FEDERAL COURT OF AUSTRALIA Minister for Immigration & Citizenship v CZAX [2012] FCA 873 Citation: Minister for Immigration & Citizenship v CZAX [2012] FCA 873 Appeal from: CZAX v Minister for Immigration & Anor [2012] FMCA 21 Parties: MINISTER FOR IMMIGRATION & CITIZENSHIP v CZAX and REFUGEE REVIEW TRIBUNAL File number: ACD 20 of 2012 Judge: NICHOLAS J Date of judgment: 17 August 2012 Catchwords: MIGRATION – whether open to Federal Magistrate to find that the Tribunal committed jurisdictional error on account of it having failed to consider "sufficiently, fairly or properly" the country information before it – whether open to Federal Magistrate to find that the Tribunal failed to "consider, or consider properly" the "profile" of the respondent – Federal Magistrate erred in finding that the Tribunal's decision was affected by jurisdictional error on these grounds Legislation: Migration Act 1958 (Cth) s 91R Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Swift v SAS Trustee Corporation [2010] NSWCA 182 Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Date of hearing: 22 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 51 Counsel for the Appellant: Ms AM Mitchelmore Solicitor for the Appellant: Clayton Utz Counsel for the First Respondent: Mr S Nguyen Solicitor for the First Respondent: City First Solicitors IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 20 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & CITIZENSHIP Appellant AND: CZAX First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 17 August 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the primary judge be set aside. 3. The amended application filed on 16 December 2010 be dismissed. 4. The first respondent pay the appellant's costs of the appeal and of the proceeding below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 20 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & CITIZENSHIP Appellant AND: CZAX First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE: 17 August 2012 PLACE: SYDNEY REASONS FOR JUDGMENT Background 1 This is an appeal from a judgment of a Federal Magistrate (Neville FM) given in favour of the first respondent (the respondent) in a proceeding for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). By its decision the Tribunal affirmed the decision of a delegate of the appellant (the Minister) made on 12 April 2010 to refuse the respondent's application for a protection (Class XA) visa. The primary judge found that the Tribunal's decision was affected by jurisdictional error. His Honour ordered that writs of certiorari and mandamus should be issued in order to quash the Tribunal's decision and compel the Tribunal to determine the respondent's application for a protection visa according to law. 2 The Minister has appealed the primary judge's decision. He contends, in substance, that the primary judge engaged in impermissible merits review, that the two particular errors attributed to the Tribunal by the primary judge were not errors at all and, even if they were, they were not jurisdictional errors. It is common ground that unless the Tribunal's decision was affected by jurisdictional error, the respondent's application for judicial review ought to have been dismissed. The question therefore is whether the primary judge erred in finding that the Tribunal's decision was affected by jurisdictional error. Relevant Statutory Provisions 3 The provision of the Migration Act 1958 (Cth) (the Act) most relevant to a consideration of the issues arising in this appeal is s 91R. It relevantly provides: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. The Tribunal's Decision 4 In its reasons for decision the Tribunal recounts details of the respondent's application for a protection visa, her interview by the delegate of the Minister and other information which emerged during the course of the Tribunal hearing at which the respondent appeared and presented arguments. The following summary is drawn from the Tribunal's reasons. The protection visa application 5 According to her application, the respondent was born in Fiji in 1969. She is ethnically a Fijian and a Christian by religion. The respondent left Fiji in December 2009 to visit her family in Australia during the holiday period and to "take a break" from her stressful employment. Prior to her departure from Fiji, she was employed as a personal assistant to the Chief Executive Officer (CEO) of the Fiji Broadcasting Corporation Ltd (FBCL). She commenced her employment with FBCL in April 2009. 6 Between September 1997 and August 2008 the respondent worked as a secretary in the Fiji School of Medicine in Suva. She resided at the same address from December 2007 until December 2009. 7 The respondent is related to Fiji's deposed Prime Minister, Mr Laisenia Qarase. When she was first recruited by FBCL, she was employed on a probationary basis for six months. According to the respondent, when management found out that she was related to Mr Qarase, the period of her probation was extended by another six months. She said that she found her work stressful because her e-mail communications were monitored and she was expected not to associate with the Qarase family. She said that she was "always under threat at work". Her stress and anxiety was exacerbated by the death of her two older children in a car crash in 2009. 