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WZAOA v Minister for Immigration & Anor (No.2) [2011] FMCA 20 (31 January 2011)

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WZAOA v Minister for Immigration & Anor (No.2) [2011] FMCA 20 (31 January 2011)

Last Updated: 2 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOA v MINISTER FOR IMMIGRATION & ANOR (No.2)

MIGRATION – Protection visa application – delegate’s decision notified to applicant twelve years after hearing – application for review of decision of Refugee Review Tribunal – applicant witness to abduction of girl subsequently murdered – whether fear of persecution – whether concession that abduction incident gave rise to no Convention reasons for fear of persecution – whether incorrect characterisation of relevant incident had substantive effect on Tribunal process – whether jurisdictional error.


Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Jiang v Minister for Immigration [2007] FCA 907
Kabir v Minister for Immigration (2010) 243 FLR 1; [2010] FMCA 132
Kabir v Minister for Immigration [2010] FCA 1164
Minister for Immigration and Multicultural Affairs v SZFDE & Ors (2006) 154 FCR 365; [2006] FCAFC 142
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470; [2005] HCA 77
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35
SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909
SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233
WZAOA v Minister for Immigration & Anor [2010] FMCA 619

SH Rogerson, “Waiting for Alvarado: How administrative delay harms victims of gender-based violence seeking asylum”, (2009) 55 Wayne L Rev 1811
K Werren, “Delay totally invalidates an administrative decision”, (2006) 3 UNELJ 91

Applicant:
WZAOA

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
PEG 100 of 2010

Judgment of:
Lucev FM

Hearing date:
7 December 2010

Date of Last Submission:
7 December 2010

Delivered at:
Perth

Delivered on:
31 January 2011

REPRESENTATION

Counsel for the Applicant:
Mr D Moen (pro bono)

Solicitors for the Applicant:
Not applicable

Counsel for the Respondent:
Mr R Hooker

Solicitors for the Respondent:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 100 of 2010

WZAOA

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. Just over 15 years ago, on 28 January 1996, the applicant, a citizen of Sri Lanka, arrived in Australia.
  2. Just over 13½ years ago, on 30 June 1997, the applicant applied for a protection visa. Just 16 days later, on 16 July 1997, a delegate of the first respondent, the Minister, determined to refuse the applicant’s application for a protection visa.[1]
  3. On 31 July 2009, more than 12 years after the Delegate’s Decision, the applicant was finally notified of the Delegate’s Decision to refuse her application for a protection visa in July 1997. No reason for that extraordinary administrative delay appears in the papers presently before the Court. The delay is, however, irrelevant for present purposes because the application before the Court is an application for review of the Refugee Review Tribunal[2] Decision[3] made as a consequence of an application by the applicant to the Tribunal for merits review of the Delegate’s Decision.[4]
  4. On 15 October 2009, approximately seven weeks after the application to the Tribunal for merits review of the Delegate’s Decision was made on 25 August 2009, the Tribunal heard the application for merits review. Following:
    1. the receipt of further submissions on behalf of the applicant on 30 October 2009;
    2. an invitation to comment on or respond to information sent to the applicant by the Tribunal on 27 November 2009; and
    1. a response to the above invitation from the applicant received on 10 December 2009,

almost a further six months passed before the Tribunal handed down the Tribunal Decision on 28 May 2010.[5] The Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a protection visa.[6] And so, 14 years and four months after the applicant’s arrival in Australia, the migration administrative decision-making process ground to a conclusion.

  1. On 25 June 2010 the applicant filed an application under s.476[7] of the Migration Act 1958 (Cth)[8] seeking judicial review by this Court of the Tribunal Decision affirming the Delegate’s Decision to refuse her a protection visa. On 16 July 2010 the s.476 Application came before this Court on a first directions hearing and was listed for hearing on 4 November 2010. An application for pro-bono assistance was made by the applicant, considered by the Court on the papers, and granted by the Court on 18 August 2010.[9] For reasons related to the personal circumstances of one of the Counsel the 4 November 2010 hearing was re-listed for 7 December 2010. Following that hearing judgment was reserved to be delivered on 31 January 2011.

Grounds of application for review

  1. The grounds of the s.476 Application are that:
  2. In the course of the hearing of the s.476 Application certain submissions were made concerning the above grounds of application for review, and whether they ought to be amended.[10] Ultimately, the applicant indicated that she was not seeking to expand the ambit of the s.476 Application,[11] and there was no application to amend the grounds.

