most of them and giving seriously flawed reasons for some of them also shows that it had a closed mind. 64 In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J accepted as "orthodox" the test for actual bias that requires demonstration of a pre-existing state of mind which disables the decision-maker from undertaking or renders him or her unwilling to undertake any or any proper evaluation of the materials which are relevant to the decision to be made (at [72] read with [36]). Their Honours observed (at [71]): Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. 65 Neither the conduct of the review nor the sending of the s 424A letter, nor the second Tribunal's reasons for decision, nor all of those things taken together, allow the conclusion to be drawn that the second Tribunal approached its task with a closed mind. It was entitled to have regard, as it did, to the claims made by the appellant before the first Tribunal as well as the materials put before it. The appellant was given every opportunity to put her case to the second Tribunal. Her advisor was invited to speak and gave a substantial oral submission. It might rightly be said that the s 424A letter raised matters which could properly have been put at the review. It might have been preferable if that had been done. For some applicants however, a challenging approach by the Tribunal at review has itself been seen as an indicator of bias rather than a proper disposition of the inquisitorial function. To the extent that the s 424A letter gave the appellant an opportunity to comment upon the Tribunal's provisional views rather than new information relevant to the appellant, it may not have been necessary. In any event there was no basis in the materials before her Honour for the erection of the structure of impropriety propounded by counsel for the appellant. Ground 1(a) fails. Appeal ground 1(b) – breach of s 425 of the Act 66 Counsel for the appellant in written submissions contended that the second Tribunal had failed to afford the appellant the opportunity to give evidence and present arguments "relating to the issues arising in relation to the decision under review". The thrust of this argument was that the second Tribunal, by putting its questions relevant to credibility in the s 424A letter, did not afford the appellant the opportunity in oral responses to demonstrate her credibility. Counsel put it thus in the written submissions (at [69]): Credibility is very critical issue in refugee matters. The main thing that affected the credibility was the Tribunal's disbelief in the events allged to have happened. That is an issue that arose in the matter but no opportunity was given to deal with this matter during the hearing. It would been appropriate to question the Appellant if the Tribunal did not belive her or question the witness. This was avoided, we submit deliberately. [sic] 67 Section 425 requires, in the circumstances in which it applies, that an applicant for review be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. That does not impose a duty upon the Tribunal to cross examine the applicant on claims which it may have difficulty in accepting. There was no failure to comply with s 425 of the Act in this case. Appeal ground 2 – reasonable apprehension of bias 68 This ground rested upon the assertion that the second Tribunal had formed an opinion that the appellant's claims were fraudulent based on the first Tribunal's decision. It had applied its opinion to the appellant's case and not given fresh consideration to the application for review. The short duration of the hearing, 45 minutes, compared with what was said to be a usual average time of between 2 and 2 ½ hours, allegedly indicated that the Tribunal "did not want to spend much time during the hearing as it has prejudged the critical issues" [sic]. 69 An apprehension of bias was said to arise from the fact that a fair minded lay observer would wonder why the second Tribunal would invite the appellant and her sister to a hearing but not ask them about the main incidents alleged to have happened to the appellant before holding that all were fabricated. The way in which it dealt with her advisor's request in relation to the credibility of the appellant would also, it was said, have caused apprehension of bias when taken in combination with the decision record. 70 In my opinion, however, a reading of the transcript of the proceedings and of the express opportunities given to the appellant and to her advisor to put to the second Tribunal anything they wanted to say would have prevented any apprehension of bias arising. Nor does the sending of the s 424A letter or the terms of the reasons for decision give rise to such an apprehension. Appeal Ground 3 – fabrication finding not open on the evidence 71 The complaint advanced on behalf of the appellant as set out in the written submissions seems to have been a complaint about the reasons for decision and the adequacy of the second Tribunal's explanation of its findings adverse to the appellant. It does not really go to the contention that the findings were not open. I accept the submissions made on behalf of the Minister that fabrication of the claims of serious mistreatment was a factual finding open on the evidence before the second Tribunal. The second Tribunal properly had regard to the significant inconsistency between the content of the original protection visa application and the detailed allegations made in subsequent statements to the second Tribunal. It also had regard to the improbability of the appellant's claim that she could vividly recall events which occurred when she was three or four years of age in the detail which she put to the second Tribunal. Whether another Tribunal would have drawn the same adverse inferences is neither here nor there. The adverse inferences were open on the evidence. The second Tribunal also had regard to the appellant's repeated visits to Australia and return to Fiji notwithstanding the prior incidents of mistreatment. It also had regard to independent country information about the changed situation in Fiji after the restoration of constitutional government after the coup of 2000. 72 The inferences which the second Tribunal drew from its consideration of the evidence were open to it. Appeal ground 4(a) – membership of a particular social group 73 It was said that the Tribunal should have considered whether a particular social group, designated "Young Indo-Fijian women living alone in Fiji" exists. The first Tribunal considered that it did and the evidence squarely raised the issue. 74 At the review hearing the second Tribunal put the question squarely to the appellant by reference to the particular social group now asserted: Q. So your fear is that as a girl on her own without protection of family, because of your Indian ethnic background, and the fact that you're a Hindu, you will be targeted. A. Yeah. Q. That's your claim, isn't it? What I'm saying to you is that there's nothing in the country information that indicates that now, that the police wouldn't protect you. Would you agree with that or disagree? A. I would disagree with that. 75 In its reasons for decision the second Tribunal stated that the appellant perceived that as a young Indo-Fijian woman she was at risk of sexual assault in Fiji. It did not accept a current objective basis for that fear. The second Tribunal referred to a report compiled by a number of women's groups in Fiji in 2002 and noted that there were reports of some women being sexually assaulted during the 2000 coup in rural areas. The second Tribunal said: It is understandable that such reports caused the applicant to feel apprehension particularly if she feels she has no family structure to support and protect her if she was to return to live in Fiji. The second Tribunal did not accept that there was any real basis for that fear. It found on the basis of country information that police and community protection was of a reasonable standard. 76 The second Tribunal in this part of its reasoning adequately addressed the claim now said to have been advanced by the appellant by reference to her membership of a particular social group. In any event, the generality of its findings about the availability of protection subsumed the particular claim now formulated. 77 Ground 4(a) fails. Appeal ground 4(b) – failure to deal with the appellant's claim 78 This was really a reformulation of the preceding ground. Counsel for the appellant asserted that the appellant's fear of living alone was not addressed by the second Tribunal's finding that she could get rented accommodation because she would still be living alone. It was said therefore to have failed to address the issue of her having to live alone and thus without the protection that virtually everyone else would have. 79 This ground fails for the same reasons as the preceding ground. Conclusion 80 For the above reasons the appeal will be dismissed with costs. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 13 November 2007 Counsel for the Appellant: Mr T Silva Solicitor for the Appellant: Silva Solicitors Counsel for the First Respondent: Mr MP Cleary Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 1 November 2007 Date of Judgment: 13 November 2007