AKS16 v Minister for Immigration

[2019] FCCA 142

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKS16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 142

Catchwords:
MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether the First Applicant was afforded a meaningful opportunity to participate in the Tribunal hearing – whether failure to consider an integer of Applicant’s claims – whether failure to consider or give weight to evidence – whether irrationality.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd

[1994] FCA 1074; (1994) 49 FCR 576

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;

(2016) 253 FCR 496

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA

26; (2003) 197 ALR 389

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802;

(2001) 233 FCR 136

Huai XinLi v Minister for Immigration and Citizenship [2008] FCA 902; (2008)

102 ALD 354

Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759;

(2000) 183 ALR 188

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;

(1999) 197 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR

[2003] FCAFC 126; (2003) 128 FCR 553

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No

2) [2004] FCAFC 263; (2004) 144 FCR 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant

S20/2002 [2003] HCA 30; (2003) 198 ALR 59

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152

First Applicant: AKS16

Second Applicant: AKY16

Third Applicant:  AKU16

Fourth Applicant: AKV16

Fifth Applicant: AKW16

Sixth Applicant:  AKX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 424 of 2016

Judgment of: Judge Barnes

Hearing date: 19 September 2017

Date of Last Submission: 18 October 2017

Delivered at: Sydney

Delivered on: 29 January 2019

REPRESENTATION

Solicitors for the Applicants: Sarom Solicitors

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 424 of 2016

AKS16

First Applicant

AKY16

Second Applicant

AKU16

Third Applicant

AKV16

Fourth Applicant

AKW16

Fifth Applicant

AKX16

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 28 January 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The First Applicant is a citizen of Fiji.  He arrived in Australia in December 2013.  He applied for a protection visa on 30 January 2014.  His wife and three children were included in the application as members of his family unit.

3. A fourth child was born to the First and Second Applicants in Australia on 30 April 2014.  She was taken to have been included in the visa application.  The delegate refused the application of 30 January 2014 on 26 June 2014.  The fourth child was the subject of a separate decision by the delegate of 6 July 2015.

4. The six Applicants sought review by the Tribunal.  They attended a Tribunal hearing on 4 June 2015 and, after the Tribunal was reconstituted, a further hearing on 7 September 2015.

5. The First Applicant (referred to for convenience as the Applicant) claimed to fear harm from the Fijian government and the military because he supported and was affiliated with the Social Democratic Liberal Party (the SDL).  He claimed that he had supported the SDL since September 2000 when he was physically abused by soldiers after he had been forced to transport supporters of George Speight (the leader of the 2000 coup in Fiji) while working as a driver. 

6. The Applicant also claimed that during the August 2012 trial of Laisenia Qarase (a former Fijian Prime Minister) he drove SDL supporters and that a soldier who recognised him from the 2000 incident had punched him.  There was a scuffle in which he retaliated.

7. Further, the Applicant claimed to fear harm because of the association between his late father (who was also a supporter of the SDL) and the son of Ratu Mara, a former leader of the SDL, in circumstances where the son (also called Ratu Mara) had escaped from Fiji.  He claimed that while his father was not involved in that escape, he had been taken to a military camp and had died some four days later. 

8. The Applicant also claimed that he had put forward an anti-regime motion for consideration at a meeting of members of the Lau Provincial Council in October 2013.

9. In addition, the Applicant claimed to the Tribunal that since coming to Australia he had started to be involved with the SDL (renamed SODELPA) and had attended weekly meetings in Griffith.

10. In May 2015, the Applicant made additional claims through his representative, in particular that he had become more involved with the SODELPA party and that in August 2014 he had attended a protest rally in Sydney against Frank Bainimarama, the Fijian Prime Minister, who was visiting Australia before the 2014 Fijian elections.  The Applicant claimed that at the rally he had been photographed with well-known anti-Bainimarama activists and in front of banners critical of Bainimarama and his regime.  He claimed his photograph had been used in material of the Fiji Democracy and Freedom Movement (FDFM) and may have come to the attention of Bainimarama or other military people who knew him from his past in Fiji.

11. The Applicant elaborated on his claims at the Tribunal hearings and in written submissions.  Transcripts of both Tribunal hearings are in evidence as annexures to the affidavit of the Applicant affirmed on 9 November 2016. 

12. The Second Applicant also gave evidence regarding their involvement with anti-Bainimarama groups in Griffith.  She claimed that she and her husband feared being harmed because they had been photographed with the most wanted people associated with the anti-Bainimarama movement and that she had posted material on Facebook indicating her support for SODELPA. 

13. Various documents and submissions were provided to the Department and Tribunal in support of the application.    

The Tribunal Decision

1. In its reasons for decision, the Tribunal referred to country information about the situation in Fiji, in particular in relation to the treatment of SDL members and supporters and members of FDFM.  It summarised the Applicant’s claims to fear harm from the Fijian government if he returned to Fiji on the basis of his political opinion arising from his past experiences in Fiji, including his physical abuse by military soldiers in 2000 because he was wrongly associated with a group of George Speight supporters; his involvement in a physical altercation with one of those soldiers in an incident in 2012; his father’s detention at a military camp and questioning in 2011 following what was described as the escape and subsequent death at sea of Ratu Mara; his role in putting forward an anti-regime motion at a meeting of the Lau Provincial Council; and his activities in Australia with SODELPA and FDFM, including attendance at a public anti-Bainimarama rally in 2014 and being photographed with prominent members of organisations such as SODELPA and FDFM at that rally.

2. The Tribunal also recorded that the Applicant’s wife had told it that she feared harm from the Fijian government because of her involvement with SODELPA and FDFM in Australia and her profile on the basis of photographs and material posted on social media.  She also relied, as did the other Applicants, on membership of the family unit of the First Applicant.

3. The Tribunal recorded that it had found the adult Applicants generally to be credible and honest witnesses who had given their evidence in a straightforward and candid manner.  It found that their evidence was mostly consistent, appropriately detailed in respect of their personal experiences, and not exaggerated.

4. The Tribunal accepted the Applicant’s claims that on the basis of family and community affiliations he was a supporter of Laisenia Qarase and the SDL in Fiji.  However, in the absence of specific claims or supporting evidence to the effect that he had been subject to unfair treatment by the regime specifically on the basis of his past affiliation with SDL, the Tribunal was not satisfied that he faced a real chance of harm in the reasonably foreseeable future on the basis of his past SDL affiliation or support.

5. The Tribunal accepted that the Applicant had been employed by a Fijian government department since 1991 as a sailor and subsequently as a driver and that his father had previously worked with the same department for some 30 years.  It accepted that the Applicant was also involved in driving a family van as a taxi from time to time during breaks in his employment.

6. In this context, the Tribunal was prepared to accept the Applicant’s claim that in 2000, while driving the family’s taxi van, he was stopped by a group of George Speight supporters who demanded that he take them to get supplies and that the van was then stopped by soldiers who incorrectly took the Applicant to be part of the group and physically abused him. 

7. The Tribunal found that the Applicant’s account of this incident was detailed and consistent, plausible and credible.  However it had regard to the fact that the Applicant had indicated that he had no more trouble from this incident until 2012, even though he saw one of the soldiers several times a year, that he had continued in the same employment and been in regular and close contact with the military barracks and soldiers and had lived at the same address.  The Tribunal was not satisfied that there was a real chance that the Applicant would face serious or significant harm in the reasonably foreseeable future on the basis of the 2000 incident.

8. The Tribunal also accepted as plausible and credible the claim that in 2012 the Applicant had been involved in an altercation and scuffle with a soldier who had been involved in abusing him in 2000.  However it found that on the Applicant’s own evidence he had not seen this solider again and that there were no further repercussions from that incident.  Hence it was not satisfied that there was a real chance that the Applicant would face serious or significant harm in the reasonably foreseeable future on the basis of the 2012 incident.

9. The Tribunal accepted that when the Applicant’s father died in July 2011 he was the captain of a ship owned by Ratu Mara and that it was plausible and consistent with independent information that, as an employee and associate of Ratu Mara, the Applicant’s father may have been questioned by the military around the time Ratu Mara departed from Fiji.  However the Tribunal did not accept that the evidence supported the Applicant’s inference that the questioning or treatment of his father in any way caused his father’s death (which according to the death certificate was caused by “respiratory failure, severe bronchial asthma”).  Nor was it aware of any reports indicating that in this context there had been any action (beyond questioning) by the regime.  The Tribunal was not satisfied that there was a real chance that the Applicant would face serious or significant harm in the reasonably foreseeable future for reasons relating to the departure of Ratu Mara from Fiji in 2011, the questioning of his father in relation to this matter, or his father’s death in 2011.

10. The Tribunal considered the Applicant’s claimed activities with Lau Provincial Council.  It noted that he claimed that he had participated in meetings of the Council and that in or around September or October 2013 he had put forward a motion to the Council critical of the Bainimarama regime.  He claimed that the Provincial Council took motions to the Council of Chiefs which brought matters to the attention of the government.  He claimed to fear harm from the government on the basis of his role in suggesting this motion.  However the Tribunal had regard to the fact that the Applicant had appeared somewhat confused when questioned about the timing of this claimed action in light of independent information which indicated that the Council of Chiefs was disbanded in March 2012.  The Tribunal observed that the Applicant then changed his evidence to say he may have put forward this motion in 2012.  However his wife had indicated that her husband had attended only one meeting of the Provincial Council, three months prior to their departure from Fiji in 2013.  The Tribunal also had regard to the fact that when this inconsistency was discussed with the Applicant at the second hearing, he claimed that despite the fact that the Council of Chiefs was disbanded in 2012, meetings continued in 2013 and maintained that he had voiced his opinion at a meeting because he was feeling the loss of his father and was angry with the regime.

11. The Tribunal expressed some concern about accepting the Applicant’s claim that he was personally responsible for putting forward a motion critical of the regime that was taken up by the Provincial Council and forwarded to the Great Council of Chiefs, given the independent information that the Great Council was disbanded in March 2012.  It also had concerns accepting that the Applicant would be at risk of harm for voicing his anti-regime views at this forum, given independent information that the Lau Provincial Council was already well-known to have anti-regime views.  The Tribunal concluded that even if it were to accept that the Applicant may have been among those who voiced opinions in this forum, it did not accept on the evidence before it that his actions relating to any of the motions submitted by the Council identified him personally or put him at risk of serious or significant harm in the reasonably foreseeable future.

12. The Tribunal then turned to consider the Applicant’s claims arising out of his activities in Australia.  It recorded that the Applicant claimed to it that he had been attending regular meetings of the SDL (now SODELPA) party in Griffith; that he was close friends with the President of SODELPA in Griffith; that he participated in a protest rally in Sydney when Mr Bainimarama came to campaign before the 2014 Fijian election; that at that rally he and his wife were photographed with prominent members of FDFM and SODELPA, including the former national president of FDFM and the President of SODELPA Griffith; and that he was also photographed with anti-regime banners.  The Tribunal acknowledged that copies of photographs had been provided in support of this claim and that the Applicant believed that these photographs may have been disseminated on social media sites and/or shown on television.  It also had regard to his wife’s oral evidence that she had posted information about her support of SODELPA on her Facebook page and that her image was also included in the photographs taken at the protest rally with influential members of the party and FDFM.

