SZTIM v Minister for Immigration

[2016] FCCA 2124

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2124

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether it was relevant to the review for the Tribunal to ask the applicant questions of the applicant’s knowledge of the grounds on which another person claimed protection – whether the Tribunal asked such questions for the purpose of considering such other person’s application for review – whether the Tribunal acted unreasonably in making an adverse credibility finding partly on the basis of the manner in which the applicant answered questions about the other person’s application for review – whether the Tribunal breached s.429 of the Migration Act 1958 (Cth) by asking questions of the applicant about the grounds on which another person applied for protection – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.414, 424A, 425, 425(1), 429

Cases cited:

SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 49; (2006) 229 ALR 423

Applicant: SZTIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2356 of 2013

Judgment of: Judge Manousaridis

Hearing date: 22 July 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

Counsel for the Applicant:	Mr A Silva
Counsel for the Respondents:	Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2356 of 2013

SZTIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue that arises on this application for judicial review is whether, in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), the second respondent (Tribunal) made any jurisdictional error by relying on the manner in which the applicant, a citizen of Fiji, answered questions about her knowledge of why the applicant’s cousin feared returning to Fiji. The Tribunal found the applicant’s response to these questions to be evasive; and it considered that this, together with other matters, raised considerable concerns about the applicant’s credibility as a witness.

2. To appreciate the grounds on which, in these circumstances, the applicant claims the Tribunal made a jurisdictional error, it will be necessary to set out the applicant’s claims for protection, the course of the hearing before the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision not to grant the applicant a Protection visa.

Claims for protection

1. The asserted facts on which the applicant relied for protection are contained in a statutory declaration that formed part of her application for a Protection visa.[1] The applicant claimed she feared harm because of political opinions that would be imputed to her. The claimed fear was based on two distinct sets of facts, one relating to the applicant’s being suspected of having schemed to remove the Fijian Police Commissioner, and the other relating to work she undertook for a non-government organisation (NGO) that involved researching the supply of government services to communities in need.

   [1] CB51-55

Suspected involvement in scheme to remove police commissioner

1. The applicant claimed she worked as a research officer for the Fiji Police Force (FPF) from 2009 until February 2011. Bickering began in relation to the applicant because she was a civilian, and the work she undertook required her to prepare analytical reports of achievements and failures of some directorates. One of the applicant’s reports led to the cancellation of a planned restructure of a unit, and that led to heated arguments between members of that unit and a deputy director who supported the applicant.

2. On 14 May 2010 the applicant was taken by the military police to an army camp where she was questioned about a plot to remove the Police Commissioner. That occurred because the applicant had worked with the then Assistant Commissioner, Mr BD, who had been suspended, and later removed from the FPF.[2] The applicant said she knew nothing about the plot, but one of the officers said she was lying and locked his hands around her neck making it difficult for the applicant to breathe. Another officer threw a bucket of water over the applicant. The applicant was “threatened not to be seen” with Mr BD “ever again”.[3]

   [2] CB52, [8]

   [3] CB52, [9]

3. In late August 2010, senior officers of the police force were removed in response to directives issued by the Prime Minister. In February 2011 two officers told the applicant she was a traitor, and that she would learn her lesson soon. Three days later the applicant became “a victim and found myself removed”.[4]

   [4] CB53, [12]

4. The applicant was confronted at a park by families of disciplined officers “where there were a little exchange of words and pushing and pulling”.[5] Two women pushed the applicant to the ground and beat her with wooden sticks leading to an injury to the applicant’s head. The applicant went to the police to report the women but was informed those women had already filed reports stating the applicant had assaulted them with a stick. The police informed the applicant if she lodged a complaint then they would charge the applicant but if she did not make a complaint they would not proceed with charging her.[6]

   [5] CB53, [13]

   [6] CB53, [13]

5. The applicant also claims she received two telephone calls, the callers saying: “sooner or later [the applicant’s] throat would be slit for [her] treachery”.[7]

   [7] CB53, [14]

Work with NGO

1. The applicant later joined the NGO. The applicant researched the measurement of services provided by the government in the areas of water supply, roads, education, health, and electricity. The aim of the research was to “address the government social accountability to all citizens of Fiji”.[8] The research was also part of addressing human rights.

   [8] CB53, [15]

2. Her work with the NGO involved the applicant meeting with three communities. During those meetings, there were discussions about the objective of the NGO’s research. In one of the meetings the head of the community, Mr D, used strong language and insulted the applicant. The applicant later found out Mr D was related to an officer, Mr Q, in the Fiji Military Police.

3. The applicant continued to work on the project which involved her beginning the questionnaire testing during 21 to 30 November 2011, engaging in further discussions with the three communities “elaborating the lackness of the current governments for the normal communities”, and undertaking proper research interviews. The applicant was later told by her team members that Mr D was asking about her.[9] The army military police arrived at the applicant’s house in February 2012 and took her to the barracks for questioning. The applicant was there subjected to yelling of abusive and offensive language, and pushing. The applicant was branded a troublemaker. The applicant was questioned about her research, and it was suggested she was speaking against the government, and was an agent of the SDL party sowing dissension within the people. The officers slapped the applicant, pushed her against the wall, threatened her to stop what she was doing, and not to release any reports on her findings. The applicant decided to move away from Fiji and applied for a visa to enter Australia.

