Case: NAIZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 37
Outcome: cited
In NAIZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 37 (' NAIZ ') at [22], Branson J (with whom North J agreed) found jurisdictional error on the part of a Tribunal Member who, though acknowledging that internal relocation should be 'reasonable' in the circumstances: '...did not, as ... Randhawa [at] [16] ... requires, give consideration to the practical realities facing the appellant [a widow of advancing years] with respect to accommodation and care should she seek to relocate within Fiji ... the Tribunal was required to give consideration to how, in a practical sense, the appellant could be expected to relocate within Fiji.' 61 Here, the appellant was a Chinese Christian widow with young children who had been twice raped and who had never lived in Indonesia outside Jakarta. True it is that she was enterprising and employable. But on the material accepted by the Tribunal, anti-Chinese sentiment runs deep in Indonesia and the vulnerability of women to rape appears, from the Tribunal's findings, to be high. 62 It requires little empathy to understand that, although the appellant's precise fear of persecution as identified by the Tribunal relates to one man in Jakarta, she may well now suffer profound psychological difficulty in readjusting to Indonesian society and adjusting to a new place of residence in Indonesia at some place where, ex hypothesi , she appears likely to have no close family support. To observe that she had suffered an 'ordeal', yet appeared capable in Australia, where the social environment is entirely different and she has family support, is simply not to acknowledge the major difficulty in the 'practical realities', both psychological and physical, that now would confront her if returned to Indonesia. Who would befriend her? What support, if any, would be available? Would she be able to speak freely about her troubles (there is a suggestion in her materials, unexplored by the Tribunal, that even in Chinese-Indonesian circles shame attaches to a sexually assaulted woman)? Is a Chinese widow on her own in Indonesia especially apt to attract unwelcome sexual advances? 63 If a matter is not mentioned in a Tribunal's findings, this entitles a court to infer that the matter was not considered by the Tribunal to be material ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ (with whom Gleeson CJ agreed) at [69]). That the Tribunal Member engaged in no discussion of questions of those kinds suggests that the psychological aspects of the practical realities facing the appellant were not present to his mind. Given the strangeness of such matters not having been mentioned if they were considered, in my view it is appropriate to draw the inference that they were not considered. I do not wish to seem overcritical. The appellant's case was not a simple one. She had, according to the Tribunal, embroidered some facts and the Tribunal Member thought that a friend who gave evidence was suggesting that, even in the Australian context, she was less robust a person than the Tribunal considered her to be. Nevertheless, it is notorious that in the last 20 years or so the high potential for sexual assault, let alone repeated instances of it, to cause the victim serious psychological difficulties, has become widely accepted. I think that the kinds of potential difficulties to which I have referred were overlooked. There has in my opinion been, as in NAIZ , a failure by the Tribunal to ask itself (as Branson J put it) 'the right questions'.