Delegate’s Decision

  1. The application for a protection visa filed on 30 June 1997 refers to an “Attached Letter”[12] which does not appear to be attached.
  2. The substance of the Delegate’s Decision is as follows:
  3. Earlier in the Delegate’s Decision[14] under the heading “LEGAL FRAMEWORK” the Delegate had referred to the first criterion to be satisfied as being that in cl.866.221 of the Migration Regulations 1994 (Cth),[15] which provides as follows:

Application to Tribunal for merits review

  1. The application to the Tribunal for merits review of the Delegate’s Decision was filed on 25 August 2009. The application for merits review does not require grounds to be specified, and none were specified by the applicant.

Submissions and information provided to the Tribunal

5 October 2009 submission

  1. A three page handwritten submission was sent to the Tribunal by the applicant on 5 October 2009.[16]
  2. The 5 October 2009 Submission commences by requesting the Tribunal to consider “the following facts”.[17] Those facts, relevantly, are as follows:

7 October 2009 Response to hearing invitation

  1. A Response to the Hearing Invitation form was forwarded to the Tribunal on 7 October 2009, in which form the applicant requested that oral evidence be given by her husband. In describing how his evidence would be relevant to her case the applicant stated that “My fears of persecution derive from being his wife”.[19]

15 October 2009 submission

  1. On 15 October 2009 the applicant, via her migration agent, sent a further submission to the Tribunal.[20] This was the day of the Tribunal hearing. In the 15 October 2009 Submission it was said on behalf of the applicant as follows:

29 October 2009 submission

  1. On 29 October 2009 the applicant, via her migration agent, sent a further submission to the Tribunal, as follows:

Invitation to comment and response

  1. On 27 November 2009 the Tribunal sent the applicant a letter[23] inviting her to comment on a number of matters referred to in the letter, namely:
    1. an assertion that the Tribunal had no jurisdiction in relation to the applicant’s partner or child, because:
      1. the applicant’s child, born of a relationship between the applicant and her partner, was born in Australia after the Delegate’s Decision was made, and therefore the Tribunal had no jurisdiction with respect to the applicant’s child; and
      2. the applicant’s relationship with her partner could not be considered because the partner had not been added to the review application prior to the making of the Delegate’s Decision;[24]
    2. that the Tribunal, differently constituted had already determined that the applicant’s partner was not a person to whom Australia had protection obligations because his claims were not Convention related claims;[25]
    1. that the Tribunal might find that the applicant did not have a well founded fear of persecution for reasons of imputed political opinion or membership of a particular social group (spouses of political activists);[26] and
    1. that the Tribunal may be required to disregard fear of persecution of the applicant’s partner because of the provisions of s.91S of the Migration Act.[27]
  2. The applicant’s migration agent responded on her behalf in a submission to the Tribunal dated 9 December 2009.[28] The Applicant’s 9 December 2009 Response relevantly:
    1. provides an acknowledgement of the Tribunal’s lack of jurisdiction to consider claims made on behalf of the applicant’s child and partner; and
    2. asserts that the applicant was being persecuted because she was the partner of a person who has a well founded fear of persecution, and therefore, she too had a well founded fear of persecution for a Convention reason, namely, imputed political opinion or membership of a particular social group, being spouses of political activists.[29]
  3. The applicant did not accept that:
    1. her partner’s fears of persecution had been found not to be for a Convention reason by the Tribunal differently constituted; and
    2. section 91S of the Migration Act might require the Tribunal to disregard the applicant’s fears of persecution by reason of membership of a particular social group if they were founded on her partner’s fears of persecution.[30]
  4. The applicant asserted that the Tribunal should re-visit the question of whether her partner had a fear of persecution for a Convention reason based on the evidence that he gave to the Tribunal, in this matter, concerning threats against him for political reasons which were still current, and which were said to be “unanswerably fears of persecution for a Convention reason.”[31]
  5. It was submitted that the Tribunal was only obliged to disregard the applicant’s fears of persecution as a consequence of s.91S of the Migration Act if it accepted that the applicant’s fears of persecution through being the partner of her husband were for membership of the particular social group as the spouse of a political activist, rather than imputed political opinion, and that it was “unanswerable” that the applicant’s partner’s fear of persecution was attributable to political belief or imputed political belief.[32]

