PLAINTIFF S244/2012 v Minister for Immigration - [2016] FCCA 537

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLAINTIFF S244/2012 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 537

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicants claiming political persecution in Fiji – applicants not believed in critical respects – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 422B, 424A, 424AA, 425

Cases cited:
Lansen v Minister for Environment and Heritage (2008) FCAFC 189; 174 FCR 14
Minister for Immigration v SZLFX [2009] HCA 31
Minister for Immigration v SZMDS (2010) HCA 16; 240 CLR 611
Re Minister for Immigration; Ex parte Durairajasingham (2000) HCA 1; 168 ALR 407
SFGB v Minister for Immigration (2003) 77 ALD 402; [2003] FCAFC 231
SZBEL v Minister for Immigration [2006] HCA 63; 228 CLR 152
SZBYR v Minister for Immigration (2007) 81 ALJR 1190
SZSWC v Ministerfor Immigration & Anor [2015] FCCA 415

First Applicant:

PLAINTIFF S244/2012

Second Applicant:

SZVIC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2924 of 2014

Judgment of:

Judge Driver

Hearing date:

14 March 2016

Date of Last Submission:

7 April 2016

Delivered at:

Sydney

Delivered on:

6 May 2016

REPRESENTATION

Counsel for the Applicants:

Mr B O'Donnell

Solicitors for the Applicants:

Australian Government Solicitor

Solicitors for the Respondents:

Mr A Silva of Silva Solicitors

ORDERS

The application as amended on 21 March 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2924 of 2014

PLAINTIFF S244/2012

First Applicant

SZVIC

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 24 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants who are a husband and wife. Both applicants made claims for protection, although the first applicant was the principal applicant.
The following statement of background facts is derived from the submissions of the Minister.
The first applicant (applicant) is a citizen of Fiji who last entered Australia on 21 March 2010 on a tourist visa.
On 10 May 2010, he applied for a protection (Class XA) visa (the first visa application). His wife, who is also a citizen of Fiji, was included in that application (second applicant). A delegate of the Minister refused the first visa application on 30 July 2010 and, on 21 February 2011 the Tribunal (differently constituted) affirmed the delegate’s decision[1].
[1] Court Book (CB) 139 [2]
On 26 November 2012, the applicants applied for a further protection visa (the second visa application), which was deemed invalid pursuant to s.48A of the Migration Act 1958 (Migration Act)[2]. The second applicant was included in that application as a member of the applicant’s family unit.
[2] CB 1-61
The applicants claimed to fear harm because they had been subjected to degrading and inhuman treatment and punishment by the Fijian authorities because of the applicant’s political involvement and because of their association with the second applicant’s uncle, Mr N[3].
[3] the name has been anonymised
Following the decision in SZGIZ v Minister for Immigration[4], the second visa application was later determined to be valid. The applicant was invited to attend an interview with the delegate on 1 April 2014. The applicant failed to attend[5]. On 1 April 2014, the delegate refused to grant the visas[6]. The delegate found that as that the applicant had failed to attend the scheduled interview it was not possible to talk to him about matters relevant to his application or to verify or discuss his claims[7]. On the basis of the limited evidence before him the delegate was not satisfied that the criteria under ss.36(2)(a) or (aa) were met[8].
[4] (2013) 212 FCR 235
[5] CB 76, 79
[6] CB 69-83
[7] CB 79-80
[8] In these proceedings no issue was taking concerning the scope of the review following the delegate’s decision
On 28 April 2014, the applicants applied to the Tribunal for review of the delegate’s decision[9]. The applicants appeared before the Tribunal on 5 September 2014 to give evidence and present arguments and were assisted by a migration agent.
[9] CB 84-89

