SZQVK v Minister for Immigration - [2012] FMCA 474

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQVK v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 474

MIGRATION – RRT decision – Fijian applicant claiming political discrimination – procedural fairness – suggestion by Tribunal that it would make inquiry – later decision not to make inquiry – no practical injustice shown from failure to inform applicant of procedural decision – Tribunal’s consideration of reasons for non‑renewal of employment in government agency – all integers of refugee claims were addressed – no jurisdictional error found – application dismissed.

Constitution, s.75(v)
Migration Act 1958 (Cth), ss.425, 425(1), 430

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Applicant:

SZQVK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2570 of 2011

Judgment of:

Smith FM

Hearing date:

29 May 2012

Delivered at:

Sydney

Delivered on:

29 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr A Silva

Solicitors for the Applicant:

Silva Solicitors

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2570 of 2011

SZQVK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a tourist visa in January 2010, and on 2 February 2010 she applied for a protection visa. She appears not to have been assisted to make the application, but explained in the application form her reasons for fearing persecution if she returned to her country of nationality, Fiji.
She expressed a general concern about the political atmosphere in Fiji, and the difficulty of making a career there without connections with the regime in power. She also suggested that she was known to have had “ties to Democratic protest groups when I was in University”, and suggested that this would result in her being questioned, particularly after she returned from a period in Australia. She also suggested:
I will be going back to a place of hopelessness, where finding a job is incredibly hard, as at this moment only people with connection to the Bainimarama regime and the military get good jobs are given low interest loans, and many other benefits which the other common people don’t have access to.
Her claims of involvement with a democracy group at university were explained further at an interview with an officer of the Department, which the applicant attended on 1 April 2010. In this she referred to attending a protest demonstration at around the time of the last coup in 2006.
The delegate made a decision on 31 May 2010 to refuse the visa application. The delegate said that he was not satisfied that the applicant’s political views and activities would draw the adverse attention of the Fijian authorities on return to Fiji. The delegate noted that the applicant had fears for her employment prospects, and “at interview, she indicated that her political profile has made it difficult for her to find employment”. However, the delegate said:
However, in light of my assessment above, I find that if the applicant returned to Fiji and had difficulty in finding employment, this would not be for a reason related to the United Nations Refugee Convention.