Tribunal Decision

  1. The Tribunal determined that it did not have jurisdiction with respect to the applicant’s partner or child, for essentially the same reasons as set out in the 27 November 2009 Letter.[33]
  2. In dealing with the claims and evidence the Tribunal said that at hearing:
  3. In relation to this claim the Tribunal found that:
  4. The Tribunal then noted that what remained was the applicant’s alleged fear of persecution by reason of membership of a particular social group, being spouses of political activists, and political opinion, being a political opinion imputed to her on the basis of her husband’s claimed political opinion.[36] Essentially, the applicant claimed to fear persecution for reasons tied to the fear of persecution asserted by her partner. The Tribunal proceeded to deal with those reasons.
  5. Firstly, the Tribunal noted that the applicant’s partner’s claims had been rejected by a delegate, and on review by the Tribunal, differently constituted, in April 2000. No judicial review of the April 2000 Tribunal Decision was initiated. The Tribunal then noted that:
    1. it was asserted that the applicant’s partner was a UNP supporter;
    2. persons said to be JVP supporters disappeared after an attack on the applicant’s partner in August 1989;
    1. the applicant’s partner claims that the relatives of the persons who disappeared attempted to harm him because they thought he had informed upon those persons to the police and that that had led to the disappearance of those persons;
    1. the applicant’s partner’s assertion that he was chased by a jeep which intended to run him off the road in April 1995 and his assumption that those same relatives were still “after him”; and
    2. the April 2000 Tribunal decision found that the targeting of the applicant was not for a Convention reason but was motivated by revenge.[37]
  6. At the Tribunal hearing of this matter the applicant’s partner said that the same people were still “after him” as recently as 15 months ago, and he gave further evidence that he tried to let land he owns in Sri Lanka to gem miners, but the miners had been warned off by JVP activists who had been told not to do business with him, and had said that they would harm him if they were able to get hold of him. No other detail was provided to the Tribunal, and the incident was more than a year old by the time of the Tribunal hearing.[38]
  7. The Tribunal observed that it was not clear whether the persons who disappeared were members or operatives of the JVP, and the applicant did not know whether one of the persons who disappeared was one of the people involved in the incident in August 1989. The Tribunal also noted that the visit of these relatives of the person(s) who disappeared had occurred some six years after the event. The Tribunal had regard to independent evidence which indicated that the JVP had become a political party and had abandoned an armed revolutionary approach, before concluding that:
  8. The Tribunal also did not, essentially because of a paucity of detail, accept that the events in relation to the warning off of the prospective lessees of the gem mine occurred.[40]
  9. The Tribunal therefore found that the claims advanced by the applicant’s partner did not fall within the ambit of Convention reasons for fear of persecution.[41] The Tribunal found that the applicant’s claims were entirely based on her relationship with her partner, but that her partner did not have any Convention claims, and thus the basis for the applicant’s claims was not Convention related, and that she therefore did not face a real chance of persecution for a Convention reason, and that her fear of persecution was therefore not well founded.[42]
  10. The Tribunal affirmed the Delegate’s Decision not to grant the applicant a protection visa.[43]

Jurisdictional error

  1. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error.[44] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks the wrong question;
    1. ignores relevant material; or
    1. relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected, resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[45]