8 The respondent claimed that she would be singled out for "victimisation and persecution" if she were to return to Fiji. In particular, she claimed that she feared being taken in for questioning because she had visited Mr Qarase before leaving for Australia to obtain a letter of support from him. 9 The respondent also said that she had worked at the Fiji School of Medicine for 11 years but that she had to resign because of "constant victimisation". This victimisation, according to the respondent, commenced after she took a month off to care for her sick aunt who is the wife of Mr Qarase. The respondent said that she also supported her aunt and her aunt's family during Mr Qarase's first court case. 10 The respondent said that she is currently staying with her cousins in Australia who are members of the Fiji Democracy and Freedom Movement (FDFM) which she too had joined. She claimed that she was concerned about the future of her two surviving children, whose progress and education might be hindered because of their familial ties to Mr Qarase. 11 The respondent claimed that she "breached" her contract of employment with FBCL because she contacted Mr Qarase prior to her departure. The respondent claimed that this, coupled with her familial ties to him and her association with the FDFM, may lead the authorities to believe that she had disclosed confidential information to the interim government. The interview by the Minister's delegate 12 In its reasons, the Tribunal gave a detailed account of the respondent's interview by the Minister's delegate in March 2010. According to the Tribunal, the following information emerged from that interview: The respondent feared she would be questioned by the authorities in relation to her employment as a personal assistant to the CEO of the FBCL. The respondent's e-mails were monitored by a military desk within the FBCL. She asked her family not to use her work e-mail or work telephone. The respondent said that Mr Qarase is her father's first cousin. The respondent agreed that even though her employer was aware of her familial ties with Mr Qarase she was still permitted to continue in her employment. The respondent said that she had approached the FDFM and offered her secretarial services to the movement, but that she had not yet taken up this position. She said that she was advised to follow through with her protection visa application before doing so. The Tribunal hearing 13 In its reasons, the Tribunal also gave a detailed account of the evidence the respondent put forward at the hearing. The following further information emerges from that account: The respondent's husband, whom she married in 1996, was providing her with financial assistance. The respondent's parents are deceased. The respondent's late father and Mr Qarase are first cousins. One of the respondent's brothers lives in Australia, another brother and sister live in the United Kingdom, and her remaining two sisters and four brothers live in Fiji. The respondent's employment by the Fiji School of Medicine was terminated in August 2008 because she had taken leave without pay to look after Mr Qarase's wife who had been admitted to hospital. Television footage also showed the respondent visiting a court in an effort to obtain information about Mr Qarase, who had been taken in for interrogation at that time. The respondent commenced employment with the FBCL in April 2009. A few months after her employer became aware of her relationship with Mr Qarase, the respondent was told that she had to disassociate herself from her family. The respondent tendered her resignation in January 2010. She sent the CEO of the FBCL an e-mail which she said was friendly and professional. She said that she received a response to her e-mail from Human Resources on behalf of the CEO which accepted her resignation but also indicated that the CEO was disappointed with her decision. She said that the e-mail included a statement to the effect that she was a spy for Mr Qarase. She had apparently not mentioned this e-mail accepting her resignation to the delegate. 14 The Tribunal referred to various supporting documents submitted by the respondent in support of her application. These included a letter from the National President (Australia) of the FDFM stating that the respondent was "an innocent victim of the political, economical and humanitarian crisis that has unfolded in Fiji for the last three years" and that she had been "harassed and pressured at work unfairly". It stated that the respondent's e-mails and telephone calls were closely monitored, and that she was pressured to cut ties with relatives. It also stated that the respondent would face an increased risk of harm in Fiji because she had agreed to act as the "interim secretary" of the executive committee of the FDFM. 15 The documents referred to by the Tribunal also included a letter from the respondent's husband dated December 2009 stating that he had worked for a British security company in Iraq since 2004, that he visited Fiji in May 2008 at which time he was monitored by the military and that his wife was "under threat with her current employment". They also included documents which were originally submitted in support of her application for a Visitor visa, one of which was a letter from Mr Qarase. 16 In response to a request by the Tribunal, the respondent agreed to provide it with a copy of the e-mail she received from Human Resources which referred to her as a spy for Mr Qarase. However, according to the Tribunal's reasons, the e-mail was never produced. 