The Tribunal’s hearing

The applicant appealed to the Tribunal, and was unrepresented there. She presented written statements to the Tribunal, and attended a hearing on 12 August 2010. The transcript of the hearing is in evidence, and parts of it provide the foundation of the applicant’s present contention of denial of procedural fairness.
In her written statements, she referred to working for a Fijian government agency after obtaining a degree, and claimed that her work contract was not renewed because she was known to have warned a relation that she was under investigation by the military. This claim was also raised by the applicant at the hearing she attended on 12 August 2010.
The applicant explained that her period of employment with the government agency was an internship which “was for three months normally and they renewed every - after every few months”. The applicant agreed with the Tribunal member’s comment that “is it fair for me to say you were lucky to have it renewed three times? That was a good thing for you?” (see transcript page 16). However, the applicant complained that other people had obtained longer renewals of their training periods. Later at the hearing, the applicant recounted events in which a member of the regime commented upon a relative of the applicant being investigated and fleeing to New Zealand. The circumstances of that incident were narrated, and the Tribunal member put to the applicant: “so what do you think that the reason for your not getting another renewal was?”, to which the applicant responded: “because I may have talked to my [relation] about what that man told me”. The applicant did not point to any other reason why she thought the non‑renewal of her employment was relevant to her refugee claims.
Also discussed at the hearing were the applicant’s activities at university in relation to the democracy group. In the course of this, she referred to a person, whom I shall call P, who was the convenor of the group and had continued to maintain at least one internet site. The applicant referred to some contacts with P, and said: “I know him from uni”. At the end of the hearing, the Tribunal member referred to P, and the applicant agreed that if he were contacted, “he would know” her, and would confirm that she had been active and “that I am active on – maybe online”. The applicant answered “no” to the question: “if I’m able to make contact with him safely, I would not – obviously, I would not send any emails or telephone him in Fiji, but if the Tribunal is able to make contact with him safely, would you have any objections to me asking him about you?” At the end of this exchange, the Tribunal said:
MEMBER: Is there anything else we could ask him to confirm what you’re telling us?
APPLICANT: No.
MEMBER: Okay then. Look I’m not sure, I don’t know where he is at the moment. Just hold one sec, I’d just like to check something. I’m just checking my email at the moment. Okay, we’ll leave it at that. Have you given all your evidence, Ms [Applicant]?
APPLICANT: Mm’hm.
From this and other parts of the transcript, it appears that someone in the Tribunal member’s office was endeavouring to see whether he could be contacted during the hearing, but had found this not to be possible. The hearing concluded with the following exchanges:
MEMBER: Look, I’ve just spoken with someone who knows - who is one of our researchers, and that person says that he is contactable by email, because he’s obviously running the [group]. He’s the contact person. So look, I might see whether we are able to make contact. I will not publish your name in an email to Fiji.
APPLICANT: Right.
MEMBER: I don’t want anyone reading that; then they might know, well, why you are here. If on the other hand we are able to ask him to telephone us or if it turns out that he’s still [overseas] or he’s maybe visiting Australia or something, then it’s very easy for us to talk to him and I can just say, “Look, confirm please what [the applicant]-” and to ask him for his opinion on whether you might be at any risk if you go back to Fiji. As I’ve said, I think I’ve explained to you my concerns about your case, but I will look carefully at all of the things that you have said and the material you’ve given and I’ll make a decision once I have all of the material that I need. All right.
APPLICANT: Right.
MEMBER: I’ll call the hearing to a close now. Could we please close up for today in hearing room 1? Thank you. Now, the issue that I will then make some further inquiries about is whether or not I am able to get confirmation from Mr P… about your profile and whether you might be at risk because of any profile. I’m not sure that inquiry will - that we will be able to contact him or he’ll be able to give us any useful information, but if he is able to give us any information I will let you know, and then we’ll have an opportunity - I will probably write to you to let you know of what he has said.
APPLICANT: Okay.
MEMBER: All right. Thank you, then. We’ll close the hearing for today. If you have any further information that you would like me to have, can you please get that to me as quickly as possible, because I can move to a decision rather quickly on your case.
APPLICANT: Okay.
MEMBER: Thank you. Thank you both for coming today, and we will be in touch very soon.
HEARING OFFICER: The hearing has closed at 11.59, and the member is now leaving the room.
The Tribunal member did not make a decision until the following year. There is no direct evidence before me of any further contacts being made between the Tribunal and the applicant, but there is at least one suggestion in the Tribunal’s decision that the Tribunal made one further contact with the applicant by telephone to confirm a matter, and possibly made another attempt unsuccessfully to contact the applicant. These references have not been treated by the parties as having relevance to the grounds of review.