Consideration

  1. The grounds of review relate solely to the Tribunal’s characterisation and consideration of an incident involving a young girl in Sri Lanka in 1995 which was said to have been witnessed by the applicant. There is no ground of review that the applicant did not have a well founded fear of persecution for a Convention reason based upon political opinion imputed to her on the basis of her partner’s claimed political opinion, or membership of a particular social group, being the spouse of a political activist. The latter issue does, however, impact upon a question considered below as to whether or not the applicant made a concession with respect to there being no Convention related reasons for a well founded fear of persecution associated with the abduction incident.
  2. An examination of the 5 October 2009 Submission shows that there was a claim that the applicant was an eye witness to the abduction of a young girl by an armed person in a van.[46] After recovering from the emotional shock of witnessing the abduction incident the applicant reported the matter to a police station. Thereafter, a newspaper reported the murder of a young girl, and included a photograph which the applicant immediately identified as that of the young girl whom she had seen abducted. The applicant was subsequently visited at home by the police a number of times, and the police made inquiries about the abduction, and advised the applicant to avoid travelling alone. The applicant says that six days later she was going to catch a bus when a man came by, cycling, and followed her. The applicant says that she realised the danger and immediately rushed into a nearby home and with the assistance of a neighbour reported the matter to the police but the police did not take any action. Consequently, the applicant says that she realised the situation was dangerous and decided to leave Sri Lanka to save her life.
  3. In a manner not explained, the Tribunal failed to consider the abduction incident, but rather referred to the applicant’s claims “in relation to her witnessing a motor vehicle accident where a girl was killed”, that is, the running down incident.[47]
  4. The applicant says that the Tribunal committed jurisdictional error because it:
    1. mis-characterised the nature of the claim made by the applicant; and
    2. failed to consider the claim made by the applicant which was in relation to the abduction incident and not the running down incident.[48]
  5. There is no doubt that the Tribunal mis-characterised the nature of the incident which gave rise to the death of a girl in Sri Lanka in 1995 (or 1996), as a matter of fact, and that much is conceded by the first respondent. It therefore follows that the Tribunal failed to consider the actual incident relied upon by the applicant, that is, the abduction incident. It is, however, apparent that the Tribunal understood that the applicant asserted that she would be harmed as a consequence of witnessing an incident which resulted in the death of a girl in Sri Lanka in 1995, and it was that fear of harm which the Tribunal considered in determining whether or not the applicant had a well founded fear of persecution.
  6. The Tribunal therefore understood that, whatever the factual content of the incident concerned, what it was dealing with was an incident which resulted in the death of a girl, which incident was witnessed by the applicant, and as a consequence of which she asserted that she would be likely to suffer harm if she remained in Sri Lanka, and that that was the applicant’s claimed basis for having a well founded fear of persecution for a Convention reason.
  7. The respondents, in addition to arguing that the factual mis-characterisation of the incident did not affect the Tribunal’s consideration of the issue, say that:
    1. the claim which was said to have been mis-characterised was never, in any event, a claim founded upon a well founded fear of persecution for a Convention reason; and
    2. the applicant conceded that the abduction incident did not give rise to a well founded fear of persecution for a Convention reason, and, therefore, was not a claim pursued by the applicant before the Tribunal.
  8. As indicated above, it is conceded by the first respondent that the Tribunal mis-characterised the abduction incident by treating it as the running down incident. It follows from that that the Tribunal mis-characterised the incident and made an error of fact. However, the Tribunal did not consider the running down claim because of the concession that the “initial claims” were not claims which gave rise to a fear of persecution for a Convention reason.[49] The Tribunal did not have to consider that claim once the concession was made, for “it is for the applicant to provide evidence and argument sufficient to enable the decision-maker to establish the relevant facts,”[50] or “in support of her [or his] contention ... [of] a well-founded fear of persecution for a Convention reason.”[51] Thus, “[i]t is no part of the duty of the decision-maker to make the applicant’s case for him [or her].”[52] Therefore, no jurisdictional error arises. Even if the concession was the consequence of bad or negligent advice (of which there is no evidence), the Tribunal Decision is not vitiated by jurisdictional error.[53]
  9. The respondents argue that even if the Tribunal had characterised the claim correctly it would not have, or not been required to have, considered the abduction incident claim because:
    1. properly analysed, there was no claim made by the applicant in her 5 October 2009 Submission which tied her fear of persecution to a Convention reason; and
    2. concessions were made that the claim did not relate to a fear of persecution based upon a Convention reason.
  10. In the Court’s view when the 5 October 2009 Submission is properly analysed there is no tie or link to a Convention based reason which might give rise to a well founded fear of persecution. Accepting all that the applicant says that she witnessed in relation to the abduction incident there is nothing in her description of events which ties her fear of harm, and in particular her fear of being killed, to her race, religion, nationality, political opinion or membership of a particular social group. The applicant’s expression of fear is that:
  11. The applicant’s fear arises from her general perception of Sri Lankan politics and the character of Sri Lankan politicians. It has no nexus, as expressed, with her particular political opinion or membership of a particular social group, or her race, nationality or ethnic origin. If the applicant’s broad expression of fear set out above were found to be indicative of a well founded fear of persecution on the basis of, say, political opinion or nationality, there would be no bar to any person from any country making similarly sweeping general assertions about the nature of politics in their country of origin, thereby giving rise to a well founded fear of persecution. Such an unqualified and broad based approach to finding a well founded fear of persecution is not, generally speaking, consistent with the intent of the Convention or the Migration Act.
  12. None of the other matters that the applicant raises in her 5 October 2009 Submission, and in particular those that relate to the applicant’s time and subsequent events in Australia, raise Convention reasons for a well founded fear of persecution.
  13. The failure of the applicant to raise Convention based reasons for having a well founded fear of persecution in relation to the abduction incident is reinforced by the concession made by the applicant, through her migration agent, that the abduction incident did not give rise to a well founded fear of persecution for Convention based reasons. That concession was expressly made by the applicant in both the 15 October 2009 Submission and the 9 December 2009 Submission respectively, in the following terms:

and

“In our submission of 29 October [2009] we conceded that two of the reasons cited by [the applicant] as grounds for fearing persecution were not Convention reasons but averred that a third, being persecuted because she is the partner of a person who has a well founded fear of persecution, is a Convention reason ....”[56]

As has been said above,[57] the Tribunal was not required to consider the conceded claim.