17 Country information drawn from various reports prepared by the Department of Foreign Affairs and Trade (DFAT) was put to the respondent during the course of the hearing for comment. This information was central to the Tribunal's ultimate evaluation of the risks facing the respondent were she to return to Fiji. This information is referred to in para [76] of the Tribunal's reasons which is extracted later in these reasons. Key elements of THE Tribunal's Reasoning 18 The Tribunal noted that the respondent claimed to have a well founded fear of persecution based upon her political opinions and her membership of a particular social group. In this regard, the respondent placed emphasis upon her close relationship with Mr Qarase and her involvement with the FDFM. She also claimed that "ordinary people" were "suppressed" for speaking out. 19 The Tribunal accepted various aspects of the respondent's account of her circumstances and prior experiences. In particular, it accepted that her late father was Mr Qarase's first cousin, and that she had a close relationship with Mr Qarase and his family. It also accepted that her televised appearance at a court house in support of Mr Qarase at a time when she was looking after his wife, led to her dismissal from employment by the Fiji School of Medicine. The Tribunal also accepted that the respondent's e-mails were monitored and that she was told not to openly associate with Mr Qarase after her familial relationships with Mr Qarase was discovered. 20 At paras [70] and [71] of its reasons the Tribunal addressed the respondent's claims of persecution at work and referred, in that context, to s 91R(1)(b) of the Act which required the Tribunal to be satisfied, if it was to determine the respondent's application favourably to her, that any such persecution involve "serious harm" to the respondent. The Tribunal stated: [70] The Tribunal [sic] claimed to have been victimised and persecuted at work. These claims, however, boiled down to her dismissal from the Fiji School of Medicine and being monitored at the FBCL. The Tribunal appreciates the pain, stress and inconvenience suffered by the applicant when she lost her job at the Fiji School of Medicine. The applicant did not claim to have suffered any financial hardship and was able to find another comparable job at the FBCL. While she may have received warnings and encountered some difficulties at her new job when her emails were monitored and she had to pretend that she had ceased her ties with her family, she was able to communicate with her family through her private email account, she did not cease to visit Mr Qarase and suffered no consequences. Indeed, rather than being dismissed, her probationary period was extended, clearly indicating that her employer had no concerns about her familial ties or political opinion. The Tribunal is not satisfied that the applicant's employment related experiences in Fiji amount to seriou sharm [sic] for the purposes of s.91R(l)(b). [71] The applicant claims that her decision to remain in Australia and resign from her position at the FBCL has given rise to the perception that she had spied for her family and may have shared information obtained during her employment at the FBCL. However, she was unable to provide a satisfactory answer when asked what kind of secret information she may have come across that could have concerned the military regime. The applicant further claimed that her employers had felt that she was in a position to disseminate confidential information in Australia. When asked how she had found out about this, she said a few people in the company told her that her boss was very disappointed upon learning that the applicant would not be returning back to Fiji. When it was put to her that her boss may have been disappointed because she was a good Personal Assistant, she said this was possible, but her employer was worried that she was in possession of sensitive information because of her job. When asked why the FBCL continued to employ her if she was not trusted, she knew "it was coming up"; and that her email and phone line were being monitored. The Tribunal finds the applicant's evidence in this regard vague and unconvincing. The Tribunal stated (at [72]) that it did not accept that the respondent was perceived to be a spy by the FBCL or any of its executives or employers or that the respondent had been accused of being a spy. 21 The Tribunal referred to country information provided by DFAT which indicated that "the prospect of family members of former ministers being directly targeted was 'highly unlikely'". It went on to note that, although one of Mr Qarase's sons was accused of corruption and harassed, there was no information before the Tribunal to suggest that any other family members of Mr Qarase had been harassed or mistreated. 