13. The Tribunal had regard to the fact that in his original application, at interview with the Department and in his detailed statutory declaration of 28 July 2014, the Applicant had indicated that he had not been involved in Fijian political activities since coming to Australia, whereas at the hearing before the Tribunal he had given evidence that he had been attending SDL meetings in Griffith Australia from two months after his arrival in Australia in December 2013.  It described his claims that he was an ordinary member of the party and that although he was not present in Griffith during the visit by Qarase in 2014, he had participated in the protest rally in Sydney when Frank Bainimarama came to campaign prior to the elections and was photographed with prominent members of pro-democracy and Fijian political organisations in Australia. 

14. The Tribunal stated that it had considered the Applicant’s evidence and claims “holistically” and had taken into account the submissions of his representative as to the motivations of the Applicants in their political activities in Australia. Despite inconsistencies in the Applicant’s evidence about the timing of his involvement with SODELPA in Australia, the Tribunal accepted that he and his wife had become involved with the party since their arrival and that they had participated in meetings and had attended the protest rally as claimed. Given the family’s long-term involvement with SDL and Lau Provincial Council and the small and close-knit nature of the Griffith Fijian community, it was prepared to accept that the Applicants’ involvement with SODELPA and Fiji pro-democracy actions was consistent with their past affiliations and background and that they had not participated in such activities solely to strengthen their refugee claims. Therefore the Tribunal did not disregard the Applicants’ conduct in Australia pursuant to then applicable s.91R(3) of the Migration Act 1958 (Cth) (the Act).

15. The Tribunal continued at paragraphs 149 to 150:

    149.  The Tribunal has considered the nature of the first and second named applicants’ involvement with SODELPA and their participation in the 2014 protest rally.  He told the Tribunal he attends meetings of SODELPA as an ordinary member.  He gave a very general explanation of the mission and goals of the party and displayed very basic knowledge of its history, background and policies.  On the evidence before it, the Tribunal accepts the first named applicant became a member of SODELPA and has attended meetings and rallies to support this and other pro democracy organisations here.  However, it is not satisfied that he has a significant or vocal profile as a result of his involvement in these organisations since his arrival in Australia.

    150.  It has considered his claims and evidence that he attended and was photographed at the 2014 rally to protest against Bainimarama, and accepts that he was present and was photographed alongside other members of the community including Suliasi Daunitutu and Moapetamo Siganisucuvinaka, among others.  The Tribunal accepts on the evidence submitted by the applicant’s representative that some of the individuals pictured with him are prominent members of the Fijian community who are well documented as outspoken advocates of democracy and critics of the Bainimarama government.  While it accepts that the applicant was photographed with a banner showing a political message critical of the regime and that he may have personal opinions opposing the current government, the Tribunal is not satisfied that this of itself gives him a profile that would place him at risk of serious or significant harm.  In reaching this conclusion the Tribunal has taken into consideration information contained in DFAT’s Country Report which indicates the environment for public expression of political opinion has improved since the 2014 election; that criticism of public policies is permitted and occurs.  It has also taken into consideration the qualification expressed in DFAT’s report, that some uncertainty remains of the permissible limits on public commentary and its observation that most commentators remain circumspect in any public criticism of the Prime Minister or Attorney General.  DFAT’s assessment is that it is high profile public figures and leaders of organisations who might be seen to challenge the government’s authority or undermine its legitimacy who are at risk, and that the risk is of monitoring and harassment by the military and harassment through the court system.  The Tribunal does not accept the applicant’s attendance and being photographed at one rally in Australia, membership of SODELPA and attendance at some meetings in Griffith have given him a profile that would attract the interest of the authorities.  In any event, the Tribunal also does not consider that monitoring and surveillance of itself would come within the meaning of serious harm for the purposes of s91R(1)(b).  For these reasons the Tribunal is not satisfied the applicant will face a real chance of serious or significant harm on the basis of his activities in Australia.

1. The Tribunal concluded that, having considered the Applicant’s claims individually and cumulatively, it was not satisfied that there was a real chance he would face persecution because of any one or more of his claims of past political affiliation with SDL in Fiji; past experiences of mistreatment as a result of a mistaken association with Speight supporters in 2000; the scuffle with a soldier in 2012; his father’s, or any family, association with Ratu Mara; his participation in the Lau Provincial Council; his SODELPA membership or pro-democracy activities in Australia; or for any other reason.

2. The Tribunal also considered whether the Applicant’s wife or the other Applicants would face persecution because of their political opinion or for any other reason.  In particular, it considered the Second Applicant’s claims that she had posted material on her Facebook account indicating her support for SODELPA and that she was included in photographs taken at the protest rally.  It had regard to the fact there was no other evidence of political activities by the Second Applicant in Fiji or Australia.  On the evidence before it, the Tribunal did not consider that the Second Applicant had a profile that would place her at risk of serious or significant harm.  Taking into account DFAT and other reports it had referred to, the Tribunal was not satisfied that the Second Applicant would face a real chance of serious or significant harm on the basis of her political opinion as expressed by her activities in Australia or for any other reason.

3. The Tribunal considered the Second Applicant’s evidence that she was also fearful for her children because they had told her that they did not like Bainimarama and that she feared what would happen to them if they spoke out against him.  It had regard to the absence of any other evidence relating to the activities or opinions of any of the other Applicants.  Taking into account independent information before it about the post-2014 election climate in Fiji, the Tribunal was not satisfied on the evidence before it that any of the other Applicants would face a real chance of serious or significant harm in the foreseeable future for reason of their political opinion or for any other reason.

4. Having regard to the evidence and claims before it and its findings, the Tribunal was not satisfied that any of the Applicants met the complementary protection criterion.  It was also not satisfied that any of the Applicants met the family unit criteria. 

5. The Tribunal affirmed the decision not to grant the Applicants protection visas.

6. The Applicants sought review of the Tribunal decision by application filed in the court on 26 February 2016.  They now rely on an amended application filed on 23 November 2016.

Ground 1

1. The amended application contains four grounds. Ground 1 originally contained two separate paragraphs, but in submissions counsel for the Applicant indicated that paragraph 2 (which referred to s.424A of the Act) was not pressed. Paragraph 1 in ground 1, which refers to s.425 of the Act, is as follows:

   The second respondent (the “Tribunal”) denied the applicant a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act (1958) (Cth) (the “Act”), by failing to alert the applicant of the significance it placed on information it relied on in dismissing the applicant’s claims.

2. The Applicant submitted that in addition to inviting him to a hearing, the Tribunal was required to raise with him issues in relation to the decision under review.  It was pointed out that in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] Goldberg J had observed that the requisite statutory invitation “must not be a hollow shell or an empty gesture” and that the statutory requirement to provide a hearing would not be met if an applicant was “not able through the conduct of the Tribunal to give evidence or present arguments”.  Reference was also made to the remarks of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at 561, in relation to the need for a “real and meaningful” hearing.

3. It was pointed out that (as set out at [28] above) in considering the Applicant’s claims about his activities in Australia, the Tribunal had stated at paragraph 149:

   The Tribunal has considered the nature of the first and second named applicants’ involvement with SODELPA and their participation in the 2014 protest rally.  He told the Tribunal he attends meetings of SODELPA as an ordinary member.  He gave a very general explanation of the mission and goals of the party and displayed very basic knowledge of its history, background and policies…

4. Issue was taken with the fact that the Tribunal then found (at paragraph 149) that on the evidence before it, while it accepted that the Applicant became a member of SODELPA and had attended meetings and rallies to support this and other pro-democracy organisations in Australia, it was not satisfied that he had a significant or vocal profile as a result of his involvement in these organisations since his arrival in Australia.

5. It was submitted that at no stage during either Tribunal hearing were questions asked of the Applicant to articulate the “mission” or the “goals” of SODELPA; that he had responded as best as he could to the questions that were asked; and that had he been asked about the mission and goals of SODELPA he could have given evidence and/or presented arguments in that respect. 

6. It was submitted that the Tribunal had reached the conclusion in relation to the Applicant’s profile at paragraph 149 on the basis of findings which included a finding about his knowledge in relation to SODELPA, but had not put him on notice that such knowledge was a live issue. The Applicants also contended that for the Tribunal to incorporate into its findings and reasons a factual finding in paragraph 149 of its reasons that was said not to be supported by evidence was procedurally unfair to the Applicant, contrary to s.425 and constituted a jurisdictional error.

7. The Applicants referred to the remarks of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590 to 592 to the effect that it is a fundamental principle that where rules of procedural fairness apply to a decision-making process the party liable to be directly affected by the decision is to be given the opportunity to be heard and that this would ordinarily require the party affected “to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”.

8. It was acknowledged that the Act defined the nature of the opportunity to be heard that was to be given to an applicant by the Tribunal, in particular by virtue of the obligation under s.425 of the Act to invite the applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. However the Applicants pointed out that the concept of the “issues arising in relation to the decision under review” had been considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and that it had been observed by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [35] that:

   The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”… 

9. The Applicants contended that the delegate had not based his decision on the basis of the Applicant’s so-called “very basic knowledge” of SODELPA’s mission, goals or history and that nothing in the delegate’s reasons indicated that these matters were in issue.  In SZBEL at [47] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ had indicated that where there were specific aspects of an applicant’s account that may be important to the decision and that may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and to explain why the account should be accepted. The Applicants contended that at the hearings the Tribunal had not identified these aspects of the Applicant’s account of SODELPA as being important issues and had not challenged what he said or said anything to him that would have revealed to him that the “issues” referred to in its reasons in relation to his knowledge of SODELPA were live issues.  It was submitted that in this case the Applicant was not put on notice by it that his account of certain things would be taken into consideration or would undermine his claimed involvement in a group or organisation.

10. The First Respondent acknowledged that the Applicant’s degree of involvement with SODELPA was an issue for the Tribunal and that his knowledge of the party was relevant to that issue.  Counsel for the First Respondent contended, however, that it was apparent that at the Tribunal hearings the Applicant had been given every opportunity to say whatever he wished about his knowledge of or involvement with SODELPA, including the relationship between SODELPA and SDL and their policies.  It was submitted that the transcripts of the Tribunal hearings indicated that the Applicant was asked numerous questions about the party, including what it stood for and what its policies were, and that this was a more than sufficient opportunity for the Applicant to tell the Tribunal about his knowledge of SODELPA, including its mission and goals. 

11. The First Respondent also submitted that it was not necessary for the Tribunal to specifically use the words “mission” and “goals” in a question at the hearing simply because that was ultimately how it phrased its reasons.

12. There was also said to be no obligation on the Tribunal to try to elicit further information when the Applicant had been given the opportunity at two hearings to say what he wished about the policies and goals of the party.  Insofar as it was suggested that the Applicant did wish to say more, it was pointed out that there was no evidence to that effect before the court and that, in any event, even if that was the case, the Applicant had been given the opportunity to do so.  It was also submitted that it was for an applicant to provide whatever evidence he or she wished to provide in support of his or her claims (see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ).

13. On this basis it was contended that there was no failure by the Tribunal to comply with s.425 of the Act or other jurisdictional error in the manner contended for in ground 1 in the amended application.