Tribunal decision

The Tribunal noted that in his first visa application, the applicant had claimed to fear harm because he was a practising member of the Methodist Church but that the applicant abandoned this claim at the hearing. Accordingly, the Tribunal found he would not suffer significant harm on this basis[10].
[10] CB 142 [25]
On the basis of the applicant’s evidence and a statutory declaration submitted after the hearing, the Tribunal found that the applicant was a “low-profile” supporter of the United Fiji Party (Soqosoqo Duavata ni Lewenivanua) (SDL) whose activities were limited to using his car in campaigns and driving people to their homes. At the hearing, the Tribunal put country information to the applicant that low-profile supporters are not likely to be harmed, which the applicant accepted[11].
[11] CB 143-144 [28]-[30]
The Tribunal accepted that the applicant had worked for Mr N and that Mr N had been investigated and disciplined by the Public Service Commission in relation to a conflict of interest in contracts awarded to his company. However, based on independent country information, the Tribunal did not accept that Mr N was disciplined for, or found guilty of, sending anti-government statements[12].
[12] CB 144 [32]-[33]
The Tribunal found that the applicant fabricated his claim that he had information about an assassination plot involving Mr N on the basis that it was a significant matter but had not been mentioned in either of his visa applications[13].
[13] CB 145 [35]-[37] and CB 146 [39]
Given the Tribunal’s concerns about the applicant’s credibility and its findings in relation to Mr N, the Tribunal was not satisfied that the applicant had ever been taken by the military, ill-treated, questioned about Mr N or perceived as being associated with Mr N[14].
[14] CB 146 [39]
The Tribunal accepted that it was plausible that the second applicant was injured by a “blunt object” in light of a letter from CWM Hospital. However, it was not satisfied those injuries were inflicted by the military[15].
[15] CB 146 [40]
Based on the applicant’s own evidence and independent country information, the Tribunal found that the applicant’s ability to leave Fiji without any difficulty suggested that he was not of any interest to the authorities. It found his explanation that he was helped at the airport by a friend “unconvincing”[16].
[16] CB 146-147 [40]-[44]
The Tribunal also found that the applicant’s delay in leaving Fiji after his passport had been issued demonstrated that he did not fear harm. It found his explanation that he did not have funds for a plane ticket to be unconvincing[17].
[17] CB 147 [45]
The Tribunal did not accept that the second applicant was dismissed from her job because of her association with Mr N. It noted that the “memorandum” she had provided merely indicated that she was dismissed for “misconduct”[18].
[18] CB 147 [46]
Whilst the Tribunal accepted that the applicants both suffered from post-traumatic stress disorder (PTSD) it was satisfied they were able to participate in the hearing. It also did not accept that their PTSD was caused by their claimed fear of returning to Fiji[19].
[19] CB 147 [47]
The Tribunal considered a photograph of the second applicant taken while she was in immigration detention, which it accepted was published on the internet. It was, however, not satisfied that the photograph had, or could, come to the attention of the Fijian authorities[20].
[20] CB 147-148 [49]
The Tribunal went on to consider the aspects of the first applicant’s factual claims, which were accepted, but relied on country information to find that there was not a real risk that he would suffer significant harm[21]. It found that the second applicant claimed to have “been impacted as a result of incidents that had happened to her husband”. Accordingly, it found the fate of her application depended on the outcome of his[22].
[21] CB 149 [54]
[22] CB 149 [56]