22 The Tribunal also observed that there was no information before it to suggest that family members of Mr Qarase who are or have been civil servants are at greater risk of facing persecution in Fiji. 23 The Tribunal then stated (at paras [74] and [75]): [74] The Tribunal, on the basis of the evidence before it, is not satisfied that the applicant has been harmed in the past or that, if she were to return to Fiji now or in the reasonably foreseeable future, there is a real chance that she will be harmed by the military regime or the FBCL for the reason of her political opinion, membership of the particular social group of her family or the perception that she was/is a spy. The Tribunal is of the view that it is highly unlikely that the applicant will be targeted by the regime and is not satisfied that she faces a real chance of persecution for the reason of her membership of the particular social group of Mr Qarase's family. [75] The applicant is a highly qualified and experienced secretary/typesetter. Whilst the Tribunal accepts that she may find it difficult to find a job in the public sector, she provided no satisfactory reason as to why she would be unable to find a job in the private sector. In addition, she is supported financially by her husband and the Tribunal is satisfied that if the applicant were to return to Fiji she would not face financial hardship or be denied capacity to earn a livelihood, where such hardship or denial threatens her capacity to subsist: s.91R(2) of the Act. 24 It is clear from these paragraphs that the Tribunal gave consideration to s 91R(2) of the Act. Moreover, these paragraphs make clear that the Tribunal was satisfied that the respondent did not face any financial hardship that would threaten her capacity to subsist: see subparas (d)-(f) of s 91R(2). 25 The Tribunal noted that it had considered the respondent's claim based upon her activities in Australia and her claim that she would be questioned by the authorities if she was to return to Fiji. It accepted that she may have attended some meetings of the FDFM and the SDL (a local political party referred to by that acronym) and that she may have assisted the FDFM Executive Committee with paperwork. The Tribunal then said (at para [76]): [76] … As it was put to her at the hearing, DFAT has advised that they are not aware of reports of ordinary individuals who are 'known' to be opposed to the regime being subject to harm unless they have also publicly expressed opposition to or criticism of the regime. DFAT was not aware of ordinary or past-members of Fiji political parties being subjected to harm unless they are high-profile politicians or vocal opponents of the regime. DFAT considered harm to these ordinary or past members fairly unlikely. DFAT has also advised ordinary Fijians participating in anti-regime protect activities outside of Fiji could potentially be subject to harm upon returning to Fiji, although generally only high profile activists are targeted by the regime. The most likely form of harm to individuals in this category would be monitoring and intimidatory threats. In some cases, where the individual is high profile, the regime may also place restrictions on travel and potentially even impose short periods of detention, or charge them with offences by the regime as a form of harassment (RRT Country Advice Services 2010, Email to Department of Foreign Affairs and Trade 'Re: RRT Country Information Request FJI36727', 24 May; and Department of Foreign Affairs and Trade 2010, DFAT Report No. 1167 – Fiji: RRT Information Request: FJI36727, 6 July). The Tribunal, on the basis of the evidence before it, is not satisfied that the applicant is perceived to be a high-profile politician or vocal opponent of the regime. Outside of the matters concerning her employment, discussed above, the applicant did not suffer serious harm and was not targeted by the military regime for the reason of her familial ties with Mr Qarase. The Tribunal is not satisfied that she was or is perceived to be 'high profile' on account of her familial ties alone. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Fiji for the reason of her political opinion and activities in Australia. The Tribunal is not satisfied that the applicant faces a real chance of persecution for the reason of a combination of her membership of Mr Qarase's family and her political opinion… 26 Ultimately, the Tribunal stated (at para [78]) that it did not accept the respondent had been harmed in the past or that, if she was to return to Fiji now or in the reasonably foreseeable future, there was a real chance that she would be harmed for a Convention reason. The Tribunal also stated that it was not satisfied that the respondent's fear of persecution was well founded. The Federal Magistrate's Decision 27 In his reasons for decision, the primary judge also recounts the factual background relevant to the respondent's claim, and gave a brief summary of the Tribunal's reasons for decision. His Honour included extracts from paras [76] and [78] of the Tribunal's reasons in his own reasons for judgment. Paragraph [76] of the Tribunal's reasons became the focus of the first of his Honour's criticisms of the Tribunal's reasons for decision. I shall return to those criticisms shortly. 