Consideration

1. The difficulty that faces the Applicants in relation to this ground is that when regard is had to the transcripts of the two Tribunal hearings it is apparent that the Applicant was not only given ample opportunity to describe his political activities in Australia and his involvement with SODELPA, but was also asked questions about his knowledge of the party, including matters relevant to its mission and goals, history, background and policies in a manner which clearly put him on notice that these matters were relevant or dispositive issues in the sense considered in SZBEL.

2. In the first Tribunal hearing, after the Applicant claimed that he feared harm in Fiji because while in Australia he had become involved in the SDL and the “Fiji Democracy Movement” (transcript 1, page 16, lines 13 to 14), the Tribunal suggested that they talk about what he had done in Australia and referred to the fact that he had mentioned both the SDL and the FDFM.  Part of this discussion was referred to by the Applicant in support of this ground, but it is relevant to have regard to the range of matters raised.  The following exchange occurred (transcript 1, pages 16 to 19):

   TRIBUNAL:   So what have you been doing with the SDL?

   INTERPRETER:   Attending meetings for fundraising (indistinct).

   TRIBUNAL:   And what did you do, you yourself?

   INTERPRETER:   Whatever he is told to do and he provided refreshment where the meeting was held.

   TRIBUNAL:   I’m sorry, what was the last part?

   INTERPRETER:   He would bring the refreshment to where the meeting is held.

   TRIBUNAL:   Is there anything else that you do with the SDL?

   INTERPRETER:   Just being there and attending the meetings and (indistinct).

   TRIBUNAL:   How often do the meetings take place?

   INTERPRETER:   Before the elections in Fiji maybe sometimes weekly, yeah, fortnightly, sometimes monthly.

   TRIBUNAL:   And when did you start attending – when did you start going to the SDL meetings?

   INTERPRETER:   Not long after (indistinct)

   TRIBUNAL:   Not long after.

   INTERPRETER:   Yeah.

   TRIBUNAL:   Why did you go to the SDL meetings?

   INTERPRETER:   Because of my involvement in Fiji with SDL.  So when I arrived (indistinct) there is an SDL group in Griffith, so we decided to continue our support to Fiji with SDL.  I just really supported them because I was – my father believed in them.  The Australian Government (indistinct) they were strongly against them.

   TRIBUNAL:   So have you joined the SDL now?

   APPLICANT:   Yes.

   TRIBUNAL:   Do you have like a receipt for your membership or any documents to show that you've joined?

   INTERPRETER:   He says it’s at home.

   APPLICANT:   Yeah.

   TRIBUNAL:   It's just that when you – you said in Fiji you weren't a member, you were just a supporter.

   APPLICANT:   Yeah just like following up dad’s (indistinct) that’s why, yeah.

   TRIBUNAL:   But in Australia you say you have joined.

   APPLICANT:   Yeah, true.

   TRIBUNAL:   Why did you join in Australia but not in Fiji?

   INTERPRETER:   In Fiji because it’s – my father was – his father was a member of SDL so he was just following his father’s footstep.

   TRIBUNAL:   So it’s not called the SDL any more, though.

   INTERPRETER:   Yes.  That’s true.

   TRIBUNAL:   Do you know why it had to change its name?

   INTERPRETER:   I’m still asking the (indistinct) the reason why but its name was changed and they told him because they want to change the party into (indistinct) and it would be (indistinct) yeah.

   TRIBUNAL:   What does SODELPA stand for?  What do they want?  What is their political agenda?  What are they looking for?

   INTERPRETER:   He says they want to restore the previous (indistinct) right of the Fijians (indistinct).

   TRIBUNAL:   And what is the name of the leader of SODELPA in Fiji?

   INTERPRETER:   The leader today is a lady, Teimumu.

   APPLICANT:   Called Teimumu Kepa.

   TRIBUNAL:   Do you know her name?

   APPLICANT:   (foreign language) Teimumu Kepa.

   INTERPRETER:   Kepa.  Teimumu, T-e-i-m-u-m-u, and the surname K-e-p-a.

   TRIBUNAL:   Why are you worried about going back to Fiji as a SODELPA supporter?

   INTERPRETER:   I’m still afraid of (indistinct) protest that they have been (indistinct). During the protests there, there were very bad (indistinct) That’s why I (indistinct).

   TRIBUNAL:   Who organised that protest?

   INTERPRETER:   I came just because we were (indistinct) Fiji Democratic Party.

   TRIBUNAL:   Is the FDFM linked with SODELPA in Griffith?

   INTERPRETER:   Yes.  The Fiji Democratic Movement wants something to be done.  They always get in contact with SODELPA in Griffith to discuss what they want.

   TRIBUNAL:   Do they hold their meetings at the same time?

   INTERPRETER:   One time they came down to Canberra, you know (indistinct).

   TRIBUNAL:   So are there FDFM meetings in Griffith also that are separate from SODELPA meetings?

   INTERPRETER:   Yes (indistinct).

   TRIBUNAL:   So there hasn’t been an FDFM meeting in Griffith.  Is that right?

   INTERPRETER:   As far as I know, no. But at times we send reports of what we are doing to the Fiji Democratic Movement (indistinct) SODELPA (indistinct).

   TRIBUNAL:   So did you join the FDFM?

   INTERPRETER:   (indistinct) be a member.

   TRIBUNAL:   When did you do that?

   INTERPRETER:   Well, since they started having meetings up in Griffith.

   APPLICANT:   And I was told by our SDL leader from Griffith to be a member of both I have to give myself - - -

   TRIBUNAL:   Sorry.  I didn’t hear.

   APPLICANT:   Yes.  Sorry, ma’am.  I - - -

   TRIBUNAL:   Could you speak up a little, please?  Because we are also being recorded.  It’s important.

   APPLICANT:   As soon as I joined SDL from Griffith I was told by our leader to give myself for Fiji Democratic and SDL and that was when I done this.

   (emphasis added)

3. In this exchange, in particular in the highlighted passage, the first Tribunal member raised issues relevant to the Tribunal review which were subsequently addressed in paragraph 149 of the Tribunal’s reasons. 

4. In addition, at the first hearing (transcript 1, page 20, lines 8 to 9) the Tribunal discussed with the Applicant his membership of the FDFM, which he claimed he had joined so that “he’d strengthen their (indistinct) then the government (indistinct) it strengthened the opposition to it”.  The Applicant claimed that they were told to join the Fiji Democratic Party to expand the different parties’ opposition to the Fiji government.  He explained that he had attended a SODELPA and FDFM meeting once before he applied for protection, but that he had not paid to join SDL at that first meeting.  When asked if he joined SODELPA and FDFM in Australia so that he could strengthen his claims for protection, the Applicant claimed he joined because he really hated the military government (transcript 1, page 21).  The Applicant also told the first Tribunal that he took part in the August 2014 rally (at which he was photographed) because the SDL told him to go and because of what had happened to him and to his father in the past.

5. The Tribunal put to the Applicant (transcript 1, pages 23 to 24) some country information and raised with him the absence of country information to suggest that ordinary members of opposition political parties or groups such as the FDFM were of any interest to the authorities in Fiji now or to suggest that anyone who had gone back to Fiji after the 2014 protest had suffered any mistreatment.  Had the Applicant wished to assert that he was more than an “ordinary” member, or had a higher profile, he had the opportunity to do so.  However, the transcript recorded the response as follows:

   INTERPRETER:   He said, like he said before, that maybe (indistinct) what is happening now and denied what you’re talking about (indistinct) in Fiji.

   (transcript 1, page 24, lines 9 to 10)

6. Later in the first Tribunal hearing the Tribunal also put to the Second Applicant country information from DFAT about the situation in Fiji which was said to indicate that people with a high profile of opposition to the Fijian military government may have faced trouble in Fiji, but again observed that there was not much information to suggest that people who were members of SODELPA or involved at a low level in protests or with FDFM really had much of a chance of being harmed if they returned to Fiji (transcript 1, page 52, lines 5 to 13).  In response the Second Applicant suggested that Mr Bainimarama could do anything to them if they opposed him whether or not they had a high profile.

7. Importantly, at the end of the first hearing the Tribunal gave both the Applicants the opportunity to say anything else they wished to say.  Had they wished to provide further information about their knowledge of or involvement with SODELPA or to raise any other matters relevant to their claims in light of the matters raised by the Tribunal, they had the opportunity to do so.  Neither Applicant took up that opportunity.

8. After the Tribunal was reconstituted, the new Tribunal member conducted another hearing on 7 September 2015.  At the start of the second hearing the Tribunal pointed out that the purpose of the hearing was for the Applicants to tell the Tribunal anything further that they would like to tell it before a decision was made and also that the Tribunal would like to talk to them about some of the issues that had arisen from what it had looked at so far and so they may cover some of the material that was discussed at the previous hearing.  In addition, the Tribunal indicated, “To the extent that we’re not covering that material again, if there’s anything further you want to say about anything that you mentioned before, you’re welcome to do that and I encourage you to say that.  But in making my decision I may rely on material that you’ve given earlier at the earlier hearing as well” (transcript 2, page 2, line 42 to page 3, line 4).

1. This informed the Applicants of the relevance of their earlier evidence and also gave them a further opportunity to expand on what they had said.

2. In the course of a discussion of events in Fiji, the Tribunal asked if anyone in the Applicant’s family was a member of the SDL party.  The Applicant replied that his father was, that he did not know when he had joined and that his father had not encouraged him to join the party, but rather to do the driving work (transcript 2, page 24).

3. After further discussion of incidents in Fiji, the Tribunal raised the issue of the Applicant’s activities after he arrived in Australia.  It acknowledged that his involvement with the SDL party in Australia had been talked about at the previous hearing and that he had said he was attending meetings here (transcript 2, page 31).  The Applicant agreed, and stated that about two months after he arrived in Australia he had started attending the meetings because there was a close Fijian community in Griffith and they could easily hold meetings (transcript 2, page 3, lines 37 to 39). 

4. Relevantly, when asked what the meetings were and what the organisation was (transcript 2, page 32), the Applicant stated only that he attended meetings of the “Democratic Movement”, SODELPA meetings, church meetings and also Fijian community meetings.  When the Applicant was asked whether when he said the “Democratic Movement”, he meant FDFM, he agreed and then said that members from Canberra also attended.  He explained that former Prime Minister Qarase had attended some SDL meetings and was said to support the group.  He claimed that the branch of the SDL in Griffith met once, sometimes twice, a month.  When asked what they were doing and what they did at the meeting (transcript 2, page 33) the Applicant claimed that they talked about the situation in Fiji and how they could help the SDL party members in Fiji, particularly with financial help.  He claimed he was at the meetings as a member and a strong supporter of the party and that he attended other meetings with the Democratic Party and also Fijian community meetings whenever he was available to do so (transcript 2, page 33).  He claimed the Democratic Party was a part of the SDL.  The Tribunal then put to him (transcript 2, page 34, lines 11 to 29):

   In your statutory declaration that you gave to the tribunal that’s dated 28 July 2014 you said that since you came to Australia you haven't been involved with the Fiji Democracy and Freedom Movement yet. So you have started with the SDL Party here, whereas you’re saying to me that two months after you came to Australia you were attending numerous meetings, including of the SDL party and the Democratic Party, which you say is the same group of people. While I can understand that within the community there may be people that are involved in a number of different organisations, the issue that arises for me about your involvement in these groups since coming to Australia is that there’s a provision in the Migration Act that says that conduct that’s engaged in Australia must be disregarded unless you’re able to satisfy me that you engaged in this conduct not only for the purpose of making a stronger refugee claim.