  1. It was submitted by the applicant that the concession was vague, and, at least inferentially, not capable of constituting a proper or specific concession in its terms. However, there is nothing vague about the concessions made in either the 15 October 2009 Submission or the 9 December 2009 Submission (and especially when read together with the 7 October 2009 Response and the 29 October 2009 Submission). It is a clear and specific concession that the initial grounds put forward by the applicant for fearing persecution are not for Convention reasons.
  2. The applicant, however, also argued that the concession was vague or qualified by that part of the 29 October 2009 Submission which said as follows:
  3. The basis for this argument was that the concession related only to the applicant’s daughter’s immigration status. It is necessary to read the above quoted passages:
    1. in the context in which they appear in the 29 October 2009 Submission; and
    2. in the context of the overall submissions made by the applicant to the Tribunal.
  4. The reasons for the fear of persecution set out in the 29 October 2009 Submission are as follows:
    1. the applicant’s initial fears arising from the abduction incident and a fear that she might be targeted by the perpetrators;
    2. concerns that the applicant’s partner faces persecution on account of his political activities; and
    1. fears for the safety and welfare of the applicant’s daughter.
  5. As the 29 October 2009 Submission indicates the applicant wrote to the Tribunal on 15 October 2009, and:

That is, the reasons set out at sub-paragraphs (a) and (c) of the previous paragraph are not Convention reasons for fearing persecution. The applicant does, however, go on to say what the reason for the applicant’s fear of persecution is, namely that the fear that the applicant’s partner “... will be persecuted on account of political belief is a fear of persecution of [the applicant] ....”[60] Thus, the reason set out in sub-paragraph (b) of the previous paragraph is the reason that the applicant gave to, and relied upon before, the Tribunal as being that which gave rise to a well founded fear of persecution for a Convention based reason. That analysis is confirmed by the passage, cited above, from the 9 December 2009 Submission averring that a fear of persecution is based upon the political status of her partner.[61]

  1. For the above reasons, the Court is of the view that the concession made by the applicant was not qualified, at all, and in particular not by reference to the applicant’s daughter’s immigration status.
  2. The Court is therefore of the view that the concession was made by the applicant that her abduction incident claim had no nexus with any Convention reason for having a well founded fear of persecution.
  3. In the circumstances, the Court does not consider that there was any jurisdictional error by the Tribunal. The mis-characterisation of the abduction incident claim is not a material error of fact because it was in respect of a matter which was conceded not to be capable of giving rise to a well founded fear of persecution based on a Convention reason in any event. The error made, that is finding as a fact that the concession was made with respect to the running down incident rather than the abduction incident, did not affect the outcome. The Tribunal appreciated the fact that it was dealing with a fear said to arise from the witnessing of an incident which gave rise to the death of a girl in Sri Lanka in 1995 or 1996 and, having regard for the concession made in unequivocal terms, the Tribunal’s determination would have been the same had it considered the correct facts. This is, therefore, not a case where the error of characterisation, as the running down incident rather than the abduction incident, had a substantive effect on the way in which the Tribunal proceeded to assess the merits review application.[62]
  4. There was therefore no jurisdictional error committed by the Tribunal.
  5. Even if the Tribunal’s mis-characterisation, and failure to grant relief by reason of its failure to consider the abduction incident at all was a jurisdictional error, the Court is not inclined to grant prerogative relief in any event. Prerogative relief is discretionary. Prerogative relief need not be granted where the outcome of the grant of relief would lack utility or be futile,[63] in the sense that the outcome would not alter if the grant of prerogative relief requiring reconsideration of the matter by the Tribunal would not result in a different outcome. In this case, the outcome would be no different because, for reasons set out above, the abduction incident claim does not have as the foundation for the fear alleged a Convention based reason, and, further, the applicant conceded that to be the case. The grant of prerogative relief would therefore be futile, and, in the exercise of the Court’s discretion, should not be granted.
  6. In the circumstances, the application should be dismissed.