The judicial review application

These proceedings began with a show cause application filed on 22 October 2014. At the time of the trial of this matter on 14 March 2016 the applicants relied upon an amended application filed on 29 December 2014. That amended application contained eight grounds of review:
(1) The Tribunal made jurisdictional error by failing to give adequate notice to the applicant about an adverse information
Particulars
See [23] at CB142. The Tribunal failed to give particulars of the “fraud and theft charges” relating to the applicant that was contained in the Departmental file CLF2012/235021 so that the applicant could deal with it to remove any prejudice that may linger from that. Specifically the Tribunal failed to give the information about “a police report number E53567989 from Moruya station” (CB 66).
(2) The Tribunal made critical credibility finding based on (a) a fact that did not exist and/or (b) Unreasonably
Particulars
See [35]-[37] at CB145. The Tribunal stated in [37] that:
“.. it is difficult to accept that the applicant was so overwhelmed to the point of forgetting to discuss a central claim and its details….”
However in [35] that Tribunal stated that:
“…The Tribunal indicated that the claim had been made before the previous Tribunal but not to such a degree of details…”
The fact that did not exist was that of “forgetting to discuss a central claim” in the first Tribunal hearing.
It is noteworthy that all other findings were predicated on this finding.
(3) The Tribunal made jurisdictional error by following a defective credibility finding process
Particulars
The Tribunal used the excuse of “in consideration of evidence as a whole” in [37], [39], [40], [44], [46], [47] and [48], see CB 145-147. The Tribunal used circular reasoning, in that once it made a defective finding about “forgetting to discuss a central claim”, it made the next finding based on this. So its claim of “in consideration of evidence as a whole” was hollow and baseless.
(4) The Tribunal made jurisdictional error by failing to make an independent credibility finding of the wife applicant who gave evidence and by dismissing her claim of discrimination recklessly and unreasonably without proper basis
Particulars
See [46] at CB147. Tribunal failed to inquire into this claim properly and made finding without proper reason.
(5) The Tribunal made jurisdictional error by not taking account of the evidence of a critical eye witness to incident of serious harm
Particulars
See [39] at CB146. The Tribunal failed to take account of the evidence of Usa Vakaloloma who had given a Statutory Declaration.
(6) The Tribunal made jurisdictional error by failing to carry out its review function in dealing with critical claims made and simply rejected them unreasonably without proper consideration
Particulars
The Tribunal rejected the applicant wife’s injury by blunt object by recklessly rejecting it without proper consideration and without viewing the scar from the injury to form an independent view. (See [40] at CB 146).
(7) The Tribunal made jurisdictional error in dealing with whether a person called Delai helped the applicant at the airport in that it failed to give this issue genuine consideration
Particulars
(a) The Tribunal failed to consider if a person can go through the immigration in Fiji with the help of an airport employee even if they are of adverse interest; and
(b) If all persons of adverse interest are not allowed to leave Fiji how come many adversaries of the government have come out of Fiji and how impossible for any Fijian to be granted protection visa based on adverse interest to the authorities.
See [42] to [44] at CB146-147
(8) The Tribunal made jurisdictional error in making a finding without evidence
Particulars
See [49] and [53] at CB147 & 149. The Tribunal’s finding that “On the evidence before it, the Tribunal is not satisfied that the photograph has or could come to the attention of the Fijian authorities” has no foundation in fact and is plainly Unreasonable.
It emerged during oral argument at the trial that a significant element in the applicants’ claims of jurisdictional error is an asserted breach of s.425 of the Migration Act in reliance upon the decision of the High Court of Australia in SZBEL v Minister for Immigration[23] (SZBEL). That assertion was not reflected in the grounds in the amended application and, notwithstanding the objections of counsel for the Minister, I gave the applicants leave to further amend their application to include the additional argument, subject to a costs penalty in relation to the cost to the Minister of preparing post hearing submissions on the issue. I also invited the solicitor for the applicants to reflect upon the apparent overlap between several of Grounds 2 to 7 in the amended application. On 21 March 2016 the applicants filed a further amended application, pursuant to the leave I granted, which raises the following grounds:
[23] [2006] HCA 63; 228 CLR 152
(1) The Tribunal made jurisdictional error by failing to give adequate notice to the applicant about an adverse information
Particulars
See [23] at CB142. The Tribunal failed to give particulars of the “fraud and theft charges” relating to the applicant that was contained in the Departmental file CLF2012/235021 so that the applicant could deal with it to remove any prejudice that may linger from that. Specifically the Tribunal failed to give the information about “a police report number E53567989 from Moruya station” (CB 66).