The Tribunal’s decision

The Tribunal made its decision on 13 October 2011, and affirmed the delegate’s decision. In its statement of reasons, it recited the applicant’s evidence in her visa application and written submissions and at the hearing. It referred to the applicant’s evidence of knowing P (see paragraph 38), and also to the exchanges at the end of the hearing, and to a subsequent decision not to contact him:
55.The applicant said that she had no objections to the Tribunal making enquiries about her, as [the applicant], to Mr P. She thought that he might remember her having visited his home in late 2008, but was unsure. The Tribunal advised that it may make further enquiries if it thought it necessary and safe to do so. It has decided not to initiate any further enquiries.
56.The applicant confirmed that she had presented all her claims and evidence, and said that it was unnecessary for the Tribunal to take evidence from her aunt, who was there only as a support person.
57.The Tribunal has since located an item at The Fiji Times On‑Line, edition of [date] (see below). The applicant said, in response to the Tribunal’s recent telephone enquiry, that she did not have any further updates or submissions. The Tribunal has decided to proceed to a decision on the basis of the available material.
The Tribunal referred to some general background concerning Fiji, and also to its becoming aware of The Fiji Times On‑Line item which corroborated the applicant’s claim to have participated in a protest demonstration. The Tribunal indicated that it had also confirmed the applicant’s description of the agency at which she had held her internship.
In its “Findings and Reasons”, the Tribunal accepted the applicant’s claims of her activities at university and with the democracy group. It said:
79.The Tribunal accepts that the applicant was a person of interest to the Fijian authorities in late 2006 and during 2007 and 2008, as a student activist - due to her brief detention (including any press coverage that this may have received at the time); her association with the [group], including (very limited contact with) P; and her contacts with members of [a named] family. …
However, the Tribunal also concluded: “it finds that any such interest had already dissipated by mid‑2008, when the applicant finished her studies and started working”.
The Tribunal explained that finding particularly by a reference to the fact that she had gained employment in an internship with the government agency. The Tribunal said that this “is a strong indicator that the authorities did not view her as a regime critic at that time, irrespective of any past encounters that she may have had with them. The applicant gave some reasons why this was not the correct conclusion (see below), but ultimately agreed with this, shifting her focus instead to other claims”. The Tribunal also found that “her ability to obtain an internship, is in the Tribunal’s view, strong evidence that the Fijian authorities had no concerns at all about her political profile or her family and social connections”.
The Tribunal dealt with the applicant’s claim that the reason for the termination of the internship after two renewals was the result of her links with her relative in New Zealand, and her being known to have warned the relative about an investigation. The Tribunal did not believe the truth of the events claimed, and identified defects in the applicant’s evidence which explained its conclusion. The Tribunal then said:
81.…
§Given the Tribunal’s finding that the internship was not cut short for reasons linked with the applicant’s [relative], it is unnecessary to determine whether it involved serious harm amounting to persecution, or whether it was for a Convention reason.
The Tribunal considered the family circumstances of the applicant, and her combination of circumstances in a manner which I do not need to describe. It also considered her evidence about her political opinions and her occasional expression of them, but it concluded that they would not cause her to be “a person of ongoing adverse interest to the Fijian authorities”. The Tribunal assessed the applicant’s likely conduct in the future if she returned to Fiji and found that:
84.…
§In light of the applicant’s conduct in both Fiji and Australia, the Tribunal finds that her future conduct will focus on her employment, particularly in IT and web design, and other personal interests. It accepts that she may continue to voice criticism of the government with friends and on‑line, but in its view, she no longer has the motivation and contacts to engage in the kind of protests or activism that she did as a student. It follows that she will also not need to refrain from them in order to avoid persecution.
The Tribunal also said:
84.…
§The applicant has claimed that she faces poor employment prospects in Fiji, as the military government favours its supporters and their families. The Tribunal accepts that Fiji’s economy is in poor shape, that unemployment is high and that the military regime’s reported nepotism has made it more difficult for other people to find work. However, the applicant obtained an internship and later a placement with a government agency some years after the December 2006 coup, and the Tribunal finds that there is no real chance of her facing job discrimination amounting to persecution in the reasonably foreseeable future (such as a denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist: s.91R(2)(f)), for any Convention reason.
85.The Tribunal concludes on the basis of the above findings that there is no real chance of the applicant facing serious harm for reason of her political opinion, actual or imputed, or any other Convention reason. It is therefore not satisfied that she has a well‑founded fear of Convention‑related persecution, now or in the reasonably foreseeable future, if she returns to Fiji.

