CFP18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 483
•9 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CFP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 483
File number(s): SYG 1242 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 9 April 2025 Catchwords: MIGRATION – Whether Tribunal erred by failing to take in account evidence or relevant considerations – whether failure to consider claims cumulatively – whether findings made contrary to evidence – allegation of inadequate standard of interpretation – proceedings adjourned in circumstances where interpreter in Court was same interpreter at Tribunal hearing – proceedings further adjourned after allegation of bias on part of Tribunal was raised in order to enable further evidence of same Legislation: Migration Act 1958 (Cth) ss 36, 91X Cases cited: Minister for Immigration and Citizenship v SZNPG(2010) 115 ALD 303
Re Refugee Review Tribunal; Ex Parte H(2001) 179 ALR 425
SZOYU v Minister for Immigration & Citizenship [2012] FCA 936
Division: General Federal Law Number of paragraphs: 67 Date of hearing: 11 June 2024
19 August 2024
23 September 2024Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms A Wilford, Sparke Helmore Lawyers ORDERS
SYG 1242 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CFP18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 28 April 2018 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application to show cause filed with this Court on 28 April 2018, the applicant seeks review of a decision of the Tribunal (Tribunal) made on 28 March 2018, affirming a decision of a delegate of the Minister (delegate) to refuse to grant him a Protection (Class XA) (Subclass 866) visa (visa).
BACKGROUND
The applicant is a citizen of Fiji who first arrived in Australia on 19 July 2015 (Court Book (CB) 66 to 67). On 22 September 2015, he applied for the visa (CB 13) and, on 10 November 2015, attended an interview with the delegate (CB 68). On 11 November 2015, the delegate refused to grant him the visa (CB 69).
On 3 December 2015, the applicant applied to the Tribunal seeking review of the delegate’s decision (CB 81).
On each of 20 December 2017 and 5 January 2018, the Tribunal wrote to the applicant and invited him to attend a hearing on 8 February 2018 (CB 97 and 100). The applicant attended the hearing to give evidence and present arguments, with the assistance of an interpreter in the Fijian language (CB 104).
On 28 March 2018, the Tribunal affirmed the delegate’s decision (CB 119).
Applicant’s claims
The following claims have been generalised to prevent ready identification of the applicant, in the spirit of s 91X of the Migration Act 1958 (Cth) (Act). More specific details of the persons and job descriptions referred to by the applicant and his claims are contained in the Court Book.
By his visa application, the applicant claimed that he had worked for a particular Fijian minister. The applicant said that one day he was confronted by military officers who demanded the keys to a government vehicle which he had parked outside his home (CB 32). When the applicant refused to hand over the keys, the officers bashed him in front of his family, and the applicant was subsequently terminated from his employment.
At his interview with the delegate, the applicant claimed that (CB 68):
(a)during the coup in 2006, he was working for a different government official when he was corralled by the military, detained, punched and had a gun pointed at him;
(b)the bashing incident referred to in [7] above took place on 21 April 2013. The military said if he told anyone what had happened, harm may come to his wife;
(c)in 2014, he requested a transfer from the particular ministry referred to at [7] above, from Suva to another place, to which he moved with his family. As the ministry was undergoing a restructure, the applicant’s position was made casual. The applicant says that because he received no explanation for the change in his employment, he resigned; and
(d)the military went to his previous home in Suva and questioned his neighbour about his whereabouts on several occasions, mostly recently on 3 November 2015. The neighbour did not reveal that the applicant was in Australia.
At the Tribunal hearing, the applicant advanced a further claim that he had been involved in leaking government information about a particular project to certain landowners who would be affected by that project. The applicant told the Tribunal that he had forgotten to mention the claim at his interview with the delegate (CB 122 at [19]). He claimed that, from 2013 to 2015, Fijian authorities had harassed him due to this information leak, that the bashing incident occurred partly because of it and because he was a “big supporter” of the Qarase government (CB 122 at [21]). The applicant also claimed that his transfer in 2014 from Suva was due to a promotion, but that soldiers kept looking for him (CB 122 at [22]).