   So it may be that given that you were not involved in the party other than just driving people to meetings in Fiji, and that was at the request of your father, I may have some doubts as to whether you’re involved in groups here only for the purposes of making a stronger refugee claim.  Is there anything you wanted to put to me about that.

5. As pointed out in submissions for the Applicant, he replied at transcript 2, page 34, lines 31 to 34:

   Since arriving in Australia, I was invited to go to the SODELPA meetings and I attended the meetings not to strengthen my claim or my application but that I support what the party stands for and also to support the party members who are in Fiji.

6. As discussed above, the Tribunal accepted that the Applicant had not participated in such activities solely to strengthen his refugee claims.  However, as pointed out by the First Respondent, in the following exchange the Tribunal member specifically asked the Applicant whether he could tell it what he believed the SODELPA party stood for (which clearly raised issues as to its mission, goals and policies) (transcript 2, page 34).  He provided what could be seen as a general answer, suggesting that it stood for the rights of each individual and for freedom of speech.  When asked about the relationship between SODELPA and SDL, the Applicant stated that it was the same party under a different name.  However he did not remember when SODELPA was formed (an aspect of its history) and while he said that SDL was formed when Qarase stood for election, he could not remember when that had occurred (transcript 2, page 35).  He provided a limited response when asked about SODELPA’s policies.  This exchange was as follows:

   TRIBUNAL:  Can you tell me what you believe the party stands for.

   INTERPRETER:   It stands for the rights of each individual and also for freedom of speech. But as it is happening now, there is only one person that rules.

   TRIBUNAL:   What’s the relationship between SODELPA and SDL?

   INTERPRETER:   The SODELPA and SDL is one and the same party but SODELPA is the English name for the - - -

   APPLICANT:   (foreign language) SODELPA means Social Democratic Party.

   INTERPRETER:   The SDL is the Fijian name for it, the abbreviated name.  The SODELPA is what the party is called in English.

   TRIBUNAL:   Do you know when it was formed as SODELPA?  When it was…

   INTERPRETER:   I don't remember when SODELPA formed.

   TRIBUNAL:   What about SDL?

   INTERPRETER:   It was when Qarase was – yeah, when he stood for election.

   TRIBUNAL:   When was that?

   INTERPRETER:   I can't remember.

   TRIBUNAL:   Since coming to Australia and becoming involved with the party, have you looked for more information about this party that you are now getting more involved with?  For example, do you know what their policies are?

   INTERPRETER:   Yeah.  I know that one of the main things the party stands for is the individual rights to be returned to the citizens of Fiji and also protection of land rights.

   (transcript 2, page 34, line 36 to page 35, line 28)

7. Contrary to the Applicant’s contention, this discussion alerted him to the need to give evidence about the mission and goals of SODELPA.  In particular, as the First Respondent submitted, the Tribunal specifically asked if the Applicant knew what SODELPA’s policies were.  The Applicant’s evidence, including his response of “Yeah.  I know that one of the main things the party stands for is the individual rights to be returned to the citizens of Fiji and also protection of land rights” is not inconsistent with the Tribunal’s view that the Applicant gave a general explanation of the party’s mission and goals and displayed a very basic knowledge of its history, background and policies.

8. After this exchange and a discussion of the protest rally attended by the Applicant, the Tribunal asked him if he understood or knew what the difference was between SODELPA and FDFM.  His response was “What I know is that SODELPA comes under the FDFM”.  When asked if he understood the role or purpose of the FDFM (transcript 2, pages 36 to 37) he replied that: “FDFM, what I know is it’s fighting for individual rights of the indigenous Fijians; passing this information down to SODELPA” (transcript 2, page 37, lines 3 to 4).  Again, such responses are not inconsistent with the Tribunal’s view of the Applicant’s evidence.  Moreover he was clearly put on notice of the relevance of his knowledge of SODELPA by these questions.

9. Further, relevant to the question of whether the Tribunal raised dispositive issues with the Applicant, at page 38 of the transcript of the second Tribunal hearing, the Tribunal put to the Applicant country information suggesting that while there was some concern for high profile members of the opposition or opposition groups, for ordinary Fijian society and people who did not agree with the government in power, the room to express such opinions was now much more open. Importantly the Tribunal continued at transcript 2, page 38, lines 9 to 21:

   The other issue that I put to you is that from all of what you have said or what appears before me, I may take the view that your involvement in the political organisations has been at quite a low level.  While I acknowledge your claim that your having been photographed with some of the leaders that are well-known and quite vocal in their opposition – well, as I understand your claim is that that imputes a more active role or a more opinionated position than you may have, and that for that reason you’re more at risk, I may find that given that you haven't been yourself as vocal as some of these individuals have been, that even though you’ve been photographed, these were events were (sic) many, many people attended and given the relatively small community of Fijians here in Australia, some of those individuals who you’re next to do know many other people.  So that I may find that that association won’t necessarily place you at any further risk – any great risk, I should say…

   (emphasis added)

10. This clearly put the Applicant on notice of the significance of his evidence about SODELPA.  He was then given the opportunity to respond to these issues which were relevant to the Tribunal’s finding in relation to whether he had a profile that would attract the interest of the Fijian authorities. 

11. Towards the end of the second hearing, the Tribunal also gave the Applicant’s representative an opportunity to make submissions in support of the claims.  The representative suggested that the Applicant had become involved in attending SODELPA meetings and the FDFM because he was a longstanding very close friend of the president of SODELPA.  However, the Applicant’s representative acknowledged some limits in the Applicant’s evidence (transcript 2, page 61) in suggesting that the delineation between SDL and SODELPA may not have come across “properly” in the Applicant’s evidence.  The representative then suggested that the Tribunal would be aware that the SDL had changed its name to SODELPA and the reason was that using the Fijian name was outlawed. 

12. The representative also acknowledged that when the Applicant was talking about SODELPA and also referred to the Democratic Party, it may not have been clear that he was talking about the FDFM.  It was also pointed out that SODELPA stood for Socialist Democratic Liberal Party.  The representative suggested that her understanding of what the Applicant had been saying in the hearing was that he was calling SODELPA the Democratic Party and differentiating it from what he had called the SDL.  While what is in issue for the purposes of this ground is not the knowledge of the representative about SODELPA, but the knowledge and explanation provided by the Applicant himself, this exchange reveals that the Applicants’ agent was on notice of the relevance of the Applicant’s knowledge of SODELPA and is also not inconsistent with the Tribunal’s findings in that respect.

13. Having regard to the conduct of both the Tribunal hearings and the issues raised by the Tribunal, it is clear that the Applicant was asked numerous questions in connection with his claims to be involved with SODELPA and other pro-Fijian democracy organisations in Australia, including questions which, while not using the precise terms adopted in paragraph 149 of the Tribunal decision, clearly raised with him his knowledge of the mission and goals of the party, its history and background.  The Tribunal specifically raised with him the policies of SODELPA.  The significance of this evidence and the evidence about the extent and nature of the Applicant’s involvement in SODELPA was made clear by the Tribunal in raising the possibility that on all his evidence it may take the view that the Applicant’s involvement had been at quite a low level and that he did not have a vocal profile.

14. Contrary to the Applicant’s contention, it was reasonably open to the Tribunal on this evidence to find that the Applicant’s responses indicated a very general explanation of the mission and goals of the party and displayed very basic knowledge of its history, background and policies. 

15. It has not been established that the Tribunal denied the Applicant a fair hearing under s.425 of the Act or a meaningful opportunity to participate in the hearing by failing to raise dispositive issues with him.

16. Insofar as ground 1 involves a contention that the Tribunal failed to alert the Applicant to the significance it placed on information it relied on in dismissing his claims, the Tribunal is under no obligation to put its provisional reasoning to an applicant.  As pointed out in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] by reference to the remarks in Alphaone at 591-592:

    Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

17. In fact, the Tribunal did raise with the Applicant its concerns in relation to whether ordinary members of opposition parties or opponents of the Fijian regime were at risk of harm and put country information in that respect to him.  The Tribunal also specifically raised the fact that it may take the view on the Applicant’s evidence that his involvement in the political organisations had been at quite a low level and that he had not been as vocal as some other people, particularly leaders with whom he was photographed, and also that this association would not necessarily place him at any greater risk.  It met its obligation to raise dispositive issues with the Applicant. 

18. The Applicant was given an opportunity to respond to these concerns relevant to the Tribunal’s lack of satisfaction that he had a significant or vocal profile as a result of his involvement in SODELPA and other pro-democracy organisations in Australia since his arrival. 

19. Ground 1 is not made out.

Ground 2

1. Ground 2 in the amended application is as follows:

   The Tribunal failed to consider the applicant’s claim in relation to his involvement with Lau Provincial Council and in particular the fear that he had since he left Fiji.  A failure to consider a claim would constitute jurisdictional error.

   Particulars

   a.  The Tribunal expressed it had some concerns about accepting the applicant’s claim that he was personally responsible for putting forward a motion critical of the regime which was taken up at the Lau Provincial Council and forwarded to the Great Council of Chiefs (D[144]).

   b.  The Tribunal relied on country information, the timing of the meeting and the disbanding of the Great Council of Chiefs rather than looking at the actual claim put forward by the applicant as to why his statements would place him in danger in Fiji upon his return.

   c.  The Tribunal’s failure to consider the significant aspects of the applicant’s claim (stated above) cumulatively with his other claims as a person who not only voiced a dissenting view against Mr Bainimarama at the Lau Provincial Council meeting, but also one who took part in a protest rally against Mr Bainimarama in Sydney placed him at risk of serious or significant harm in the reasonably foreseeable future constitutes jurisdictional error.

2. In submissions it was contended that the Applicant’s claims in relation to his activities in the Lau Provincial Council had been misunderstood by the Tribunal and therefore were not considered or not considered fully and also that the Tribunal failed to consider the Applicant’s claims cumulatively.

3. The solicitor for the Applicants submitted that the Applicant had not claimed that when he went to the Lau Provincial Council meeting he had just “casually” said to the representative to simply tell the meeting that “we don't like the military”, but that the Tribunal had understood the Applicant’s claim to have been of this nature.  It was (incorrectly) claimed that the Applicant had made quite a direct representation as a member of the Lau Provincial Council.  It was claimed in written submissions that in his statutory declaration of 28 July 2014 the Applicant had stated:

   We have delegates and I asked him if I can present my opinion to take it into the provincial meeting that the army should be taken away because they have taken so many innocent lives and things like that.  And one of my opinion was that Bainimarama should be jailed because he has harmed so many innocent lives.  The soldiers say that they are just following orders.

   (emphasis added)

4. As discussed below, the reference to “I” is incorrect.  In the Applicants’ statutory declaration the word used was “he”.

5. This was said to amount to a very specific statement by the Applicant that his opinion was that Bainimarama should be taken to prison and that this was communicated to the Lau Provincial Council delegate.  It was pointed out that the Applicant had also claimed that the delegate at the Provincial Council had presented his suggestion and in the meeting had said that it was the Applicant’s suggestion.