Ground 1

The applicant now seeks judicial review of the Tribunal’s decision and asks the Court to make orders that the matter be remitted for further considering by the Tribunal. I have the power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa or for any other permission to stay in Australia.
The applicant’s case has been presented by a solicitor, who today relied upon two grounds in an amended application:
(1)The Tribunal made jurisdictional error since it failed to meet the legitimate expectation it created in the applicant during the hearing.
(2)The Tribunal made jurisdictional error in that it did not consider an issue it was bound to consider.
The particulars to Ground 1 and the applicant’s written submission refer to the exchanges between the Tribunal member and the applicant at the end of the hearing, in which the Tribunal member indicated that he was considering making inquiries to obtain confirmation from P about the applicant’s “profile and whether you might be at risk because of any profile”. It was submitted that “the applicant did not hear from the Tribunal after the hearing about this and the decision of the Tribunal does not say anything about that inquiry either”.
The written submission was:
7.Validation by P whom the Tribunal appears to consider as a high profile dissident of the regime about the danger to the applicant would have enhanced her position in the eyes of the Tribunal and which would have made her case stronger.
8.Thus the Tribunal’s statement about its interest to contact P had generated hope on her part. Previously she did not know that she could ask the Tribunal to contact P to validate her vulnerability and her contribution to the cause.
9.As seen from the Transcript, during the hearing the Tribunal gave significance to the issue of the applicant’s connection to P, who is the leader of [a group] in Fiji, in the sense that it wanted to inquire from P about whether the applicant will be at risk if she returned.
In support of the submission that there was a failure of procedural fairness in a manner contrary to the provisions of the Migration Act 1958 (Cth), I was taken to two authorities in the High Court which have considered statements by decision‑makers which foreshadowed their intended procedures, where the procedures were not subsequently followed, and where the applicant was not warned that the decision‑maker had decided not to follow them.
The Minister accepted, for the purpose of his submissions in the present case, that the principles emerging from these authorities were applicable to the present proceedings of the Tribunal, by implication from the obligations on the Tribunal to afford applicants a hearing under s.425(1) of the Migration Act before completing its review.
In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam’s Case”), the High Court refused relief under s.75(v) of the Constitution, to an applicant who submitted that there was a failure of procedural fairness by reason of a failure by officers of the Department of Immigration to follow a procedure which had been foreshadowed in a letter to the applicant. In the letter the applicant was asked to provide contact details for carers of children of the applicant. The letter had said:
The Department wishes to contact them in order to assess your relationship with the children and the possible effects on them of a decision to cancel your visa.
The reasons for the Department subsequently deciding not to contact the carers were speculative, and as Gleeson J said: “it is neither possible nor necessary to make any finding about the state of mind” of the decision‑maker. His Honour referred to authorities concerning a denial of procedural fairness, when a procedure which had been held out to an applicant has not been followed. He noted that it was not in dispute that the Department was obliged to extend procedural fairness to the applicant, and he continued:
34… And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision‑making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision‑maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
(citations omitted)