(2) The Tribunal made jurisdictional error in that it denied procedural fairness to the applicants since it prevented the main applicant from giving evidence he wanted to give on a major issue thus resulting in breach s.425 of the Act
Particulars
(i) When the main applicant began to give evidence on his central claim, that is, about him being a witness to the coup plot against Mr Bainimarama, the Tribunal tried to hurry him up since it told him twice to summarise the evidence, in spite of the fact he had just begun to [describe] what took place there. Thus it was not allowing him to give fuller evidence that he wanted to give. See Transcript Page 22.
(ii) Having understood that this was the central claim (para 36 of CB145) the Tribunal pressured the applicant as stated in (i) above on the falsely stated reason that there was no time but it was only half way (Page 22 of 44 pages of transcript) through the hearing.
(iii) This breach was particularly grave because the Tribunal already knew that the main applicant had complained through his advisor’s prior written submissions to the Tribunal (CB 103) that he was prevented from giving evidence about the coup in the first hearing because the First Tribunal member kept diverting him from giving this evidence. The applicant reinforced that at the hearing soon after the issue about summarising of evidence arose. See Transcript Pg24. The Tribunal should have been particularly careful because of this complaint not to repeat it or do something worse than what the First Tribunal did.
(iv) This is also important because the Tribunal blamed the applicant in its decision for forgetting to discuss a central claim (about the coup) and using that as the single most damaging basis against the applicant by making the finding that the applicant fabricated the claim. Because this was also used as the basis for further findings, all of the findings against the applicant were predicated on a false basis to start with.
(3) The Tribunal made jurisdictional error in that it denied procedural fairness to the applicants since it failed to indicate to the applicants (in spite of its assurance at the beginning that it will) any major issues that were of concern to the Tribunal so that the applicants could have attempted to respond to those concerns and therefore this resulted in breach s.425 of the Act
Particulars
(i) The Tribunal breached its obligation as stated in SZBEL. Although the applicants did not attend the Department interview because the applicants alleged that they didn’t receive the communication about the Department interview (which issue is not of relevance here) there was nothing in the Delegate’s decision except saying that the credibility was in issue. This was too general for the applicants to know what the contentious issues were. The Tribunal failed to indicate to the applicants that any of the major issues were in contention because the Tribunal just listened to it without commenting to expressing any concern. This is particularly the case with evidence about the coup.
(ii) By its behaviour the Tribunal gave a false sense of assurance to the applicants that their claims have been accepted by the Tribunal as evidence on each issue was progressively given, whereas Tribunal made findings ultimately rejecting almost all the claims as fabricated. It is important to note that the Tribunal had told the applicants right at the beginning of the hearing (Transcript Pg 3 ln13-15) that:
In the course of the hearing, the law requires me to discuss with you any potential concerns that I might have with your case.
(4) The Tribunal made jurisdictional error by following a defective credibility finding process
Particulars
The Tribunal used the excuse of “in consideration of evidence as a whole” altogether ten times in [37], [39], twice in [47] and [48], see CB145-147. The Tribunal used circular reasoning, in that once it made a defective finding about “forgetting to discuss a central claim”, it made the next finding based on this. So its claim of “in consideration of evidence as a whole” was hollow and baseless.
(5) The Tribunal made jurisdictional error by failing to make an independent credibility finding of the wife applicant who gave evidence and by dismissing her claim of discrimination recklessly and unreasonably without proper basis
Particulars
See [46] at CB147. Tribunal failed to inquire into this claim properly and made finding without proper reason.
(6) The Tribunal made jurisdictional error by not taking account of the evidence of a critical eye witness to incident of serious harm
Particulars
See [39] at CB146. The Tribunal failed to take account of the evidence of Usa Vakaloloma who had given a Statutory Declaration.
(7) The Tribunal made a jurisdictional error in making a finding without evidence or was unreasonable
Particulars
See [49] and [53] at CB147 & 149. The Tribunal’s finding that “On the evidence before it, the Tribunal is not satisfied that the photograph has or could come to the attention of the Fijian authorities” has no foundation in fact and is plainly Unreasonable.
The effect of the amendments is that the first and last grounds are unamended, but the number of grounds has been reduced to seven and there has been some amendment to what were formerly Grounds 2 to 7 (now Grounds 2 to 6).
In addition to the book of relevant documents filed on 25 November 2014, I have before me as evidence the affidavit of the first applicant made on 6 January 2015, to which is annexed a transcript of the hearing conducted by the Tribunal on 5 September 2014. I also received the affidavit of the applicants’ solicitor made on 8 March 2016 which annexes the first protection visa application made by the applicants.