28 The three grounds of review relied upon by the respondent before the primary judge were set out at para [24] of his Honour's reasons. The first was that the Tribunal failed to identify relevant issues. The second was that the Tribunal considered irrelevant issues. It is apparent from the primary judge's reasons that he did not consider that either the first or second of the grounds of review could succeed. The respondent did not suggest that his Honour committed any error in rejecting these grounds of review and nothing more need be said of them. 29 The third ground of review relied upon by the respondent asserted that "[t]he Tribunal failed to properly consider the information before it." The particulars given in relation to this ground were as follows: (a) The tribunal considered the DFAT information that only high profile members of the community were at risk of being targeted; (b) The applicant may be considered as being a high profile member of the Qarase family due to her level of involvement in the family. The information obtained from DFAT may therefore be used to the advantage of the applicant; (c) The applicant's profile in the community was significantly tarnished to a point of losing her employment at the Fiji School of Medicine as a result of being recorded and televised in the company of Mr Qarase at the Local Court in Fiji; (d) The applicant faced discrimination when she was in employment of FBCL; (e) Evidence before the Tribunal noted that the applicant feared ongoing harassment, intimidation and torture; (f) Evidence provided by the applicant included her reasons for this fear. These reasons were that she was in possession of sensitive information which if disseminated may have effected [sic] the country. Particularly noted was the [sic] information which was broadcast through the news to the public was censored. The applicant had the ability to access the uncensored version of events which were broadcast; (g) The abovementioned accessibility, coupled with the prior adversities during the applicant's employment at the Fiji School of Medicine has caused her current fears. The Tribunal failed to make this connection. 30 However generously the particulars to this ground of review are construed, it is impossible to see how it raises anything other than a challenge to the Tribunal's resolution of factual questions raised during the course of the review. No jurisdictional error of any kind is specified including, in particular, either of the two jurisdictional errors which the primary judge found the Tribunal to have made. 31 Following a discussion of what the primary judge referred to as the "jurisprudential framework" relevant to the case, his Honour stated at para [70] that the "Tribunal's decision may be disposed of by two short points, either or both of which lead to the relief sought by the [respondent] being granted and the matter being remitted to the Tribunal for re-determination according to law". 32 The first ground upon which his Honour found jurisdictional error on the part of the Tribunal was explained at paras [71]-[74] of his reasons: [71] The first ground on which I find there has been jurisdictional error relates to the Tribunal's consideration of the "country information." As noted earlier in these reasons, at [76] of the Tribunal's reasons, it accepted the following proposition: DFAT has also advised ordinary Fijians participating in anti-protest activities outside of Fiji could potentially be subject to harm upon returning to Fiji, although generally only high profile activists are targeted by the regime. [72] The reality is that the Applicant cannot properly be described as an "ordinary Fijian." She is closely related to a deposed former Prime Minister. In the past, she has lost her employment, and had her email communication monitored. Such matters were accepted by the Tribunal. While such matters may be at the lower end of a spectrum of harm, and certainly so when compared to threatened or actual physical harm, nonetheless the matters complained of and accepted by the Tribunal, in my view, come within the parameters of s.91R(2), and in particular, sub-paragraphs (d), (e) and/or (f). [73] If it be the case that DFAT's advice, which was accepted by the Tribunal, was that "ordinary Fijians participating in anti-protest activities outside Fiji could potentially be subject to harm upon returning to Fiji", it must follow that a higher profile person, such as the Applicant, who (it must be accepted) has engaged in 'political [opposition] activities' while in Australia, must be at greater risk than the "ordinary Fijians" to which the DFAT country information referred. [74] In such circumstances, in my view, the Tribunal did not consider sufficiently, fairly or properly, the country information before it in the light of the accepted circumstances of the Applicant. In a footnote to para [74] his Honour stated that he need not decide whether the decision of the Tribunal was "illogical" or "irrational" in the sense discussed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. His Honour observed that no such argument was put to him and, understandably, the respondent did not seek to put such an argument in this Court. 33 The second ground upon which his Honour found jurisdictional error on the part of the Tribunal is contained in paras [75]-[76]: [75] The second ground on which I find that there has been jurisdictional error in this case concerns the Tribunal's failure to consider, or consider properly, the "profile" of the Applicant. Notwithstanding authority of the Full Court of the Federal Court regarding the [relative] irrelevance of the nature and or prominence of the profile of the applicant in question in V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 and in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, both cases now of long-standing, the Tribunal plainly considered that the Applicant's "profile" was insufficient to warrant any real or realistic chance that her activities in Australia in support of political parties would place her at any