Tribunal decision
The Tribunal accepted that the applicant worked for the particular ministry referred to at [7] above, that he had worked for the official referred to at [8(a)] above at the time of the 2006 coup, and that he had been detained along with others at Parliament House during the coup (albeit noting that he did not claim to have been personally targeted during that incident) (CB 124 at [34]).
The Tribunal was not satisfied that the applicant had been truthful about his experiences in Fiji and the reasons for his claimed fear of harm there. The Tribunal expressed several concerns with the applicant’s evidence, including that:
(a)while it was prepared to accept that the bashing incident occurred, the applicant’s own evidence was that this was the only harm that he encountered from the military until he left for Australia. In the time that he remained in Fiji following the incident, the applicant was promoted and transferred from Suva. While his job was made casual, he did not suggest that this was for any reason other than a ministry restructure. While the applicant had claimed in his visa application that he was sacked, this was inconsistent with later evidence (CB 124 at [35]);
(b)in relation to the applicant’s claim that he was targeted by the military for leaking information about the particular project, the Tribunal found that if this were true, it was implausible that he would not have mentioned it earlier. In the Tribunal’s view, the applicant introduced this new claim, as well as the claim to be a supporter of the Qarase government, in an attempt to strengthen the case after his visa was refused by the delegate (CB 124 at [36]);
(c)the Tribunal found the claim that in 2014 the military looked for the applicant, but could not find him, to be disingenuous. It considered that if the Fijian authorities wanted to find the applicant, they would have been able to do so because he was a government employee and had been able to travel in and out of Fiji without incident (CB 124 at [37]). Further, the Tribunal found it implausible that the authorities had been looking for the applicant since the time he left Fiji. While he told the delegate that the military came to his previous home most recently in November 2015 during which visit his neighbour did not reveal he was in Australia, his evidence to the Tribunal was that when authorities came to see his wife in July 2015, she told them that he was in Australia and was not coming back (CB 124 at [38]); and
(d)the Tribunal was concerned that the applicant did not seek protection the first time he visited Australia in November 2014, and found unpersuasive the explanation that he only realised he could do so when he told his family about his situation in July 2015 (CB 125 at [39]).
The Tribunal found the applicant’s claims as to why he faced harm to be vague and unsubstantiated. The applicant was unable to explain why the military would harm him when they had not done so previously (CB 125 at [40]). Further, as was discussed with the applicant at the Tribunal hearing, DFAT country information indicated that there was now a more open environment for people to express political opinions in Fiji, and there was no evidence that persons who had no profile would be targeted for expressing their opinion (CB 125 at [41]).
In light of these concerns the Tribunal was not satisfied that, if the applicant returned to Fiji, he would be targeted, harmed, hurt or killed by authorities (including the military), because he was privy to information about the project referred to at [9] above or leaked information about it to landowners. As such, the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm, or a real risk that he would suffer significant harm (CB 126 at [44] to [45]). The Tribunal found that the applicant did not meet
ss 36(2)(a) or (aa) of the Act and, therefore, affirmed the delegate’s decision.APPLICATION TO THIS COURT
As noted above, the applicant commenced the present proceedings by an application to show cause filed with the Court on 28 April 2018. At the time the proceedings were commenced, the applicant was represented by a solicitor.
The matter was initially docketed to another Judge of the Court (first primary Judge). On 18 May 2018, a Registrar of the Court made orders by consent which included that the matter would be listed for callover at a time to be notified to the parties administratively. Orders for the preparation of the matter for hearing were made, including a grant of leave to the applicant to amend his application by 2 July 2018. Presumably because the applicant was initially represented, he did not avail himself of the opportunity file an amended application in accordance with that grant of leave.
On 10 December 2018, the matter was called over before a Registrar who listed the matter for hearing before the first primary Judge on 12 September 2019. On 5 May 2019, the applicant’s solicitor withdrew from the proceedings. The proceedings were later placed in the central migration docket and were next called-over by a Registrar of the Court on 29 August 2023, on which occasion the applicant appeared by Microsoft Teams.