6. The solicitor for the Applicants also referred to the fact that the Applicant told the second Tribunal (transcript 2, page 28, lines 10 to 18) that after he left Fiji he thought that whatever he had put to the Lau Provincial Council meeting would have gone up to the authorities and that they could be looking to target him personally.  He agreed that this was a fear he had had since he left Fiji.

7. In its findings and reasons, after expressing some concern about aspects of this claim, the Tribunal stated at paragraph 144:

   …Even if the Tribunal were to accept that the applicant may have been among those who voiced opinions in this forum, it does not accept on the evidence before it, that his actions relating to any motions submitted by the Council identified him personally or put him at risk of serious or significant harm in the reasonably foreseeable future.

8. The Applicant contended that rather than looking at his particular claim about the Lau Provincial Council, the Tribunal had simply relied on its general view that inhabitants of the eastern islands of Fiji, particularly the Lau group of islands, had engaged in activities or expressed views against the interim government. 

9. It was also submitted that the Tribunal had failed to look at this claim “cumulatively” with the fact that the Applicant had appeared at the rally against Bainimarama in Sydney alongside well-known anti-regime proponents.  The Applicants contended that the Tribunal should have considered that there was a nexus between the Applicant’s activities during and in relation to the Lau Provincial Council meeting and the fact that he was said to have been identified by Bainimarama’s brother and personal guards during the protest in Sydney where photographs were taken of the protestors.  This contention was put on the basis that the Applicant had not only stated that it was after he left Fiji that he had thought that his opinion put forward in the Lau Provincial Council meeting would have gone up to the authorities and that they could be looking to target him personally, but had also made claims about being identified at the 2014 protest rally. 

10. The Applicants confirmed that the essence of this ground was a contention that the Tribunal had failed to consider the Lau Provincial Council claim cumulatively with the Applicant’s other claims, in particular that he was a person who had not only voiced a dissenting view against Mr Bainimarama at the Lau Provincial Council meeting, but who had also taken part in the Sydney protest rally against Mr Bainimarama.

1. It was submitted that the Tribunal had failed to consider all of the Applicant’s claims in the sense considered by the Full Court of the Federal Court in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 259 [42]. In oral submissions reference was also made to the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 in support of the proposition that the Tribunal had failed to consider a claim and that this amounted to a constructive failure to exercise jurisdiction.

2. The First Respondent pointed out that the Tribunal had expressly considered the Lau Provincial Council claim and had also stated that it considered the Applicant’s claims cumulatively and submitted that there was no basis for a contention that it had not done so.

Consideration 

1. First, to the extent that this ground involves a contention that the Tribunal misunderstood and hence failed to consider the Applicant’s claim in his statutory declaration of 28 July 2014 in relation to his involvement with the Lau Provincial Council, it is relevant to have regard to what the Applicant did claim in his statutory declaration of 28 July 2014.  As mentioned above, in fact, the Applicant claimed:

   73.  We have delegates and I asked him if he can present my opinion to take it into the provincial meeting that the army should be taken away because they have taken so many innocent lives and things like that.  And one of my opinion was that Bainimarama should be jailed because he has harmed so many innocent lives.  The soldiers say that they are just following orders.

   74.  In September or October 2013 this happened.

   75.  I wanted the council to make a statement that they do not support the military government.

   76.  The representative presented my suggestion; in the meeting he says that.  And he said that it was my suggestion.

   (emphasis added)

2. Contrary to the contention in the Applicant’s written submissions, in his statutory declaration the Applicant did not assert that he had made a direct representation to the meeting of the Provincial Council.  Rather the Applicant claimed that he had asked a delegate to present his opinion.  It is also not clear from the declaration that the Applicant asked the delegate to put forward anything more than his opinion that the army should be taken away.

3. Indeed, in the second Tribunal hearing, after the Applicant confirmed that his claim was that he put forward a suggestion to the representative council (transcript 2, page 25), when asked exactly what he did in that context in that Council, he replied “I put forward my opinion to a representative to mention this to the provincial council meeting that we are not one with the government of the time” (emphasis added) (transcript 2, page 25, lines 15 to 17).  He acknowledged to the Tribunal that this was the view of his representative group.  He claimed he just wanted to “reinforce the opinion of the province and I was also hurting from what happened to my dad” (transcript 2, page 27, lines 18 to 19).  He did not claim that he also told the representative to put forward his opinion that Bainimarama should be jailed.  The Applicant also agreed that he was “speculating” that it was a possibility that information from the meeting about his role may have been disclosed to the authorities.  The Tribunal raised its concern that as the province was well-known to be anti-regime, his role (even if identified) was unlikely to have brought forward particular interest (transcript 2, page 27).

4. It is the case that at the second Tribunal hearing the Applicant’s agent suggested that the Applicant went to the Council meeting with a very specific suggestion that Bainimarama should be jailed and that this, in combination with his appearance in the photograph with prominent people at the 2014 rally, placed him at risk. 

5. The Applicant’s own claims about the Lau Provincial Council were not put in such clear terms but, in any event, the Tribunal understood that he claimed that he was personally responsible for putting forward a motion critical of the Bainimarama regime. 

6. The Tribunal considered this claim in paragraphs 142 to 144 of its reasons.  It did so in light of the manner in which the claim was presented, finding:

   142.  The applicant claims that he participated in meetings of the Lau Provincial Council and, in or around September or October 2013, he put forward a motion to the Council critical of the Bainimarama regime.  He claimed that the Provincial Council takes motions to the Council of Chiefs which bring the matters to the attention of the government and he fears harm from the government on the basis of his role in suggesting this motion.  When questioned by the Tribunal about the timing of his claimed action in suggesting the motion to the Provincial Council, given that independent information indicates the Council of Chiefs was disbanded in March 2012, the applicant appeared somewhat confused.  He changed his evidence to say he may have done this in 2012.  The second named applicant, in her evidence to the Tribunal, indicated that her husband attended only one meeting of the Lau Provincial Council, and that it was held some three months prior to their departure in 2013.

   143.  When the inconsistency in dates and adverse independent information was discussed with the applicant again at the second hearing, he reiterated that despite the Council of Chiefs being disbanded in 2012, meetings continued to be held in 2013.  He maintained that he voiced his opinion at this meeting because he was feeling the loss of his father and was angry with the regime.

   144.  The Tribunal has some concerns about accepting the applicant’s claims that he was personally responsible for putting forward a motion critical of the regime which was taken up by the Lau Provincial Council and forwarded to the Great Council of Chiefs, given the independent information that the Great Council was disbanded in March 2012.  It also has concerns accepting that the applicant would be at any risk of harm for voicing his anti regime views at this forum, given independent information, referred to above at paragraphs 120-123, the Provincial Council was already well known to have views against the regime.  Even if the Tribunal were to accept that the applicant may have been among those who voiced opinions in this forum, it does not accept on the evidence before it, that his actions relating to any motions submitted by the Council identified him personally or put him at risk of serious or significant harm in the reasonably foreseeable future.

7. In other words, despite its concerns about accepting that the Applicant was personally responsible for putting forward a motion critical of the regime which was taken up by the Council and forwarded to the Great Council of Chiefs, the Tribunal proceeded on the basis that the Applicant voiced opinions in that forum, but did not accept on the evidence before it that his actions in relation to any motions put forward by the Council identified him personally (that is, to the authorities) or put him at risk of serious or significant harm.  It did not simply have regard to the fact that inhabitants of the Lau islands had expressed anti-regime views.  

8. In this way the Tribunal considered the integer of the Applicant’s claims relating to the Lau Provincial Council, including his claimed fear (expressed at the second hearing), that whatever he had put to the Council meeting would have gone up to the authorities and that they could be looking to target him personally.

9. It was also contended that the Tribunal failed to consider the Applicant’s asserted nexus between this incident and events at the 2014 protest rally cumulatively.  However, this suggested nexus was recognised by the Tribunal.  In its reasons it referred to the fact that at the conclusion of the second Tribunal hearing the Applicant’s representative had argued that, in essence, there were two matters that caused the Applicant to face a risk of harm upon return to Fiji, being the Lau Provincial Council incident and the Applicant’s sur place claims, in particular his attendance at and being photographed at the 2014 rally, and that his other claims may cumulatively add to the risk he faced. 

10. Further, in considering the motivation for the Applicant’s conduct in Australia (in light of s.91R(3) of the Act), the Tribunal stated that it had considered the Applicant’s evidence and claims “holistically”.  It had regard to the Applicant’s activities in Fiji (including his long term family affiliation with Lau Provincial Council) in accepting that his involvement (and that of his wife) with SODELPA and Fijian pro-democracy actions in Australia was consistent with his past affiliations and background.  It accepted that the Applicants had not participated in these activities solely to strengthen their refugee claims and did not disregard them.

11. The Tribunal then made findings about the nature and consequences of the Applicants’ activities in Australia, before finding that it was not satisfied that the Applicant’s “attendance and being photographed at one rally in Australia, membership of SODELPA and attendance at some meetings in Griffith” had given him a profile that would attract the interest of the authorities.  Furthermore, it found, in the alternative, that it did not consider that “monitoring and surveillance of itself” would come within the meaning of serious harm for the purposes of the Act.  It is apparent that this was a reference to the risk to those with a profile of opposition to the Fijian government as referred to in the DFAT report discussed earlier in the Tribunal’s reasons.

12. Having made sequential findings about the various aspects of the Applicant’s claims, the Tribunal then stated that it had considered the claims individually and cumulatively.  It listed those claims as including the Applicant’s participation in the Lau Provincial Council, his SODELPA membership and his pro-democracy activities in Australia. This clearly encompassed the claimed consequences of those claims that the Tribunal accepted.  The Tribunal decision, read fairly and as a whole is consistent with this statement, which is to be seen in light of what the Tribunal accepted of the Applicant’s claims, including about the consequences of his participation in and suggestion of a motion to the Lau Provincial Council as discussed above.

13. It was open to the Tribunal to deal with each of the Applicant’s claims in such a sequence.  The fact that it did so does not in itself indicate that it failed to consider the claims as a whole (see Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [14]).

14. In other words, the Tribunal set out its understanding of the Applicant’s claims about the cumulative nature of the Lau Provincial Council and the 2014 rally claims.  It sequentially considered those and the other claims.  It indicated that it had considered the evidence and claims holistically and had taken into account submissions of the Applicants’ representative regarding the motivations of the Applicants in their political activities since arrival in Australia.  It accepted that the Applicant’s involvement was consistent with his past affiliation and background and that he was photographed at the August 2014 rally with prominent critics and also that he may have personal opinions opposing the current government (as he claimed, among other things, in the context of explaining his activities in relation to the Lau Provincial Council).  It then considered what it accepted of each of his claims cumulatively.  

15. Having regard to the Tribunal decision as a whole it has not been established that the Tribunal erred in failing to consider the Lau Provincial Council claim and the protest rally claim (or any other claims) cumulatively, or that it otherwise fell into jurisdictional error in the manner contended for in ground 2 of the amended application. 

16. Insofar as this ground disagrees with the Tribunal’s conclusion that it was not satisfied there was a real chance the Applicant would face persecution on the asserted bases, it seeks impermissible merits review. 