His Honour said:
36The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision‑making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision‑maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision‑maker, or otherwise suffered any detriment.
37A common form of detriment suffered where a decision‑maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney‑General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision‑maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
38No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children.
(citations omitted)
The reasoning of the other justices in the High Court was similar, although differently nuanced. McHugh and Gummow JJ assumed that the visa applicant had an expectation that the Department would contact the carers, but said:
106The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice.
Hayne J was of similar opinion:
122It may be that, for the reasons given by McHugh and Gummow JJ in this matter, Teoh cannot stand with the Court’s earlier decision in Haoucher v Minister for Immigration and Ethnic Affairs. It may also be that further consideration may have to be given to what was said in Teoh about the consequences which follow for domestic administrative decision‑making from the ratification (but not enactment) of an international instrument. Those questions need not be answered in this case. For present purposes, it is enough to say that even if the Department’s letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the applicant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department’s letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant’s visa would have on his children. Unlike Teoh, this was not a case where the course of decision‑making could be said to have diverged from any announced policy to be taken to account in making the relevant decision.
Callinan J said:
149I return now to the facts of this case. In my opinion, what is fatal to the applicant’s claim here is that he was unable to demonstrate that there was any material that he could have put before the respondent which was either not already in the respondent’s hands, or which might have influenced the respondent to decide his case differently. That he might have liked to have had a further opportunity to repeat what he had already said, or to advance the same argument differently or more emphatically is not to the point and cannot avail him.
In the present case, I am left in the same position reached by the High Court in Lam’s Case. No evidence has been submitted from the applicant as to her state of mind when agreeing that the Tribunal member might contact P to confirm her claimed political profile and to get his opinion about whether she might be at risk because of that profile. There is no evidence that she relied upon the Tribunal’s statements, so as to forego herself obtaining evidence from P and presenting it in support of her case. There is no evidence that in fact he would have supported her case in any material fashion. The applicant certainly had more than enough time subsequent to the hearing and before the decision herself to obtain and present any such evidence if she felt that it was relevant. There is no evidence which establishes to my satisfaction that she was disadvantaged in any respect by the procedure followed by the Tribunal.
In fact, the Tribunal decided that it could accept her history of political activity without obtaining corroboration from P. Importantly, it obtained corroboration from a newspaper item, and discussed this with the applicant on the telephone (compare paragraphs 57 and 65 of the reasons).
It is clear that the Tribunal did decide not to contact P, since it said so at paragraph 55 of its reasons. It was not obliged to include in its statement or reasons an explanation for why it did not follow that procedure. In particular, s.430 of the Migration Act did not require this, and as Gummow J said in Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [70], in the absence of an obligation, an inference that relevant matters were not considered “should not be drawn lightly”.
There are many reasons why the Tribunal might have decided not to make further efforts to contact P. It may well be, in the situation where the applicant had not herself invited the Tribunal to obtain any further evidence from P, and had not indicated any evidence which she expected P to give which would advance her case beyond the point at which it was ultimately accepted by the Tribunal, that the Tribunal then perceived that it was under no duty to make further inquiries, and that it would be unnecessary and unwise for it to do so.
Whatever the reason, I am not persuaded that the decision of the Tribunal member not to proceed with the inquiries which were foreshadowed at the Tribunal hearing gave rise to practical injustice or procedural unfairness in the circumstances shown in the evidence before me. There is, in my opinion, no evidence allowing me to conclude that the Tribunal’s discretions in relation to this procedure miscarried in law.
I arrive at that conclusion giving the applicant’s arguments the benefit of doubts whether the Tribunal’s statements at the hearing about making inquiries reveal or might convey a firm intention to make the inquiry. Another interpretation is that the statements amounted to no more than that the Tribunal might make the inquiry, depending upon its further consideration of the matter. Its language contains a degree of uncertainty in this respect, and I note that there is no evidence that the applicant sought to obtain a more definite commitment by the Tribunal to make an inquiry.
At the end of the day, on the evidence before me, I am not satisfied that the applicant unfairly lost any opportunity to advance her case before the Tribunal, whether at the hearing or subsequently during the long day after the hearing. In particular, I am not persuaded that she unfairly lost an opportunity to present favourable evidence from P, which might have altered the Tribunal’s ultimate assessment of the risks she might face if she returned to Fiji. Nor am I persuaded that she suffered any other disadvantage as a result of the procedures of the Tribunal. I would therefore follow the same reasoning which resulted in the rejection of the case presented to the High Court in Lam’s Case.
A different species of error was addressed by the High Court in the second case which was also cited before me, Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 (“NAFF”). In this case, the Tribunal made statements at the end of a hearing which referred to inconsistency in the claimant’s evidence with regard to dates and number of detentions, and said: “I will have to write to you about those”. The Tribunal then foreshadowed writing a letter inviting comments and allowing an opportunity to give more information on those matters. In fact, there was no such communication from the Tribunal before it made a decision rejecting the refugee claims, and the Tribunal’s statement of reasons made no mention of the statements it had made at the hearing, and did not explain why it had not invited further evidence on the matters of concern.
The plurality judgment of McHugh, Gummow, Callinan and Heydon JJ, drew an inference from the failure of the Tribunal member to send the promised questions to the applicant, and to refer to this procedure in its statement of reasons, that “she had forgotten or overlooked the fact that she had made the promise to send them”. This finding provides the crux of their reasoning. Their Honours said:
32It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant’s statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the fact that she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.
Their Honours also dealt with an argument by the Minister that there was no material breach of procedural fairness or breach of s.425, because of the absence of evidence that the topics of the foreshadowed letter were crucial to the Tribunal’s decision. However, their Honours thought that the fact that the Tribunal had suggested that the further inquiry would be needed was enough, since:
43The Tribunal member at one important stage had the impression that there might be a benefit for the appellant in the review as a whole in having a further opportunity to answer her questions in writing on the subject of detention; she never explained why that impression was wrong or whether it had changed; it is thus a likely inference that the impression was sound. Hence the appellant’s deprivation by the Tribunal member of that opportunity is a breach of procedural fairness going to jurisdiction.
The present applicant’s solicitor sought to gain support from NAFF, and submitted that it was indistinguishable from the present case. However, I do not accept this submission. NAFF is clearly distinguishable, because the present Tribunal undoubtedly did apply its mind to whether or not it should proceed with the procedure of making further inquires with P, and it decided not to do so before completing its review.
The absence of evidence explaining why it so decided does not provide a relevant reason for applying NAFF. This is because the outcome in NAFF is not based on a duty to complete a foreshadowed procedure, but upon a duty not to reach a decision which forgot the previous impression that further evidence was needed from the applicant. In the present case, there was neither an incomplete review proceeding as was found in NAFF, nor a procedural unfairness because the applicant was denied a completed hearing procedure.
I also accept the submissions of the Minister’s counsel that the subject matter of the foreshadowed procedure in NAFF was of a different nature. In that case, the further areas of inquiry concerned the applicant’s credibility based on matters of discrepancy in the applicant’s own evidence. The applicant was likely to have believed that the hearing would proceed in relation to those matters by way of a written exchange after the conclusion of the oral hearing. In the present case, there was no suggestion from the Tribunal at the end of the hearing that the applicant’s evidence was incomplete, nor that the Tribunal would delay making a decision until she presented further evidence. The only circumstance in which the Tribunal held out that further evidence would be taken, was if it obtained information from P which was required to be put to the applicant for further comment. A denial of procedural fairness would have occurred if the Tribunal had obtained relevant information from P which might have been regarded as adverse to the applicant’s case, but this did not happen.
I am therefore not satisfied that jurisdictional error of the type found in NAFF is evidenced in what happened in the present case.
For all the above reasons, I am not persuaded by the submissions made to me today in support of Ground 1 of the amended application.