On 28 March 2024, the proceedings were docketed to me, and I made orders listing them for hearing on 11 June 2024 and granting the applicant further leave to file any amended application by 14 May 2024. Orders were also made for the applicant and first respondent file and serve written submissions 14 and 7 days before the hearing (respectively).
On 11 June 2024, the applicant appeared before the Court in person (first hearing). An interpreter in the Fijian language was also present. The first respondent was represented by a solicitor. Early in the course of the first hearing, it became apparent that the interpreter booked by the Court was the same interpreter who had facilitated the hearing at the Tribunal. In circumstances where certain of the applicant’s grounds of review took aim at the standard of interpretation at the Tribunal hearing, the Court adjourned the proceedings to enable a different interpreter to be arranged for the judicial review hearing.[1] That adjournment also enabled the applicant a further opportunity to file proper evidence going to that issue. At the conclusion of the first hearing, I made the following orders:
[1] Out of fairness to the applicant and not because the Court necessarily had any concerns as to his competence
1.The applicant must file and serve the following by 4:00pm on 2 July 2024:
a. any affidavit evidence on which he wishes to rely;
b. any amended application giving full particulars of the grounds relied on; and
c. written submissions.
2.The first respondent must file and serve the following by 4:00pm on 9 July 2024:
a.any affidavit evidence on which he wishes to rely; and
b.any supplementary written submissions.
3.The matter is adjourned for final hearing before Judge Given in person at 10:15am on 16 July 2024 in Court room 13.1 Level 13, 80 William Street, Woolloomooloo.
4.Costs of and incidental to the adjournment referred to in Order 3 above, and any amendment pursuant to Order 1(b) above, are reserved.
(June orders).
Not additional material was filed by the applicant in accordance with the June orders.
The proceedings returned before the Court for hearing on 19 August 2024 (second hearing). The applicant again appeared. An interpreter in the Fijian language (being a different interpreter than had attended on 11 June 2024) was present to assist the applicant. The first respondent was again represented by his solicitor. The Court Book was tendered for the first respondent and marked Exhibit “1R”. At the time the originating application was filed it was accompanied by an Affidavit in support made by the applicant which, other than annexing the Tribunal’s decision (a copy of which is in the Court Book), essentially made submissions in support of the grounds. Accordingly, and with the consent of the parties, that Affidavit was received as a written submission.
The first respondent filed written submissions in advance of the hearing, but outside of the time allowed by the Court. Leave was sought and granted at hearing for the first respondent to rely on those submissions. Other than his originating documents, the applicant has not filed anything since the commencement of his case.
During the course of addressing ground 3 at the second hearing, the applicant made statements which appeared to give rise to an additional allegation of bias constituted by what was said to have been an admonishment by the Tribunal member of the applicant and the interpreter at the Tribunal hearing. The applicant said that upon receiving the Tribunal’s decision, he was of the view the Tribunal had made up its mind about his application in advance. When asked what gave the applicant this impression, he went on the allege that it was the Tribunal’s tone, the words used and that he and the interpreter had been “told off”[2] by the Tribunal at hearing. When asked by the Court to elaborate, the applicant said this occurred because the Tribunal thought that he and the interpreter were known to one another, and that the way they were discussing things at the Tribunal hearing resulted in the Tribunal telling them off that day. The applicant alleged that because the Tribunal member told the interpreter off at the hearing this:[3]
really switches everything around, like he didn’t take notice of the ground that [I] put forward.
[2] Transcript dated 19 August 2024 at T12.04 to T12.16
[3] Transcript dated 19 August 2024 at T12.31 to T12.32
Having heard from the parties in respect of the other grounds of the application, the Court adjourned for a second time to enable the newly made allegation of bias to be further explored. This occurred in circumstances where the Court gave the applicant the option of proceeding with written submissions or to a further hearing. The Court gave the applicant the opportunity to speak with his wife to discuss his preferences as to the way forward, following which he confirmed that he wished for there to be a third hearing. While acknowledging that it is not for the Minister to make out an applicant’s case, in the interests of expediency, practicality and procedural fairness (having regard to the overarching purpose of this Court’s practice and procedure) in all the circumstances of this case and the allegations made, orders were made that the first respondent file additional evidence ideally to be a transcript of the Tribunal hearing, as follows:
1.The first respondent must file and serve the following documents by 4:00pm on 16 September 2024:
a.any additional Affidavit evidence; and
b.a supplementary outline of written submissions;
to address the issue raised by the applicant during hearing on 19 August 2024.