17. Ground 2 is not made out.

Ground 3

1. Ground 3 in the amended application is as follows:

   1.  The Tribunal made an erroneous adverse finding by relying on a miscomprehension of the evidence, and/or failing to consider the evidence (D[149-150]).  The Tribunal in doing so failed to consider the applicant’s activities in Australia as a result of his involvement with the SODELPA Chapter and the FDFM as having any significance.

   Particulars

   a.  The Tribunal stated that it was prepared to accept the applicant’s involvement with SODELPA and Fiji pro-democracy actions were consistent with their past affiliations and backgrounds and that they had not participated in these activities solely to strengthen their refugee claims.

   b.  According to the Tribunal, it was not required to disregard the applicants’ conduct in Australia pursuant to s.91R(3) of the Act.

   c.  The Tribunal failed to consider the applicant’s claim that he feared persecution because of being photographed with some prominent members of the Fijian community and that this would have implied that he was with this core group of quite high profile people.

   d.  Rather than consider the consequences of whether being photographed in a way that suggested quite a degree of closeness with this core group of people would put the applicant at risk, the Tribunal stated it was not satisfied that this of itself gave him a profile that would place him at risk of serious or significant harm (D[150]).

   e.  Relying on DFAT’s Country Report as the sole basis for discarding any evidence that the applicant’s activities in Australia may place him in serious or significant harm (D[150]), there was no rational basis between the evidence and the Tribunal’s decision.

2. Initially the Applicants addressed this ground together with ground 4 which, as discussed below, is expressed as an assertion that the Tribunal erroneously gave “no weight” to the Applicant’s participation and involvement in political activities and failed to consider corroborative evidence and/or miscarried its statutory task.  Grounds 3 and 4 were said to raise very similar arguments.  However the Applicants also provided post-hearing written submissions addressing grounds 3 and 4 separately. 

3. Insofar as this ground involves a contention that there was no rational connection between the material before the Tribunal and its conclusion in relation to the Applicant’s activities in Australia, the Applicants did not cite any authority in relation to irrationality or illogicality and did not address the principles summarised in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [59] to [61] relied on by the First Respondent.

4. The solicitor for the Applicants pointed to the fact that the Applicant had claimed that he feared harm because he was photographed with some prominent members of the Fijian community.  It was submitted that the fact of this photograph would have implied that the Applicant was with a core group of quite high profile people who were well-known political activists who were opposed to the current Fijian government and that the Tribunal should have considered whether the Applicant would be put at risk of harm because he was photographed in a way that would suggest quite a degree of closeness with this “core group” of people.  

5. It was said to be critical that the Tribunal made what were described as three findings in paragraph 150 of its reasons for decision.  The findings referred to in support of this ground are highlighted as [1], [2] and [3]  in paragraph 150 as follows:

   [1] It has considered his claims and evidence that he attended and was photographed at the 2014 rally to protest against Bainimarama, and accepts that he was present and was photographed alongside other members of the community including Suliasi Daunitutu and Moapetamo Siganisucuvinaka, among others.  The Tribunal accepts on the evidence submitted by the applicant’s representative that some of the individuals pictured with him are prominent members of the Fijian community who are well documented as outspoken advocates of democracy and critics of the Bainimarama government.  [2] While it accepts that the applicant was photographed with a banner showing a political message critical of the regime and that he may have personal opinions opposing the current government, the Tribunal is not satisfied that this of itself gives him a profile that would place him at risk of serious or significant harm.  In reaching this conclusion the Tribunal has taken into consideration information contained in DFAT’s Country Report which indicates the environment for public expression of political opinion has improved since the 2014 election; that criticism of public policies is permitted and occurs.  It has also taken into consideration the qualification expressed in DFAT’s report, that some uncertainty remains of the permissible limits on public commentary and its observation that most commentators remain circumspect in any public criticism of the Prime Minister or Attorney General.  DFAT’s assessment is that it is high profile public figures and leaders of organisations who might be seen to challenge the government’s authority or undermine its legitimacy who are at risk, and that the risk is of monitoring and harassment by the military and harassment through the court system.  [3] The Tribunal does not accept the applicant’s attendance and being photographed at one rally in Australia, membership of SODELPA and attendance at some meetings in Griffith have given him a profile that would attract the interest of the authorities.  In any event, the Tribunal also does not consider that monitoring and surveillance of itself would come within the meaning of serious harm for the purposes of s91R(1)(b).  For these reasons the Tribunal is not satisfied the applicant will face a real chance of serious or significant harm on the basis of his activities in Australia.

   (emphasis and numbering added)

6. The Applicant acknowledged that the Tribunal had accepted that he had been photographed with a banner at the political rally showing a political message critical of the regime, but submitted that it had failed to make an important distinction in its reasons between that photograph and the photograph with dissidents that was of major concern and that, in so doing, it had failed to have regard to relevant material and had therefore drawn a wrong inference. 

7. It was acknowledged that at the second Tribunal hearing the Tribunal had raised with the Applicant the issue of the consequences of his association with SODELPA and his photograph with prominent members of FDFM and SODELPA as follows (transcript 2, page 38, lines 9 to 30):

   TRIBUNAL:   The other issue that I put to you is that from all of what you have said or what appears before me, I may take the view that your involvement in the political organisations has been at quite a low level.  While I acknowledge your claim that your having been photographed with some of the leaders that are well known and quite vocal in their opposition – well, as I understand your claim is that that imputes a more active role or a more opinionated position than you may have, and that for that reason you’re more at risk, I may find that given that you haven't been yourself as vocal as some of these individuals have been, that even though you’ve been photographed, these were events were (sic) many, many people attended and given the relatively small community of Fijians here in Australia, some of those individuals who you’re next to do know many other people.  So I may find that that association won’t necessarily place you at any further risk – any great risk, I should say.  Is there anything further you would wish to say about that?

   INTERPRETER:   Disregarding the photographs of the protest, there were photographs taken by Bainimarama’s bodyguard.  He took pictures of us during the protests and being very vocal on that particular day.  And since that event, that protest, Bainimarama has announced or made a statement that, “All those Fiji citizens living overseas who have expressed anti-government meetings or slogans or anything expressed against the Fiji government, they will be targeted and we will seek them out.” 

1. It was submitted however that the Tribunal had failed to consider properly the Applicant’s claims that he was at risk of persecution by reason of the imputed political opinion which would arise by virtue of the fact that the was photographed with well-known dissidents and photographed by the bodyguards in circumstances where Mr Bainimarama had made the statement referred to at the hearing which was described in an article from the Fiji Times Online which was given to the Tribunal.

2. At the second Tribunal hearing, in response to a reference by the Applicant to the statement Mr Bainimarama had made about targeting Fijians living overseas who expressed opposition to the government (transcript 2, page 38, lines 24 to 30), the Tribunal had clarified that this was the article he had recently provided to it through his agent and had asked:

   TRIBUNAL:   So that’s the one where he stated: 

   If you encourage sedition, you are committing a serious offence if you urge violence against anyone in Fiji.

   APPLICANT:   Yes.

3. Subsequently (at page 39) the Tribunal asked:

   TRIBUNAL:   And have you done any of those things?

   APPLICANT: What I’m afraid of is that they have taken photographs of us.  Those photos will be with them and they’ll be seeking to identify everyone in that photo.

4. The Applicants submitted, however, that as reported in the Fiji Times, the threat by Mr Bainimarama was not limited to people who encouraged sedition and included Fijians plotting against the Fijian state overseas “including certain high profile figures in Australia”.  It was contended that the fact that the Applicant was in a photograph with well-known high profile political activists would automatically have led to him being perceived as a high profile activist.

5. It was also pointed out that the Applicant had stated to the Tribunal that he was fearful of being persecuted upon his return to Fiji because of his association with Mr Daunitutu, the former national president of FDFM, and because Bainimarama’s brother had seen him at the 2014 protest rally.  This matter was discussed at the Tribunal hearing (transcript 1, page 27, lines 24 to 30) as follows:

   TRIBUNAL:   Why are you worried about going back to Fiji due to your connection with Mr Daunitutu?

   APPLICANT:   Because of his association with Mr Daunitutu because Mr Daunitutu is the main man who is involved in the fight against the new government.  So because of his association with him, he’s afraid – it contributes to his fear of being persecuted if he returns to Fiji.

6. After the Tribunal suggested that most of the people at the rally would have had an association with Mr Daunitutu and that there were no reports of anything happening in Fiji to people involved in the rally, the interpreter described the Applicant’s response as follows (transcript 1, page 28, lines 8 to 10):

   (indistinct) Bainimarama’s brother was there, he saw him.  He knows him because he wouldn’t just walk away from that – Bainimarama’s brother knew him.  So when he was there, he saw him (indistinct).

7. The Applicant submitted that the Tribunal had failed to consider the profile of the well-known dissidents with whom he was photographed. It was pointed out that he had appeared in the photograph in question with Mr Daunitutu and two other high profile anti-government dissidents.  This was said to be no ordinary photograph as Mr Daunitutu’s arm was draped around the shoulder of the Applicant.  It was submitted that this suggested a far greater acquaintance than may actually exist and that it had the propensity to suggest that the Applicant was associated with a member of a core group of high profile individuals or organisers of the protest. 

8. It was suggested in submissions (in these proceedings) that the Applicant’s appearance in this particular photograph and the pose therein, together with his background with the Fijian military, albeit at a low level, tended to impute him with a political opinion opposed to Bainimarama and to suggest that he had a close relationship with high profile political opponents of the Fijian government in Australia with whom he appeared in the photograph.

9. It was also submitted that the Tribunal had failed to see the significance of a photograph that had “purportedly” appeared in the ABC news as well as on social media.  At the first Tribunal hearing, after a discussion of photographs that had appeared in the Fiji Times (copies of which were provided to the Tribunal), the Applicant had claimed that a friend of his had seen a photograph on the ABC, but that as he had not seen that broadcast himself, he did not know for sure (transcript 1, page 22).

10. In addition, reference was made to the fact that at the second hearing the Tribunal discussed the photographs with the Second Applicant.  She had claimed that they had photographs taken with Mr Naiqama Lalabalavu, who was said to be an opposition member of the Fijian government who had been suspended, as well as with another member of the opposition referred to as Niko.  The Second Applicant stated that she had put these photographs on her Facebook page on which she had also indicated that she supported SODELPA (transcript 2, pages 50 to 52).

11. The solicitor for the Applicants explained that his contention was that while the Tribunal had accepted that some of the individuals pictured with the Applicant were prominent members of the Fijian community who were well-documented as outspoken advocates of democracy and critics of the Bainimarama government, when it came to make its findings, it had considered only one particular photograph, being the photograph in which the Applicant was standing with a banner, despite the fact that he had not at any time stated that it was that particular photograph that was the basis of his fear of serious or significant harm. 

12. The Tribunal was said to have accepted that the Applicant was photographed with a banner showing a critical political message and that he may have personal opinions opposing the current government, but was not satisfied that this “of itself” gave the Applicant a profile that would place him at risk of serious or significant harm.  It was suggested that in making this finding the Tribunal had taken into account information in a DFAT country report which assessed that “it is high profile public figures and leaders of organisations who might be seen to challenge the government’s authority or undermine its legitimacy who are at risk”, but that the finding about the photograph with banners did not determine the risk faced by the Applicant because of being photographed with prominent critics of the Bainimarama government. 