I have been assisted by the submissions of the parties, made both orally at the trial of the matter on 14 March 2016 and in writing.

Consideration

Ground 1 – Did the Tribunal breach s.424A (or s.424AA) in relation to the “fraud and theft charges” allegation?

At [23] of its decision record the Tribunal said the following[24]:
In Departmental file CLF2012/235021, there is information about allegations concerning “fraud and theft charges” relating to the applicant. The Tribunal discussed the nature of this information with the applicant who denied any such charges. The Tribunal has not given weight to this information.
[24] CB 142
As indicated by the Tribunal in its decision, the issue was raised with the applicant by the presiding member at the Tribunal hearing. The transcript of that hearing reveals the following exchanges in relation to that issue[25]:
[25] Transcript, pages 29-31
MS YOUNES: I am not sure about this, but I need to raise an issue with you. Have you been charged with any offences in Australia?
[FIRST APPLICANT] (INTERPRETER): No, I have not.
MS YOUNES: Have you been arrested for anything?
[FIRST APPLICANT] (INTERPRETER): No.
MS YOUNES: I do not know what to make of this information and I cannot disclose it in full to you, but there is some information on the departmental file alleging that you have been charged with fraud. Is there any truth in that?
[FIRST APPLICANT] (INTERPRETER): I’ve never heard it before. This is the first time I’ve heard it.
MS YOUNES: I do not know more than what I am basically saying to you and although it is not relevant to the issues that we are discussing, because it can be adverse information, I needed to raise it with you, but I just want to ask you about it and you are saying you know nothing about it?
MR SILVA: Member, and also the claim about the SDL, my understanding is it’s only as a background to what else happened in - - -
MS YOUNES: I will ask him more about that.
MR SILVA: It’s not the SDL in itself. We are not saying simply because he’s an SDL member he’s being persecuted. That’s not the case, but it’s just the background to his involvement in the plot.
MS YOUNES: But as you would appreciate, Mr Silva, it is a claim that I have to make findings on, of course.
MR SILVA: Sure. I understand that.
MS YOUNES: But thank you. Mr Silva, did you make a request for Freedom of Information to obtain the departmental file?
MR SILVA: Yes.
MS YOUNES: Did you see that information or it was not - - -
MR SILVA: No, I don’t know. I didn’t - - -
MS YOUNES: It probably was excluded on the basis of public interest disclosure, but in any event, I just feel I need to ask you about it and it is not relevant to my inquiries, but if there is any truth in that it could be relevant as to whether, even if I set aside the decision, if there is a character issue that may come into it and hence I am exploring it.
MR SILVA: He was able to provide an AFP certificate, clearance certificate.
MS YOUNES: No I mean, I have no doubt that the applicant is telling me the truth in relation to this matter, of course, because I can easily find out otherwise.
MR SILVA: Sure.
MS YOUNES: So I am not concerned. The only reason why I am raising it is because it is in the departmental file and it is in my mind. I need to ask about it.
MR SILVA: I understand.
It is apparent to me from that exchange that the matter was raised by the Tribunal out of an abundance of caution. At no stage in the discussion at the hearing did the presiding member express any view that the information would be a reason, or a part of a reason, for affirming the decision under review. It is true that the presiding member said at one point that the information “can be adverse information” but it is also apparent that the presiding member was sufficiently assured by the responses of the applicant and his solicitor that she was able to conclude that the information would not be relevant to her enquiries.
In my opinion, the applicants cannot point to any stage of the review in which s.424A, or s.424AA were enlivened in relation to the information in question. Further, I accept the Minister’s submission that since no weight was given to the information given to the Tribunal, any breach of s.424A or s.424AA in relation to it could not have affected the Tribunal’s decision and so does not establish jurisdictional error[26].
[26] Minister for Immigration v SZLFX [2009] HCA 31 at [25]. In the alternative, since no weight was given to the information, any error in relation to it could not have affected the decisions and this cannot found relief: Lansen v Minister for Environment and Heritage (2008) FCAFC 189; 174 FCR 14 at [90]-[125] (especially [124]) (Moore and Lander JJ) and [299]-[307] (Tamberlin J) and the authorities analysed there