2.The proceedings are adjourned, part-heard, for further hearing before Judge Given at 10.15am on 23 September 2024 Court 13.1 Level 13, 80 William Street, Woolloomooloo.
On 16 September 2024, the first respondent filed an Affidavit of James Henry Shaw[4] (Shaw Affidavit) and further written submissions, as ordered. The parties again appeared before me for hearing on 23 September 2024 (third hearing), on which occasion the Shaw Affidavit was read for the first respondent without objection and, at the conclusion of hearing, judgment was reserved.
[4] Made on 16 September 2024
Grounds of review
By the originating application, the applicant raises 7 grounds of review as follows (anonymisation added):
Failing to take into account relevant considerations
1.The Tribunal failed to take into account that the Applicant was unrepresented at the Tribunal, and that the communication of his evidence to the Tribunal may have been affected accordingly.
2.The Tribunal, in its decision failed to take into account the fact that the Applicant’s leaking of confidential information on the [name of project] was due to his political allegiance to the SDL party led by Laisenia Qarase when the 2006 coup occurred and that his persecution was on account of his political views and the activism related to such political belief in trying to ensure indigenous group rights were protected at all times.
3.The Tribunal incorrectly found that the Applicant’s departure from Fiji, his return and subsequent departure to Australia when he lodged his Protection visa application meant that he was not a person of interest to the Fijian authorities.
Failing to properly consider the issues relevant to the Applicant’s case
4.The Tribunal failed to properly consider the role of the Military from the 2006 coup to present day and the immunities granted to it under the 2013 Constitution and the ongoing issues of military and police brutality against civilians.
5.The Tribunal did not properly consider the issues relating to the [name of project] and its opposition by the indigenous Fijian peoples and why the military was acting to suppress such opposition by not asking the Applicant to explain such matters to address any doubts that the Tribunal may have had with respect to his evidence in this regard.
Making findings contrary to the evidence presented at hearing
6.The Tribunal, at paragraph 35 of its decision record, incorrectly found that:
a. the event of April 2013 was the only harm which the Applicant encountered from the military until he left for Australia in July 2015.
However, the Applicant claimed he was harmed in 2006 (para 17 of the Tribunal decision) during a coup regardless whether he had stated that this was not a result of being personally targeted.
b. the Applicant was promoted in his job.
The Applicant however has not made such a claim.
c. although the applicant job was made casual instead of permanent the Applicant did not suggest that this was for any reason other than the ministry restructure.
The Applicant however did suggest that this may have been a victimisation.
d. the Applicant made inconsistent statement regarding whether he was sacked, or he resigned.
In doing so, the Tribunal failed to take into account the Applicant’s lack of competence in the English language and that intended meanings of words and/or sentences could have been lost in translation.
Failing to consider the Applicant’s claim cumulatively
7.The Tribunal failed to consider the Applicant’s claim cumulatively.
At the second hearing, the grounds had each been interpreted to the applicant, and he was invited to address them in turn. By submissions made at the second and third hearings by the parties, ground 3 was augmented to include an allegation of bias.
Ground 1
By this ground the applicant alleges that the Tribunal failed to consider his lack of representation before it and that as a result the “communication of his evidence” was affected.
When asked to address this ground at the second hearing, the applicant said that because he did not have a representative at the Tribunal hearing, he felt the Tribunal took him for granted, which he later clarified as meaning that the Tribunal did not take him seriously.
The applicant provided no evidence as to any misconstruction or misunderstanding of his evidence before the Tribunal, nor (until the first hearing before the Court) had he particularised how his lack of representation was said to have affected the Tribunal’s review.