Conclusion

  1. The Court has concluded that:
    1. the Tribunal made no jurisdictional error in its determination; and
    2. even if the Tribunal did make a jurisdictional error, it would be futile to grant prerogative relief.
  2. There will therefore be an order that the application be dismissed.
  3. The Court will hear the parties as to costs.

I certify that the preceding 59Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-ninefifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate:


Date: 31 January 2011

[1] “Delegate’s Decision”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] In other contexts, administrative delay in relation to migration decisions may have deleterious legal and social consequences. In NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470; [2005] HCA 77 a delay of more than 4½ years between a Tribunal hearing and a Tribunal decision was held to be unfair, and to constitute jurisdictional error because “excessive delay in a post-hearing decision can totally invalidate an administrative decision”: K Werren, “Delay totally invalidates an administrative decision”, (2006) 3 UNELJ 91 at 95. See SH Rogerson, “Waiting for Alvarado: How administrative delay harms victims of gender-based violence seeking asylum”, (2009) 55 Wayne L Rev 1811 for a discussion of the effects of delay in relation to United States visa applicants who have been the victims of domestic violence in their country of origin.
[5] CB 398-406.
[6] CB 406.
[7] “s.476 Application”.
[8] “Migration Act”.
[9] WZAOA v Minister for Immigration & Anor [2010] FMCA 619.
[10] Transcript, page 16.
[11] Transcript, page 17.
[12] See, for example, CB 259-262.
[13] CB 273.
[14] CB 271.
[15] “Migration Regulations”.
[16] CB 345-347 is a copy of the submission sent from the Guildford Post Office by facsimile on 5 October 2009 (“5 October 2009 Submission”). At CB 348 a Case Note dated 6 October 2009 appears whereby a Tribunal officer confirms, in response to a call from the applicant, that the 5 October 2009 submission had been received.
[17] CB 345.
[18] CB 345; transcribed from the original without amendment. A further copy of the 5 October 2009 Submission appears at CB 366-368.
[19] CB 351; “7 October 2009 Response”.
[20] “15 October 2009 Submission”.
[21] CB 370-371.
[22] CB 379-384 (footnotes in original omitted).
[23] “27 November 2009 Letter”.
[24] CB 388.
[25] CB 388.
[26] CB 389.
[27] CB 389. Section 91S of the Migration Act provides as follows:

“For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.”
[28] “Applicant’s 9 December 2009 Response”; CB 393-396.
[29] CB 394.
[30] CB 394.
[31] CB 395.
[32] CB 395.
[33] CB 402 and 404.
[34] CB 402; “running down incident”.
[35] CB 404.
[36] CB 404-405.
[37] CB 405.
[38] CB 405-406.
[39] CB 405.
[40] CB 405-406.
[41] CB 406.
[42] CB 406.
[43] CB 406.
[44] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[45] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
[46] “abduction incident”.
[47] CB 404.
[48] The factual content of the running down incident is described by the Tribunal as follows:
“...the applicant reiterated that she fears returning to Sri Lanka because she witnessed a man run over a girl in 1995-1996 and she feels that she would be killed for this reason.”: CB 402.
[49] CB 404.
[50] SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233 at para.18 per Barker J.
[51] Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 576 per Gaudron J; [1999] HCA 14 at para.187 per Gaudron J.
[52] Prasad v Minister for Immigration and Ethnic Affairs (1985) FCR 155 at 170 per Wilcox J.
[53] Minister for Immigration and Multicultural Affairs v SZFDE & Ors [2006] FCAFC 142; (2006) 154 FCR 365 at 399 per French J; [2006] FCAFC 142 at para.129 per French J; SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189 at 207 per Gleeson CJ; Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; [2007] HCA 35 at para.53 per Gleeson CJ; Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
[54] CB 366-367.
[55] CB 370.
[56] CB 394.
[57] See para.40 above.
[58] CB 381-382. The reference to the “MRT” (Migration Review Tribunal) should obviously be read as a reference to the RRT (the Tribunal).
[59] CB 381-382.
[60] CB 382.
[61] See para.44 above; and CB 394.
[62] SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 at para.38 per Rares J.
[63] SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at 265 per Allsop J; [2006] FCAFC 2 at para.232 per Allsop J; Jiang v Minister for Immigration [2007] FCA 907 at para.30 per Bennett J; Kabir v Minister for Immigration [2010] FMCA 132; (2010) 243 FLR 1 at 26 per Lucev FM; [2010] FMCA 132 at paras.63 and 66 per Lucev FM; (affirmed on appeal in Kabir v Minister for Immigration [2010] FCA 1164).

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