13. It was also contended that while in the third highlighted finding in paragraph 150 of its reasons the Tribunal had referred to the Applicant attending and “being photographed” at one rally in Australia, as well as to his membership of SODELPA and attendance at meetings at Griffith, it had nonetheless failed to address the critical photograph of the Applicant with prominent members of the Fijian community who were opposed to Bainimarama’s government.

14. The Applicants submitted that the Tribunal had failed to have regard to relevant material or failed to make findings on material questions of fact that affected the exercise of its jurisdiction and/or that it had denied the Applicant procedural fairness.  In these circumstances it was also submitted that the Tribunal’s finding was unreasonable and illogical. 

15. The First Respondent submitted that the Tribunal had considered the Applicant’s claims about his activities in Australia, had accepted that he was photographed at a rally with prominent members of the Fijian community and that in paragraph 150 of its reasons it had addressed his claims to fear harm on this basis.  Further, it was submitted that the Tribunal’s findings in that respect were reasonably open to it given its earlier findings in relation to the Applicant’s profile and the country information to which it referred.  The First Respondent contended that the Applicant had not demonstrated “extreme” illogicality in this reasoning (cf CQG15 at [59] to [61]).

16. Beyond this, the Applicant’s submissions in support of ground 3 were said to seek impermissible merits review.

Consideration

1. As pleaded, this ground took issue with the Tribunal’s findings in paragraphs 149 to 150 relating to the Applicant’s activities in Australia with SODELPA and the FDFM.  However the focus of the particulars and the Applicant’s submissions was on whether the Tribunal considered the claim about the consequences of being photographed at the 2014 rally with high profile opponents of the Fijian regime.

2. While the Applicants focused on part of paragraph 150, paragraphs 149 and 150 should be considered in their entirety and also in the context of the decision as a whole.  I also note that, as discussed below, paragraph 150 contains more than three findings. 

3. It is notable that the Tribunal set out in some detail the Applicant’s claims and those of his representative in relation to the Applicant’s increased involvement with SODELPA in Australia, his attendance at the 2014 rally and what occurred at that rally, including being photographed at the protest with a core group of the more high profile protestors with Daunitutu’s arm about his shoulder.  The agent was said to have described Daunitutu as a “well-known Bainimarama antagonist” and to have claimed that this implied that the Applicant was close to and aligned with Daunitutu.  The Tribunal recorded that at the first hearing it had asked the Applicant about his participation at the rally and had put to him information in the DFAT report subsequently referred to in paragraph 150 its reasons.  The Tribunal also recorded that at the first hearing it had asked the Applicant about his association with Daunitutu and had put to him that most of the people at the rally would also have some connection with Mr Daunitutu.

4. The Tribunal outlined the evidence at the second hearing, including the Applicant’s claims about photographs being taken by Bainimarama’s bodyguard and about Bainimarama’s public statement, which it summarised as follows:

   92.  The Tribunal put to the applicant that it may find that he does not face a real chance of harm on the basis of the photo of him at the rally because there were many people there and he is not otherwise active or vocal so unlikely to have a high profile to put him at risk.  He said that photos were being taken by Bainimarama’s bodyguard that day and he was being very vocal.  Since that day, Bainimarama has made a public statement that he will come after overseas Fijians who have expressed anti government views.  The Tribunal asked the applicant if he has encouraged sedition or violence.  He said he is afraid that they have photos of people at the rally and he can be identified.

5. In its reasons the Tribunal discussed country information about the then current political situation in Fiji, including in relation to treatment of SDL members and supporters and members of FDFM.  Relevant to this ground of review, it referred to information about the public statement by Bainimarama.

6. Having described the Applicant’s claims in some detail, the Tribunal considered his claimed involvement in political activities in Australia (including the claims about who he was photographed with at the rally and his fear that dissemination of such photographs put him at risk of serious or significant harm).

7. As indicated, the Tribunal accepted the Applicant’s evidence about his involvement with SODELPA and Fiji pro-democracy actions, including his participation in meetings and at the 2014 rally.  It stated at paragraph 149 that it had considered the nature of his (and his wife’s) involvement with SODELPA and their “participation” in the 2014 protest rally.  This clearly encompassed what the Applicant claimed occurred at that rally as described earlier in the Tribunal’s reasons. 

8. The crux of the Applicant’s complaint in this ground appears to relate to the wording of the Tribunal’s findings at paragraph 150 in relation to the fact he was photographed at the 2014 rally.  In particular, it appears to be contended that while the Tribunal accepted that the Applicant was photographed with prominent critics of the Fijian government, as well as photographed with a banner showing a critical political message, it did not consider the implications of the former photograph.  

9. Given its general acceptance of the credibility and honesty of the adult Applicants and its acceptance of his claims about participation at the 2014 rally (at which he was photographed) and reading the Tribunal’s reasons fairly and as a whole, it is clear that the Tribunal accepted that the Applicant was photographed as he claimed alongside other members of the community, including Daunitutu and Siganisucuvinaka (whose positions as former national president of FDFM and SODELPA’s Griffith President had been described earlier in the Tribunal reasons) and his other claims about events at the 2014 rally. 

10. At the start of paragraph 150 the Tribunal accepted the claim that, on the evidence submitted by the Applicant’s representative, some of the individuals pictured with the Applicant were prominent members of the Fijian community who were well-documented as outspoken advocates of democracy and critics of the Bainimarama government.

11. The Tribunal then turned to consider the implications of what had occurred at the rally.  It found, first, that being photographed with a banner showing a political message critical of the regime and holding a personal opinion opposed to the regime did not “of itself” give the Applicant a profile that would place him at risk of serious or significant harm.  In reaching this conclusion (on the basis the Applicant may be perceived to oppose the regime) the Tribunal had regard to country information about the environment for expression of political opinion in Fiji.

12. The Tribunal went on to refer to DFAT’s assessments that it was high profile public figures and leaders of organisations who might be seen to challenge the Fijian government’s authority or undermine its legitimacy who were “at risk”.  The Applicant had not claimed that he was a high profile public figure or leader.  Any implicit claim that his photograph with prominent members of pro-democracy movements (or the other claimed events at the rally, including being seen or photographed by persons associated with Bainimarama) gave him a high profile was considered by the Tribunal in its finding that it did not accept that the Applicant’s attendance at and “being photographed at one rally in Australia”, together with his membership of SODELPA and attendance at some meetings in Griffith had given him a profile that would attract the interest of the authorities.

13. Indeed, even if this particular finding in paragraph 150 is not to be seen as encompassing all of the bases on which the Applicant claimed he had a profile that would attract the interest of the authorities, the Tribunal went on to make a separate finding in the alternative, in effect that even if the events and activities which it accepted had occurred would attract the interest of the Fijian authorities, the consequence for high profile figures and others attracting the interest of the authorities was monitoring and surveillance, which the Tribunal found would not come within the meaning of serious harm.  It was for “these” reasons that the Tribunal concluded that it was not satisfied the Applicant would face a real chance of serious or significant harm “on the basis of his activities in Australia”.

14. In this way the Tribunal considered all the Applicant’s activities in Australia and their significance taken at their highest (including any claimed implication as to his profile from the circumstances in which he was photographed with a core group of high profile people).

15. It was reasonably open to the Tribunal to make such findings on the basis of the Applicant’s evidence and the cited country information.  It did not misunderstand the claim that the photograph with prominent critics (which it accepted in the first part of paragraph 150) was of major concern to the Applicant or the basis on which he expressed that concern. It sufficiently addressed this aspect of his claims in its findings.

16. It has not been established that the Tribunal misunderstood or failed to consider any evidence or integer of the Applicant’s claims in a manner constituting jurisdictional error.

17. Insofar as it was submitted that the Tribunal’s reasoning at paragraph 150 was illogical or irrational, it was reasonably open to the Tribunal to find that participating in and being photographed at a rally in the circumstances described and the Applicant’s other activities in Australia did not give him a profile that would place him at risk of serious (or significant) harm, given its previous findings, including in relation to his profile and the country information to which it referred.  The Tribunal did not overlook or “miscomprehend” the Applicant’s claims about the consequences of being photographed with prominent members of the Fijian community.  Further, it also addressed these claims in the alternative finding which is to be seen in light of the earlier citied DFAT information in that respect. 

18. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence before the Tribunal, illogicality or irrationality or unreasonableness would not arise simply because one possible conclusion had been preferred to another (see CQG15 at [59]). On “the probative evidence before the Tribunal a logical or rational decision maker could have come to the same conclusion” (SZMDS at [135]). Even if reasonable minds may differ as to the conclusion to be drawn from the evidence before the Tribunal, illogicality constituting jurisdictional error has not been established. The Applicant’s disagreement (even “emphatic disagreement”) with this aspect of the Tribunal’s conclusions is not sufficient to make out illogicality (see CQG15 at [61] and SZMDS at [124]). The requisite “extreme” illogicality has not been demonstrated (see CQG15 at [60] to [61]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] and SZMDS at [124]).

19. Further, no jurisdictional error is established by reason of the Tribunal’s reliance on a DFAT country report.  It did not “discard” any other evidence in a manner demonstrating jurisdictional error as was submitted.  Rather, it reached a conclusion about the Applicant’s profile based on this report and the activities engaged in by the Applicant.  The weight to be given to particular items of country information was a matter for the Tribunal.

20. It has not been established that there was no rational connection between the evidence and the Tribunal’s decision or that the Tribunal otherwise erred in the manner contended for in this ground. 

Ground 4

1. Ground 4 in the amended application is as follows:

   1.  The Tribunal erroneously gave no weight to the applicants’ participation and involvement in the political activities and put it down to being at “quite a low level”.  The Tribunal also stated that it may find that the applicant had not been as vocal as some of the other individuals had been.

   2.  By not considering the evidence at hand as to the reasons why the applicants’ would be singled out because of their participation and association with some of the leaders of the Fijian community, the Tribunal miscarried its statutory task and/or failed to consider corroborating evidence.

   Particulars

   a.  The Tribunal found that the applicants’ association with some prominent members of the Fijian community won’t necessarily place him at any further risk.

   b.  Contrary to the Tribunal’s findings, crucial evidence by the applicant stating that he and other protestors had been photographed by Bainimarama’s bodyguards had not been considered by the Tribunal.

   c.  The applicant provided evidence to the Tribunal with regards to a news release titled, “Fiji Prime Minister Frank Bainimarama vows to jail dissidents planning to overthrow government” (CB: 431-433).  However, the Tribunal minimised the consequence of this warning by Bainimarama by asking the applicant whether he had encouraged sedition or violence (D[92]).

   d.  Whether being photographed by Bainimarama’s bodyguards in a way that suggests quite a degree of closeness with the leading dissidents including Suliasi Daunitutu, Kenneth Zinck, and Rajendra Chaudhry amongst others, puts the applicant at significant risk of serious harm, was something that was not fully considered by the Tribunal.

   e.  The Tribunal was obliged to deal with a substantial and clearly articulated claim.  A failure by the Tribunal to consider and determine a claim is a constructive failure to exercise jurisdiction.

1. This ground also takes issue with the Tribunal’s consideration of the Applicant’s participation in the 2014 rally.  The Applicants contended that the Tribunal gave no weight to their participation and involvement in political activities and failed to consider evidence as to the reasons why they would be singled out because of their participation and association with some of the leaders of the Fijian community. 