As the first respondent correctly observes, there is no right to representation before the Tribunal (or before the Courts) in a migration matter. I agree that on a fair reading of the Tribunal’s decision there is nothing to suggest that the applicant was unable to present his case adequately, nor that the applicant’s lack of representation before the Tribunal (which is more often than not the case for applicants in the Tribunal) had any adverse impact on his ability to engage with it.
If ground 1 was intended to be an allegation regarding the standard of interpretation at the Tribunal hearing, there is nothing before me to suggest such that it was inadequate, let alone that it arose to a level which caused the Tribunal to misapprehend the applicant’s evidence giving rise to error: see SZOYU v Minister for Immigration & Citizenship [2012] FCA 936 per Jacobson J at [29] to [32]. The onus is on the applicant to demonstrate that any interpretation errors related to a matter of significance to his claims, and that there was a sufficient connection between the inadequate interpretation and the Tribunal’s findings. Despite multiple opportunities to furnish such evidence (see for example [18] above), no such evidence has been provided by the applicant.
I am not satisfied that there is an error of the kind alleged by ground 1.
Grounds 2 and 5
It is convenient to consider grounds 2 and 5 of the application together because they each direct themselves to an allegation that the Tribunal failed to properly consider the applicant’s claims in relation to the project, about which he claimed to have leaked information.
When asked to speak to these grounds at hearing, the applicant made a number of submissions as to the merit of his claims in this regard. After some considerable explanation to the applicant to reiterate that the Court does not decide the truth of his claims for itself, the applicant ultimately confirmed that the essence of ground 2 is that the Tribunal did not believe, rather than did not consider, his claims regarding the project. In respect of ground 5, the applicant confirmed that the allegation was in essence the same as ground 2.
The first respondent submitted that it was a matter for the applicant advance his claims and evidence. Specifically, the first respondent highlights that the applicant did not claim to have leaked information about the project because he was a political activist. I agree with that characterisation of the applicant’s claims.
Despite this, the Tribunal did consider the applicant’s claim in that regard and the claim to have supported the Qarase government (CB 122 at [19] to [21] and 124 at [36]). The Tribunal rejected each of those claims on the basis that they had never been advanced until the hearing, and appeared to have been made to strengthen the applicant’s visa application (CB 124 at [3]).
I agree with the submissions of the first respondent that it was reasonably open to the Tribunal to dismiss the claim based on the lack of evidence and the circumstances in which it was raised, as well as by reference to the Tribunal’s broader findings about the credibility of the applicant’s claims.
Accordingly, I am not satisfied that either of grounds 2 or 5 gives rise to an error.
Ground 3
By ground 3 (as it expressed in the originating application) the applicant alleges that the Tribunal erred in finding that the applicant’s travel between Fiji and Australia meant that he was not a person of interest to the Fijian authorities. It was when asked to speak to this ground at the second hearing that the applicant made allegations that the Tribunal’s decision was affected by bias (see [22] above).
Dealing first with ground 3 as it is expressed in the application, I agree with the submissions of the first respondent that the allegation proceeds on a misunderstanding of the Tribunal’s decision.
Properly understood, the Tribunal did consider the applicant’s claims that the authorities were looking for him, but was not persuaded. This was because the applicant had not raised any further instances of harm after the incident in which he was allegedly beaten, that he had not claimed to experience difficulties in entering or leaving Fiji, and that he had worked as a government employee whom the authorities could readily have tracked (CB 124 at [37] to [38]). The first respondent contends that, in the absence of any further claims of harm, and in circumstances where the Tribunal found it was logical that the authorities could have tracked the applicant down, the claim was properly understood and considered and the rejection of it was open on the materials before the Tribunal. I agree. As such, there is no error as alleged by ground 3 of the originating application.
Turning then to the allegations raised by the applicant at the second hearing, and met by additional evidence and submissions from the first respondent between the second and third hearings, I am satisfied that there is no error as alleged by the applicant. The allegation simply fails on a factual level.
The applicant alleges that the Tribunal had made up its mind in respect of his case which was apparent to him when the Tribunal member admonished the applicant and interpreter for discussions they had during the hearing, and that the Tribunal member was of the view that the applicant and the interpreter were known to one another.