Grounds 2–3 – the fair hearing principle

The applicants have provided supplementary submissions in relation to Grounds 2 and 3 as amended. The applicants contend that Ground 2 is not an issue in relation to SZBEL, but is an issue arising pursuant to s.425 of the Migration Act.
Section 425(1) provides as follows:
Tribunal must invite applicant to appear
…
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicants contend that, where the main applicant was impeded from giving evidence s.425(1) is breached because he was not allowed to give evidence. Since he was asked to give a summary of the evidence he was asked to give “opinion” evidence and thus was prevented from giving direct evidence. In other words he was asked to give only part of the evidence. Thus he was being prevented from giving the evidence he wanted to give to advance his case.
The circumstances in which the applicant is said to have been prevented from giving evidence are set out in the particulars and parts of the transcript referred in the particulars and there is no need for repetition here.
The applicants raise Ground 3 as a SZBEL issue, consistently with oral argument at the trial of this matter.
The delegate stated that credibility was an issue. The applicants contend that this conveys nothing of substance in terms of the SZBEL issue in circumstances where the delegate did not identify what aspect of the applicant’s case caused the delegate to question the credibility of the applicants.
The Tribunal is said to have behaved as if it accepted the applicant’s evidence almost in its entirety. There is said to have been virtually no challenge to both applicants’ evidence; no expression of concern.
Thus the applicants claim to have been left with the impression that the Tribunal accepted the evidence of both the applicants.
The High Court held in SZBEL 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". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The applicants contend that, since the delegate effectively identified no particular issue other than a mere statement about credibility, the relevant issues should have been identified by the Tribunal itself.
The applicants contend that the failure by the Tribunal to identify any issues of concern breached the principle stated in SZBEL and thus there was a failure to afford procedural fairness to the applicants in terms of s.425.
To the extent that the applicants rely upon the decision of the High Court in SZBEL I prefer the Minister’s submissions on that issue.
It is important to place in its statutory context the decision in SZBEL and of the scope of the “hearing rule” of procedural fairness for Tribunal decisions under ss.422B, 424A, 424AA and 425 of the Migration Act.
Section 422B of the Migration Act limits the application to the Tribunal of the hearing rule of procedural fairness to the matters covered in Division 4 of Part 7. Sections 424A and 424AA deal comprehensively with what the Tribunal must put to the applicants. The matters pointed to by the applicants do not fall within those obligations, principally because, as thought-processes of the Tribunal, they do not fall within the meaning of the concept of “information” in s.424A and, by extension, s.424AA[27]; regarding the common law obligation[28] (quoted below).
[27] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [17], [18] and [21] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ)
[28] see SZBEL at [47]
However, a partial exception to the above principle is the doctrine arising out of the hearing provision in s.425 as enunciated by the High Court in SZBEL, especially at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ):
[I]f the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what the 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”.
(emphasis added)
The mischief SZBEL seeks to avoid is that applicants might not give evidence or present arguments on an issue before the Tribunal because they were misled by the delegate’s reasons into thinking that they had been accepted on that issue. Thus, in determining whether a difference between the delegate’s reasoning and that of the Tribunal is sufficient to engage a SZBEL obligation, the question is whether an applicant might reasonably have been misled into thinking that his or her claims had been accepted on a given issue. Similarly, in determining whether the Tribunal has done enough to discharge that obligation by “identify[ing] some issue other than those that the delegate considered dispositive”, the question is whether the Tribunal did enough to disabuse the reasonable applicant of any misapprehension that their claims with respect to that issue were not being tested by the Tribunal[29].
[29] see eg SZSWC v Ministerfor Immigration & Anor [2015] FCCA 415 at [26]-[42] (Judge Nicholls)
However, as the High Court pointed out in SZBEL at [47]:
[T]here may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
(emphasis added)
It is, in my opinion, clear that the reasons of the Minister’s delegate “sufficiently indicate[d] to [the Appellant] that everything he … [said] in support of [his] application [was] in issue”. It is clear from the delegate’s reasons that, as a result of the applicants failing to attend the requested interview, the delegate had doubts about the applicants’ general credibility and about the veracity of almost all their claims[30].
[30] CB 8
Moreover, the matters that by this ground the applicants allege the Tribunal ought to have put to them appear to be in the nature of “thought processes” and, as the High Court stated in SZBEL at [48][31]:
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
[31] See also SZBYR at [21] regarding the operation of the same principle under the rubric of ss.422B, 424A and 424AA of the Migration Act
For these reasons, and notwithstanding argument to the contrary at the trial of this matter, I accept that there is no scope for the principle in SZBEL to operate in this matter and the application of the hearing rule is thus entirely governed by ss.424A and 424AA, which do not apply to the material the applicants allege should have been put to them. The new argument thus fails.
To the extent that the applicants rely upon s.425, without any resort to the principle in SZBEL, I reject the contention that the hearing opportunity afforded the applicants was inconsistent with s.425. It is true that during the hearing, when the applicant was giving evidence about a meeting at which he overheard a discussion of a plot against Mr Bainimarama, the Tribunal asked him to just “summarise to me what happened, please?”[32]. However, this is in the context where the applicant had been going into considerable detail about the gathering, including his role in the provision of refreshments. The applicant responded to the request by saying “I’m just building up the background to what happened that made the military personnel interested in me in trying to get information from me”[33].
[32] Transcript, page 22 at line 7
[33] Transcript, page 22 at lines 9-11
The Tribunal member responded[34]:
Of course, and I am happy to hear that, but if you could summarise it for me because we have limited time, otherwise we could be here for quite a few hours and the interpreter is only booked until about 2.30, 3 o’clock. Are you able to summarise it for me?
[34] Transcript, page 22, lines 13-16
At that point, the applicants’ solicitor intervened to the effect that the meeting was a short one and it would not take the applicant long to recount the relevant details. There was a brief exchange and then the presiding member accepted the solicitor’s intervention.
In the circumstances, I am not persuaded that any impediment was placed in the way of the applicant giving evidence about this issue. While the applicants seeks to draw further support for their contentions from page 24 of the transcript, I do not accept that the Tribunal diverted the applicant from giving critical evidence. On the contrary, it is apparent from the transcript as a whole that the presiding member took pains to attempt to understand the applicant’s evidence about the meeting and to draw out the critical points of that evidence.