relevant risk upon her return to Fiji. As the cases mentioned confirm, and contrary to the view expressed by the Tribunal, it is not a requirement that the risk of harm can or should be confined only to "high profile" applicants. [76] Coupled with her familial relationship with the former, deposed Prime Minister of that country, in my view, the Tribunal failed to consider properly the political activities of the Applicant in Australia in support of political activists who are opposed to the current military regime in Fiji. The Tribunal improperly imputed to the Applicant the necessity that her activities were, or be, of such a kind that her "profile" would thereby be of such an order that her antipathetic activities would certainly come to the attention of the Fijian authorities. Only in such circumstances, it would appear, would the Tribunal consider her to be at risk of the relevant 'serious harm' on a return to her native country. To so require, in my view, amounts to jurisdictional error. 34 His Honour confirmed at para [77] that, apart from the two errors that he identified in paras [71] to [74] and paras [75] to [76] of his reasons, he did not consider that any of the grounds of review relied upon by the respondent had been made out. The Grounds of Appeal 35 In this Court, the Minister's notice of appeal consists of two grounds. First, it is said that the primary judge erred in holding that the Tribunal failed to consider country information before it "sufficiently, fairly or properly", and that such failure amounted to a jurisdictional error. Secondly, it is said that the primary judge erred in holding that the Tribunal failed "to consider, or consider properly" the "profile" of the respondent and that such failure amounted to a jurisdictional error. SUBMISSIONS Ground One 36 As to the first ground of appeal, Counsel for the Minister argued that the primary judge's conclusion that the Tribunal did not consider the country information before it "sufficiently, fairly or properly" was the product of judgments of fact which were not for his Honour to make, and was based on misrepresentations of the Tribunal's reasons. These "judgments of fact" are said to be found in paras [71]-[74] of the primary judge's reasons, and relevantly include the following: That the respondent cannot properly be described as an "ordinary Fijian" by reason of her close relationship with Mr Qarase (at para 72]); That the respondent's loss of employment and monitoring of emails constitute serious harm of the kind referred to in s 91R(2), albeit "at the lower end of the spectrum" (at para [72]); and That it must follow that a higher profile person such as the respondent must be at a greater risk than "ordinary Fijians" (at para [73]). 37 Counsel for the respondent argued that the primary judge's decision was correct for the reasons given in his reasons for judgment. Ground Two 38 As to the second ground of appeal, the Minister submitted that the primary judge (at paras [75]-[76]) has mischaracterised the Tribunal's reasons in coming to the conclusion that the Tribunal failed to consider, or consider properly, the "profile" of the respondent. 39 In relation to the second ground of appeal, Counsel for the respondent again submitted that the primary judge's decision was correct for the reasons given by him. CONSIDERATION 40 The question the primary judge was required to decide was whether the Tribunal's decision was affected by jurisdictional error. His Honour held that it was. In my opinion, there was no proper basis for doing so. 41 The primary judge expressed the view (at para [72]) that the respondent's previous loss of employment and the monitoring of her e-mail communications constituted harm of the kind identified in subparas (d), (e) and (f) of s 91R(2) of the Act. 42 Whether or not the respondent's loss of employment or the monitoring of her e-mail communications constituted, in the language of s 91R(2), "significant economic hardship" (subpara (d)), "denial of basic services" (subpara (e)) or the "denial of capacity to earn a livelihood of any kind" (subpara (f)) which had threatened, or might in the foreseeable future threaten, the respondent's "capacity to subsist" was a question of fact for the Tribunal to decide. Contrary to his Honour's view of the facts, the Tribunal was satisfied that the respondent did not face any hardship that denied her the capacity to earn a living or that otherwise threatened her capacity to subsist in Fiji. 43 It is clear from a reading of the reasons of the Tribunal that it was not satisfied that there was a real chance that the respondent would be at risk of serious harm (including any of the particular instances of harm referred to in s 91R(2)) if she was to return to Fiji now or in the foreseeable future. Significantly, it was not suggested by the primary judge that the Tribunal's reasons reflected any misunderstanding on its part as to what might constitute serious harm for the purpose of s 91R of the Act. In fact there is nothing in the Tribunal's reasons to suggest that the Tribunal misunderstood s 91R in any respect. 44 So far as the country information is concerned, the primary judge's reasons (at para [73]) indicate that he understood this to show that "ordinary Fijians participating in anti-protest activities outside Fiji could potentially be subject to harm upon returning to Fiji". From this, his Honour reasoned, "it must follow a higher profile person … who … had engaged in 'political [opposition] activities' while in Australia must be at greater risk than the 'ordinary Fijians'" to which the country information referred. 