   [9] CB54, [19]

Hearing before the Tribunal

1. The hearing began with the Tribunal asking the applicant about her migration history in relation to Australia, where she and her family lived in Fiji, and where she lives and works in Australia. The applicant also gave the following evidence:[10]

   [10] Transcript of hearing before Tribunal (Transcript), page 9.1. The transcript is annexed to an affidavit made by the applicant on 22 February 2014.

   TRIBUNAL:When you came to Australia most recently, did you come alone?

   WITNESS:Yes, member.

   TRIBUNAL:You did not come with any other family member or relative?

   WITNESS:No, member. No

2. The applicant was also asked whether she personally knew anyone else who had applied for a protection visa in Australia, to which the applicant answered “no”.[11]

   [11] Transcript, page 11.1

3. Towards the end of the hearing, the Tribunal put to the applicant that the Tribunal had information which indicated the applicant did not travel to Australia on her own, but that she travelled with her cousin. The transcript records the following:[12]

   [12] Transcript, page 40.5

   TRIBUNAL:. . . If I rely on that information, I could draw the conclusion that you are not being forthcoming or entirely honest in some of the evidence that you are giving, which could cause general or broader credibility concerns about the truth of the claims and evidence that you have put forward. You have a right to request additional time to respond, but you are welcome to do so immediately if you wish.

   WITNESS:I apologise, ma’am. My mistake . . .

   . . . .

   TRIBUNAL:So why did you not mention her when I asked who was living in your household in Townsville?

   WITNESS:Sorry, ma’am, that was just my understanding. I thought we were considered separate – separate people. That was just my understanding for that because I’m now in Townsville. . .

4. The Tribunal then asked the applicant questions about whether the applicant’s cousin had applied for protection. It is this part of the hearing on which the applicant particularly relies in the application before me:[13]

   [13] Transcript, pages 40.35-41.30

   TRIBUNAL:You mentioned that you have made separate applications. Has she also applied for applied for a protection visa?

   WITNESS:That’s right, ma’am.

   TRIBUNAL:Do you know what her claims are?

   WITNESS:No.

   TRIBUNAL:You do not know why she fears returning to Fiji?

   WITNESS:No.

   TRIBUNAL:Even though you lived together and came here together?

   WITNESS:That’s right. I haven’t read these submissions or written response.

   TRIBUNAL:No, but have you – I mean, you lived together, you’re cousins, you came here together. Have you mentioned why you are afraid or why she is afraid to return to Fiji?

   WITNESS:We talk about that, why we are afraid. We talk about it and –

   TRIBUNAL:Why has she said she’s afraid?

   WITNESS:I did not really get into – like, we were just having our, our conversation (indistinct) like, to what she applied for – when we applied – like, we applied on different visas, ma’am. Like, we were dealt with separately and to the contents of what she has in the submission, man [sic], honestly – to be honest with you – I don’t really know. I don’t really know.

   TRIBUNAL:Yes, I am not asking about the detail or what she has written, or anything like that, but I mean, it seems clear now that you came to Australia together, you lived together in Townsville. You live and work together in Palm Island. It seems you have had a lot of opportunity to discuss why you ae afraid to return to Fiji, each of you. I am just wondering even if you know the basis gist of why she might be afraid?

   WITNESS:I – honestly, I wouldn’t really understand her details.

Tribunal’s decision

1. The Tribunal found a number of aspects of the applicant’s claims and evidence lacked credibility. On the other hand, the Tribunal found that aspects of the applicant’s claimed circumstances were being consistently given over time and some aspects were supported by reliable sources, including databases maintained by the Department of Immigration and Border Protection, and official markings in the applicant’s passport.

Credibility findings

1. The Tribunal first considered the applicant’s credibility. It referred to the applicant’s having initially given evidence that she had travelled to Australia alone, and then changing her evidence that she had travelled with her cousin, noting that the applicant’s explanation for why she did not mention her cousin did not “overcome the Tribunal’s concerns that she appears to have not been forthcoming or truthful in answering the Tribunal’s questions regarding aspects of her claimed circumstances, which in turn raises concerns about the truthfulness of other aspects of her evidence”.[14] The Tribunal then referred to the applicant’s answers to the Tribunal’s questions about her understanding about why her cousin fears returning to Fiji. The Tribunal said:[15]

   Her response impressed the Tribunal as evasive, comprising: long pauses; she has not read her cousin’s application or claims; and she does not know any detail about why X is seeking Australia’s protection.

   [14] CB142, [11]

   [15] CB142, [11]

2. The Tribunal then made the following credibility finding:[16]

   The Tribunal considers the above to raise significant concerns regarding the applicant’s credibility as a witness and considers it demonstrates a willingness on her part to give incomplete, evasive, misleading and/or false responses to clear and direct questions put to her by the Tribunal.