Grounds 2-6 – other issues

Ground 4 corresponds to Ground 3 in the application dealt with at the trial. I accept the Minister’s submissions on that ground.
The applicants allege that the Tribunal used the phrase “evidence as a whole” as a “ploy to avoid dealing with individual aspects of the claims.” In particular, the applicants complain about the Tribunal’s reliance on the fact that the claim about the assassination plot was not made in the protection visa applications.
It was open to the Tribunal to place emphasis on the applicant failing to mention the assassination plot in the protection visa applications as this was a “central claim.” In addition the finding was not irrational or illogical in the sense discussed in Minister for Immigration v SZMDS[35].
[35] (2010) HCA 16; 240 CLR 611 at [130]
In addition, the Tribunal was entitled to draw adverse inferences about the applicant’s credibility and disbelieve his claims. Those findings are findings of fact par excellence[36].
[36] Re Minister for Immigration; Ex parte Durairajasingham (2000) HCA 1; 168 ALR 407 at [67]
Ground 5 corresponds to Ground 4 in the application addressed at the trial. I accept the Minister’s submissions on that ground.
This ground misconceives the Tribunal’s findings. In reaching its finding, the Tribunal noted that it considered the evidence as a whole. This clearly included country information about the second applicant’s uncle not being found guilty of anti-government statements[37] and the Tribunal’s appraisal of the letter from the second applicant’s employer[38]. The Tribunal considered the second applicant’s evidence at [46][39] and made credibility findings that were open to it on the material.
[37] CB 144 at [33]
[38] CB 147 at 46
[39] CB 147
Ground 6 corresponds to Ground 5 addressed at the trial. I accept the Minister’s submissions on that ground.
The Tribunal accepted that the second applicant was injured by a “blunt object”[40]. However, the Tribunal went on to find that it was not satisfied that those injuries occurred in the circumstances claimed or that she or the applicant were of interest to the Fijian military. Viewing the scar would not have been capable of affecting the Tribunal’s factual findings in regard to who had been responsible for the injury or what their motives had been.
[40] CB 146 at [40]
The Tribunal clearly considered the evidence before it and relied upon its earlier factual findings that the military was not interested in the first applicant in finding that the second applicant was not injured as claimed. That finding was open to it and no error is revealed in its approach.