45 It is difficult to read para [73] of his Honour's reasons as anything other than a criticism of the logicality of the Tribunal's reasoning. Nevertheless, the footnote to the next paragraph (para [74]) makes clear that his Honour did not need to consider any question as to logicality of the Tribunal's reasons because, as his Honour plainly acknowledged, no argument based upon SZMDS or any alleged illogicality of the Tribunal's reasons was advanced. All of this tends to confirm, as I think is otherwise clear, that what the primary judge did here was to interpret the country information for himself, and express his preference for a view of the facts based upon that information and his own interpretation of it. 46 The failure of a Tribunal which is amenable to judicial review for jurisdictional error to give "proper, genuine and realistic consideration" to evidence relevant to a review conducted under the Act may constitute jurisdictional error. Ultimately, however, the question that must be addressed is whether there has been a failure on the part of the Tribunal to exercise its jurisdiction in accordance with the requirements of the Act. The fact that a Tribunal has not given "proper, genuine and realistic consideration" to evidence may or may not justify a conclusion that there has been such a failure. Whether or not it does so depends upon what that expression means. Caution must be exercised before finding that a Tribunal had committed jurisdictional error because it did not give "proper, genuine and realistic consideration" to evidence. Epithets of that kind "[t]aken out of context and without understanding their original provenance … are apt to encourage a slide into impermissible merits review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] per Basten JA (with whom Allsop P agreed) cited in Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30]. 47 It was not suggested by the respondent that the Tribunal did not afford her a hearing in accordance with the requirements of the Act. Further, the primary judge rejected the respondent's submission that the Tribunal failed to take a relevant consideration into account or that it took an irrelevant consideration into account. The Tribunal gave detailed reasons for its decision which indicate to me that the Tribunal gave careful consideration to the respondent's claims and the evidence before it including, in particular, the relevant country information. In my opinion, it was not open to the primary judge to find that the Tribunal did not give consideration to the country information "sufficiently, fairly or properly" in the sense that expression would have to be understood if it was to form the basis for a conclusion that the Tribunal committed jurisdictional error. 48 As to the second ground relied upon by the primary judge in finding jurisdictional error, what I have said in relation to the first ground relied upon by him applies to it with equal force. The primary judge said that the Tribunal failed "to consider, or to consider properly" the respondent's "profile" and that it "failed to consider properly" the respondent's political activities in Australia. It is clear that the Tribunal considered the respondent's political activities in Australia. It was not satisfied that her political activities in Australia put her at risk of serious harm in Fiji. It was not open to the primary judge to find that the Tribunal committed jurisdictional error on the basis that it failed to give consideration to the respondent's "profile" or her political activities in Australia in circumstances where its reasons for decision show that it plainly did so. 49 The primary judge said (at para [76]) that the Tribunal: … improperly imputed to the Applicant the necessity that her activities were, or be, of such a kind that her "profile" would thereby be of such an order that her antipathetic activities would certainly come to the attention of the Fijian authorities. Only in such circumstances, it would appear, would the Tribunal consider her to be at risk of the relevant 'serious harm' on a return to her native country… 50 The Tribunal was of the view that the respondent was not a "high profile activist", "high profile politician" or "vocal opponent of the regime" who would be targeted by the regime. In those circumstances, the Tribunal was not satisfied that the respondent faced a risk of serious harm if she was to return to Fiji. There was nothing impermissible in this process of reasoning. Nor was there any basis for his Honour to conclude that the Tribunal imposed any special requirement upon the respondent in terms of what could constitute serious harm for the purposes of s 91R. The Tribunal did not impose any special requirement upon the respondent. It considered her claims in accordance with the requirements of s 91R and all other relevant provisions of the Act. DISPOSITION 51 The appeal should be allowed. The orders made by the primary judge will be set aside. There should be an order dismissing the respondent's amended application. The respondent must pay the costs of the proceeding before the primary judge and the costs of the appeal. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 17 August 2012