As directed by the Court, the first respondent prepared additional evidence being a transcript of the Tribunal hearing in order to resolve the issue which forms Annexure JS-1 to the Shaw Affidavit (Tribunal transcript). The Tribunal transcript demonstrates that no exchanges of the kind alleged by the applicant before the Court (namely that the interpreter and/or applicant were “told off”), took place.
The Tribunal transcript is 18 pages long (being reasonably tightly spaced). The hearing information sheet in the Court Book records that the hearing lasted approximately 1.5 hours (CB 104 and 106). During the entirety of the hearing, there are only two exchanges that relate to the interpreter, as follows:
(a)early in the hearing, the Tribunal specifically informed the applicant as follows:[5]
[5] Tribunal transcript T01.39 to T02.03
Tribunal:…the purpose of the hearing is for you to give evidence in support of your case and for me to obtain the information I need to make a decision. So I would like to ask you some questions and also discuss with you any concerns that I have. And give you the opportunity to raise any other matters that you think are relevant. Interpreter is here and you may call on him at any time and he can only translate what we say to each other. He cannot give advice, so please do not ask him for advice. Did you have any problem understanding the interpreter earlier?
Applicant: No.
Tribunal: No, good. If there is something you don’t understand and the interpreter translates it and you still don’t understand, ask me again and I will put it a different way.
Applicant: Thank you ma’am.
Tribunal:These proceedings are confidential and nothing that you say will be made public in any way that might identify you and the interpreter is bound by confidentiality…
(b)at the conclusion of the hearing, the Tribunal said:[6]
…Thank you very much for attending, thanks interpreter for your work.
[6] Tribunal transcript T18.30 to T18.31
There is no evidence to corroborate the allegation that either the applicant or the interpreter was “told off” or chastised in any way, for any reason during the hearing. There is no exchange between the Tribunal and either (or both) of the applicant and the interpreter that could give rise to any suggestion that the Tribunal expressed a view that the applicant and the interpreter were known to one another.
The test for apprehended bias is well established. It is a rare case in which apprehended biascan be made out on the basis of the Tribunal's reasons alone: Minister for Immigration and Citizenship v SZNPG(2010) 115 ALD 303 at [18] per North and Lander JJ. There is nothing before the Court, including by reference to the Tribunal’s decision and the Tribunal transcript which would lead a fair-minded, lay observer who was properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, to reasonably apprehend the Tribunal had not brought an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal; Ex Parte H(2001) 179 ALR 425 at [31] per Gleeson CJ, Gaudron and Gummow JJ. Much less is there any evidence before the Court which would lead to the conclusion that the Tribunal’s decision is affected by actual bias.
I am satisfied that ground 3 as expressed in the originating application is not made out, and that the additional allegations of bias, made at the second hearing, are baseless.
Ground 4
By this ground, the applicant alleged that the Tribunal failed to consider the role of the Fijian military, from the time of the coup in 2006 until the making of the decision, including general issues of police brutality towards civilians.
The first respondent says, and I agree, that the question before the Tribunal was whether the applicant faced a real risk of harm in the relevant statutory sense, based on the specific claims he made and the evidence before it.
The Tribunal is not a commission of inquiry charged with examining, much less searching for, general dangers faced by the population of an applicant’s home country. In the present case, upon and examination of the applicant’s claims, the Tribunal was not satisfied that he would face the requisite harm. That conclusion was open to the Tribunal based on the claims before it and the evidence presented in support of those claims. It was not required to consider the role of the Fijian military in the 2006 coup or military/police actions against the Fijian civilian population.
There is no error arising from ground 4 of the application.
Ground 6
By this ground, the applicant takes issue with the Tribunal’s findings at [35] (CB 124) of the decision. The ground has multiple particulars.