Ground 7 – Did the Tribunal fall into jurisdictional error by making a finding without evidence?

The applicants impugn the Tribunal’s reasons at [49][41] and [53][42] where the Tribunal said:
There is a photograph before the Tribunal of the secondary applicant whilst she was in detention in Australia for being unlawful. The Tribunal accepts that this photograph was published on the internet. On the evidence before it, the Tribunal is not satisfied that the photograph has or could come to the attention of the Fijian authorities.
As noted above, the Tribunal is not satisfied that the Fijian authorities have or could become aware of the secondary-applicant’s photograph on the internet. The Tribunal has however accepted that the applicant is a low level supporter of the SDL. Country information cited above indicates that it is unlikely that a low level supporter of the SDL would suffer harm.
[41] CB 147
[42] CB 149
The Minister concedes that, on its face, the proposition that the Fijian authorities could not become aware of the second applicant’s photograph on the internet and that the photograph could not come to the attention of the Fijian authorities is manifestly absurd. The Tribunal had before it evidence that the second applicant had been photographed at an anti-government demonstration and that the photograph had been published on the internet. It would be absurd to suggest that the Fijian authorities did not have access to the internet and could not find the photograph. The Tribunal had before it a letter from a retired Fijian policeman known to the applicants who states therein that a warrant has been issued for the arrest of various people including the applicants.
In SFGB v Minister for Immigration[43], the Full Federal Court stated, at [19]:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error ...;
and at [30] the Full Court determined that a jurisdictional error had been made.
[43] (2003) 77 ALD 402; [2003] FCAFC 231
The Minister concedes that the word could which appears in both [49] and [53] is not a typographical error and was placed in the Tribunal’s reasons intentionally. The Minister submits that, read beneficially, the Tribunal in those paragraphs was not suggesting that the Fijian authorities could not access the photograph on the internet but, rather, the Tribunal was putting forward the narrower proposition that the photograph could not bring the second applicant to the adverse attention of the Fijian authorities because neither she nor the first applicant were of any interest to the Fijian authorities.

It is unlikely that the Tribunal intended to make two statements in its reasons which were manifestly absurd. The two paragraphs of the decision in issue are at best unclear. The Tribunal had, earlier in its reasons, rejected critical elements of the applicants’ claims and had concluded that neither applicant was of adverse interest to the Fijian authorities. Viewed in this light, it is plausible that what the Tribunal was attempting to say in the last sentence of [49] was that, on the evidence before it, the Tribunal was not satisfied that the photograph has or could come to the adverse attention of the Fijian authorities. Further, at [53] the Tribunal was attempting to say that the publication of the photograph of the second applicant on the internet would not and could not bring the applicants to the adverse attention of the Fijian authorities. The evidence supporting those propositions was the evidence presented by the applicants themselves, together with country information. The conclusions reached by the Tribunal in relation to the publication on the internet of the photograph of the second applicant was, as somewhat generously reframed by me, open to the Tribunal on that evidence.

Conclusion

The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision therefore 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-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 6 May 2016