Ground 2

The particulars of Ground 2 identified the Tribunal’s statement at the conclusion of its assessment of the reasons for the applicant’s internship not being renewed. In this, it said that “it is unnecessary to determine whether it involved serious harm amounting to persecution, or whether it was for a Convention reason”, beyond rejecting the applicant’s claims that it was related to an investigation of her relative.
It was submitted that the applicant’s refugee claims implicitly left open for determination a claim that the non‑renewal of her internship was related to her own perceived political opinions arising from her own past history of political activity which was accepted by the Tribunal.
The ground invoked well‑known principles of jurisdictional error and denial of procedural fairness which were discussed by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263. In that judgment at [63], their Honours referred to authority establishing that:
… if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
However, their Honours also pointed out at several places that the Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it” (see [60], [62] and [68]).
In the present case, I am not persuaded that anything in the applicant’s evidence, or any consequence of the Tribunal’s findings about the applicant’s evidence, clearly raised the claim which Ground 2 argues was not addressed by the reasons of the Tribunal. As I have narrated above, the applicant sought to explain to the Tribunal the circumstances of the non‑renewal of her internship entirely by reference only to her claim that it was the result of her having warned her relative that she was under investigation, after hearing words spoken by a government official about this. I am unable to detect anywhere in the transcript or other statements of the applicant a claim that the non‑renewal was the result of a perceived political profile on her part, and certainly not such a claim which was articulated or manifested ‘clearly’ on the material.
I do not accept that there was a necessary logical connection between the Tribunal’s finding that at earlier times the applicant had been perceived as hostile to the regime, and the non‑renewal of the applicant’s internship. Rather, an inference of continuity was negated by the Tribunal’s considered finding that the applicant’s gaining of the internship with the government agency showed that, in fact, her earlier political profile had been ‘dissipated’. Once that finding was made, and once the Tribunal rejected the reason for non‑renewal which was expressly articulated by the applicant, then there was no apparent inference that the applicant lost her employment for a Convention reason.
On the bare circumstances of her employment shown in the applicant’s evidence, no such claim appears to me to arise clearly. On the applicant’s evidence, the employment was of a temporary nature of short duration. Her complaint to the Tribunal about the employment not being renewed more than twice, apart from the suggestion that it was a response to the incident involving the applicant’s relative, was that she was disadvantaged in the workplace by reason of the absence of connections with the military government, rather than that there was a positive discrimination for a Convention reason. The Tribunal adequately addressed this claim, it appears to me, at the conclusion of paragraph 84 in the last dot point which I have quoted above.
In my opinion, the Tribunal dealt with all the bases upon which the applicant’s refugee status was required to be addressed in relation to her employment in Fiji, including the cessation of her internship employment with the government agency.
I am therefore not persuaded that Ground 2 is established.
Since neither of the grounds which were argued before me have been made out, I must dismiss the application.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 18 June 2012