Given the challenge to [35], the paragraph warrants setting out in full (errors[7] in his original):
The Tribunal is prepared to accept that in April 2013 the applicant was arrested and beaten by the military for parking his government car at home overnight, taken to the military base hospital for treatment and, on his release, warned not to tell anyone what happened, as claimed in his original application. By the passport’s own evidence at hearing, this was the only harm which he encountered from the military until the time he left for Australia in July 2015. In the two and a half years he remained in Fiji he was promoted in his job and moved from Suva to Lautoka. Although his job was made casual, instead of permanent, the applicant did not suggest that this was for any reason other than the ministry restructure. While he claimed in his written application that he was sacked and unemployed, this is not consistent with his later evidence that he opted to resign this position when he left for Australia.
[7] In particular, it seems tolerably clear that “By the passport’s own evidence” should have stated “By the applicant’s own evidence”
By particular 6(a), the applicant takes issue with the observation by the Tribunal that by “his evidence at hearing, this was the only harm which he encountered from the military until the time he left for Australian in July 2015”. The operative words in that finding are “at hearing”. It is clear from [17] of the Tribunal’s decision, that it was aware the applicant had given a different account to the delegate. With the benefit of the Tribunal transcript, it is clear that what the Tribunal recorded in [35] is an accurate account of the applicant’s claims at the Tribunal hearing.[8] There is no factual error in [35], much less does it give rise to a jurisdictional error.
[8] Tribunal transcript T09.10 to T09.13
When discussing particular 6(b) with the Court, the applicant conceded that he had in fact made a claim to have been promoted (CB 122 at [22]) and that, rather than there being an error in [35] of the Tribunal’s decision to this effect, particular 6(b) was included erroneously in the application.
Particular 6(c) took issue with the Tribunal’s description of the applicant’s role being changed from permanent to casual by reason of a ministerial restructure. The applicant says this finding was in error. However, the applicant made this claim to the delegate (CB 68 (penultimate bullet point)).[9] Accordingly that factual finding of the Tribunal was also not in error.
[9] Tribunal transcript T06.19 to T06.26
Lastly, by particular 6(d) the applicant alleges that the Tribunal erred in its finding that he applicant had inconsistently claimed to have been dismissed, yet also to have resigned. This particular alleges that the Tribunal failed to account for the applicant’s lack of competency in English.
I agree with the submissions of the first respondent that there is no evidence before the Court indicating that the Tribunal has mis-recorded or misunderstood the evidence given before it by the applicant. A review of the Tribunal transcript also does not reveal any instances where difficulties arose with the interpretation of evidence, much less difficulties during the giving of the evidence which was summarised at [35] of the Tribunal’s reasons for decision.
In essence by ground 6, the applicant disagrees with the Tribunal’s conclusions. However, that does not render them erroneous. It is understandable that the applicant is unhappy that the Tribunal did not find in his favour overall. However, that is not indicative of an error. There is no factual error in [35] of the Tribunal’s reasons and the applicant’s challenges to it are an attempt to have the Court revisit those findings which is not a task within the Court’s jurisdiction.
Accordingly, ground 6 is not made out.
Ground 7
By his final ground the applicant alleges that the Tribunal failed to consider his claims cumulatively. When asked to speak to this ground at hearing, the applicant said that he submitted all the evidence, but the Tribunal “didn’t take interest in it”.[10]
[10] Transcript dated 19 August 2024 at T17.21
The first respondent made submissions that the Tribunal’s decision diligently records it having given due consideration to each of the applicant’s claims and the evidence he had advanced in support thereof. That consideration included the applicant’s claims regarding his work for the Fijian government, alleged instances of harm, and the changes to his role/s. The Tribunal found there to be numerus inconsistencies in the applicant’s evidence.
Contrary to this allegation in ground 7 the Tribunal made a cumulative finding that, based on all the material before it, it was not satisfied that the applicant would face harm if he returned to Fiji (CB 126 at [44]).
I agree with the first respondent’s submission that the Tribunal clearly had regard to the applicant’s claims both individually and cumulatively. Ground 7 does not give rise to an error.
CONCLUSION
The applicant has not succeeded in establishing error in the Tribunal’s decision by the grounds as contained in the originating application, nor by the additional allegations of bias made at the second hearing. Absent jurisdictional error the decision of the Tribunal is a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 9 April 2025
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