2. Issue was taken with the fact that the Tribunal did not accept that the Applicant’s attendance and being photographed at a rally in Australia, his membership of SODELPA and his attendance at some meetings in Griffith had given him a profile that would attract the interest of the authorities.  The Applicant submitted that the Tribunal had “erroneously” made a finding that his association with some prominent members of the Fijian community would not necessarily place him at further risk.  It was contended that, contrary to the Tribunal’s findings, what was described as “crucial evidence” from the Applicant that he and “other protestors had been photographed by Bainimarama’s brother and bodyguards had not been considered by the Tribunal”. 

3. It was also submitted that while the Applicant had provided to the Tribunal an article in the Fiji Times entitled “Fiji Prime Minister Frank Bainimarama Vows to Jail Dissidents Planning to Overthrow Government”, rather than reading the article in its entirety and considering the harm the Applicant could face in the foreseeable future, the Tribunal had minimised the consequence of this warning by Bainimarama by asking the Applicant whether he had encouraged sedition or violence. 

4. In the context of addressing ground 4 the Applicant reiterated that the Tribunal had failed to consider the specific claim he put forward that on the basis of his photograph with high profile dissidents he faced a risk of serious or significant harm (as discussed above in relation to ground 3).  It was suggested that, instead of determining the consequences that may arise as a result of that specific photograph, the Tribunal had narrowed the scope of the evidence by considering only the photograph with a banner.

5. It was again submitted that in making this finding the Tribunal had considered the wrong photograph in circumstances where the Applicant had not raised any issues in relation to the photograph in which he was holding a banner.  His clearly articulated claim was said to be a fear that he faced on the basis of being photographed with the prominent dissidents who were against Bainimarama and his regime.

6. The Applicant also contended that the Tribunal had not considered whether being photographed by Bainimarama’s bodyguards in a way that was said to suggest quite a degree of closeness with leading dissidents and being seen by Bainimarama’s brother put him at significant risk of serious harm.

7. The Applicants pointed out that the functions of the Tribunal in reviewing a decision not to grant a visa were “informed by the statutory criteria for the grant of such visas” as discussed in NABE (No 2).  Reference was also made to the decision of the Federal Court in Huai XinLi v Minister for Immigration and Citizenship [2008] FCA 902; (2008) 102 ALD 354 at [22] in which the Federal Court referred to the Tribunal’s obligation to consider an applicant’s claims.

8. Reliance was placed on the remarks of Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [40] as follows:

   The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”.  In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review.  Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached…

9. The Applicant submitted that in this case he had clearly articulated his claims.  In pre-hearing submissions to the Tribunal the Applicant’s representative had referred to the specific photograph of the Applicant with Daunitutu with his arm draped about his shoulders and had submitted that the Applicant “believes that these photographs imply his closeness to Daunitutu and Siganisucuvinaka that this in turn impliedly inflates his own prominence in relation to the protest and that he is consequently at further risk in Fiji”.  It was also pointed out that in written submissions to the Tribunal of 8 July 2015 the representative had referred to the various photographs in which the Applicant appeared and which had been published online, in particular the photograph showing him in company with a number of other prominent people who were described. 

10. The Applicant also submitted that his representative had responded to the issue the Tribunal had raised at the hearing about the fact that while many Fijians had attended the protest, there were no reports of any of those people being harmed on return to Fiji and to its suggestion that while organisers (such as Mr Daunitutu) may possibly have a higher profile such that they may be harmed if they entered Fiji, it was improbable that there would be harm to someone of the Applicant’s profile.  The representative’s response in written submissions was as follows:

    Again, as the Applicant’s representative, I suggested to the Tribunal that whilst many people may have attended the protest, not many of them were captured in a photograph with Mr Daunitutu showing Daunitutu’s arm draped about their shoulder in a pose that suggests greater acquaintance than perhaps actually exists between himself and the Applicant.  I suggested that the photograph containing Daunitutu, the president of the Griffith chapter of SODELPA and the Applicant, had the propensity to suggest that the Applicant was associated with or a member of a core group of higher profile individuals or organisers of the protest.

    In light of the subsequent identification of two further high-profile and contentious individuals in the photograph (Chaudhry and Zinck) I wish to reiterate and reinforce the submission that the Applicant’s appearance in this photograph, particularly in the pose of being embraced by Suliasi Daunitutu and cumulatively with a background of the Applicant’s past history with the Fijian military (albeit comprising a lower level profile) tends to impute the Applicant with a political opinion opposed to Bainimarama and to align him and suggest a close relationship with the high-profile political opponents in the photograph with him.  Materials regarding Zinck, Chaudhry, Daunitutu and Siganisucuvinaka are provided below.

11. The Applicant submitted that in failing to consider such claims the Tribunal had failed to take into account a relevant consideration and hence had constructively failed to exercise jurisdiction in the sense considered in Htun at [14] and [42] and that such a failure to address his claims may also have given rise to a denial of procedural fairness as considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]. It was clarified that ground 4 relied on the principle that the Tribunal was required to deal with the case raised by the material or evidence before it and that where it failed to make findings on “a substantial, clearly articulated argument relying on established facts” that failure could amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction as considered in NABE (No 2) at [55].

12. The First Respondent submitted that, contrary to the assertion in this ground, the Tribunal did consider the evidence about the Applicant being photographed at the rally.  It was contended that the Applicant’s submissions disagreed with the Tribunal’s conclusion that he did not face a risk of serious or significant harm as a result of being so photographed, but did not establish any jurisdictional error by the Tribunal.  It was pointed out that merits were a matter for the Tribunal and not for the court (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [56] per Gleeson CJ and McHugh J).

13. In support of the proposition that the Tribunal had considered the Applicant’s claim to fear harm because of being photographed with dissidents at the rally, the First Respondent pointed out that the Tribunal had specifically noted this claim at paragraph 145 and had accepted it at paragraph 150.  It was again submitted that, on a fair reading, the Tribunal’s subsequent conclusion at paragraph 150 therefore included a consideration of this claim (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] to [47]).

Consideration

1. Paragraph 1 of this ground involves a contention that the Tribunal gave “no weight” to the Applicant’s participation and involvement in political activities in Australia, that it “put it down to being at ‘quite a low level’” and “stated that it may find” that the Applicant had not been as vocal as some others had been.

2. This was not a case in which the Tribunal gave “no weight” to aspects of an applicant’s claims.  As set out above, the Tribunal summarised and accepted the Applicants’ claims about the extent of their political activities in Australia and about their participation (which included being photographed and seen at the rally).  Insofar as ground 4 takes particular issue with the Tribunal’s conclusion as to whether the Applicant’s activities in Australia gave him a profile that would attract the interest of the authorities, the approach taken by the Tribunal did not amount to attributing “no weight” to the Applicant’s activities.  Rather, while accepting the activities and events occurred as claimed (including what was claimed about participation and photographs at the 2014 rally), the Tribunal ultimately found, as discussed above, that the Applicant did not face a real chance of serious or significant harm on the basis of his activities in Australia (and nor did his wife).  The Tribunal’s consideration of this aspect of the claims was in light of the country information referred to earlier in its decision about the risk to activists and opponents of the political regime in Fiji. 

3. In light of such country information (the gist of which was put to the Applicant at the hearing) it was, as discussed above, reasonably open to the Tribunal to find that the Applicant’s activities in Australia had not given him a profile that would attract the interest of the Fijian authorities.  In reaching this conclusion the Tribunal did not give “no weight” to the Applicant’s participation and involvement in political activities.  It had regard to the Applicant’s evidence and to his representative’s submissions.  It addressed such claims.

4. No jurisdictional error has been established in this respect.  

5. Nor is jurisdictional error established in the Tribunal’s lack of satisfaction that the Applicant had a significant or vocal profile as a result of his involvement in SODELPA and other pro-democracy organisations.  The Applicant has not pointed to any claims or evidence in this particular respect which the Tribunal failed to consider.

6. Insofar as this ground involves a contention that the Tribunal failed to consider evidence as to why the Applicants would be singled out because of their participation and association with some leaders in the Fijian community (as particularised), the Tribunal sufficiently addressed the evidence before it.  As described above, it summarised the Applicant’s detailed claims in this respect, including those made by his representative about the manner and circumstances of the photograph with those said to be a core group of more high profile protestors as well as his claim to have been photographed with a placard and by Bainimarama’s bodyguards and to have been seen by his brother.  It accepted that the Applicants (who it had found to be generally credible and honest witnesses) had attended and participated in the rally “as claimed”.  The fact that it did not accept all the agent’s submissions as to the implications of such events is not indicative of jurisdictional error.

7. The Tribunal considered the integers of (both) adult Applicants’ claims.  It did not fail to have regard to cogent evidentiary material of significance to the assessment of the Applicant’s claims (cf SZRKT and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67) in a manner giving rise to jurisdictional error. The absence of specific findings about the claims that the Applicant was photographed by Bainimarama’s bodyguards or seen by his brother is not indicative of such error. The Tribunal had previously referred to this aspect of the Applicant’s claimed (and accepted) participation at the rally. In any event, it found that even if the Applicant did have a profile of interest to the authorities, it did not consider that the resulting possible monitoring and surveillance (the consequences for high profile public figures and leaders of organisations described in the DFAT country report cited) would come within the meaning of serious harm or constitute significant harm. It was not necessary for the Tribunal to expressly refer to the specific claims referred to in particulars (b) and (d) to this ground in its findings, given that these matters were subsumed in this concluding finding at a greater level of generality (see Applicant WAEE at [47]).

8. As to the Fiji Times news article and Mr Bainimarama’s statement, this referred to sedition.  The Applicant did not suggest at the hearing that he had been involved in encouraging sedition or violence.  The Tribunal referred to other reports of Bainimarama’s statement.  It also considered whether the Applicant had a “high profile”, as referred to in the statement.  It was open to the Tribunal to rely on other country information as to the consequences for those with a high profile.

9. Contrary to particular (d), and as discussed above, when the Tribunal decision is read fairly and as a whole, it is clear that it considered whether the events at the rally including being photographed with leading dissidents in the manner claimed (as well as being photographed with a banner and other political activities in Australia and holding an opinion opposing the Fijian government) gave the Applicant a profile that would attract the interest of the Fijian authorities or contributed to such a profile or whether, if he had such a profile this put him at risk of serious or significant harm.  As indicated, the Tribunal accepted that the Applicant had been photographed as claimed with outspoken critics of the government.  Its concluding findings in paragraph 150 were at a sufficient level of generality to include this aspect of the Applicant’s claims (see Applicant WAEE at [46] to [47]).

10. The Tribunal also considered the claims of the Second Applicant in this respect.

11. Insofar as issue is taken with the manner in which the Tribunal raised matters of concern at the Tribunal hearings and put its possible reasoning to the Applicant including the relevance of the level of his involvement in political activities, that is not indicative of jurisdictional error.

12. Otherwise the Applicants’ submissions in relation to ground 4 disagreeing with the Tribunal’s findings seek impermissible merits review. 

13. This ground is not made out.

14. As none of the grounds relied on by the Applicants has been made out the application must be dismissed.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 29 January 2019

Corrections (30 January 2019)

The reference to the name of the Applicant in paragraph 11 has been amended to read “the Applicant”.