   [16] CB142, [11]

Claims based on suspected involvement in scheme to remove police commissioner

1. The Tribunal next considers the applicant’s claims based on her suspected involvement in a scheme to remove the Police Commissioner. The Tribunal was satisfied of the following matters:

   a)the applicant has multiple qualifications;

   b)from October 2009 until February 2011 the applicant worked as a research officer for the FPF;

   c)there was much turmoil and structural change occurring in FPF at the time the applicant was employed by the FPF, including the removal of significant senior appointees, and the appointment of senior office holders, and that these changes were being directed largely by the Prime Minister’s Office;[17]

   d)the applicant was one of many employees of the FPF who were questioned by the military in around 2010 concerning a suspected plot by Mr BD and Mr TU to remove the police commissioner;[18] that questioning, however, was “incidental to the case which was pending against” Mr BD and Mr TU;[19]

   e)the public prosecutor had dropped charges against Mr BD and Mr TU, and they were subsequently dismissed from their positions;[20]

   f)the applicant experienced the verbal abuse she claimed to have experienced, she had received two threatening calls, and she was involved in the altercation at the park;[21]

   g)the difficulties the applicant encountered with the FPF during October 2009 to February 2011 appear to have ceased when she ceased her employment with the FPF, and appear to have been directly tied to the specific unsettling dynamics and conflicts within the FPF at that time;[22]

   h)the applicant does not appear to have received any threatening telephone calls after April 2010, had no further encounters with the women who had pushed and beaten the applicant, and the applicant had continued to live at police accommodation until February 2011 without experiencing any further harm;[23] and

   i)the applicant was employed by the FPF on a fixed contract that came to an end in February 2011, and that the applicant’s contract was not renewed because the services in the specific role she occupied were no longer required.[24]

   [17] CB144, [18]

   [18] CB144, [19]

   [19] CB145, [19]

   [20] CB145, [20]

   [21] CB146, [24]

   [22] CB145, [21]

   [23] CB145, [21]

   [24] CB145, [22]

2. The Tribunal concluded, however, as follows:[25]

   [W]hile the Tribunal is satisfied that the applicant experienced verbal abuse, two phone threats, a verbal altercation which became physical during a rugby match and questioning at the [barracks] in May 2010, the Tribunal considers that treatment to have been directly related to her work at the time and is not satisfied that those incidents or her work at the FPF or her claimed perceived involvement in the plot to remove Mr [T] as Police Commissioner have given her an on-going profile which gives rise to a real chance of serious harm as contemplated by section 91R(1)(b) or 91R(2) of the Act, in Fiji in the reasonably foreseeable future, or a real risk of significant harm as contemplated by section 36(2A) of the Act, for any reason.

   [25] CB146, [24]

Claims based on work with NGO

1. The Tribunal was satisfied the applicant was employed by the NGO from June 2011 until February 2012 in the capacity in which the applicant claims she was employed;[26] and that the NGO worked and continues to work in consultation with the Fijian government to identify areas of service need with a view to directing government services to identified areas of need.[27] The Tribunal, however, was not satisfied Mr D or Mr Q or the military have any adverse interest in the applicant or any intention to harm her, or that the military approached the applicant’s home in 2012. The Tribunal relied on the following matters:

   a)A letter from the NGO the applicant provided to the Tribunal, together with independent sources excerpted in the delegate’s decision, indicated the NGO worked and continues to work in consultation and collaboratively with the Fijian Government to identify areas of service need with a view to directing government services to identified areas of need.[28]

   b)Independent sources indicated that Police Commissioner Ioanne Naivalarua has encouraged NGOs and other groups to identify ways the police could better serve the community. That suggested the military would not take an adverse interest in the applicant because of the work the applicant performed for the NGO.[29]

   c)The Tribunal had located a job advertisement which the NGO appeared to seek a candidate to continue the work the applicant had started. [30] The applicant accepted that the position described in the advertisement sounded like the position she occupied with the NGO.[31]

   d)The applicant had no dealings with Mr D before or after the meeting in which the applicant claimed Mr D used strong language and insulted the applicant, and she could not identify any specific issue that may have motivated Mr D to use his claimed relationship with Mr Q to have the applicant detained and beaten on 2 February 2012.[32] Nor could the applicant identify any matters on the basis of which the military could have accused her of supporting the SDL party.[33]

   e)The applicant’s evidence in totality did not satisfy the Tribunal the applicant has or had any profile as a critic of the military regime or as a supporter of the SDL party.[34]

   [26] CB146, [25]

   [27] CB146, [26]

   [28] CB146, [26]

   [29] CB146-147, [27]

   [30] CB147, [28]

   [31] CB147, [29]

   [32] CB148, [31]

   [33] CB148, [31]

   [34] CB148, [31]

2. The Tribunal concluded:[35]

   Based on all the evidence in its totality and cumulatively, and considering the cumulative concerns identified in the considerations above, the Tribunal is not satisfied that a person named [Mr D] or any other person with connections with the military has labelled the applicant a government critic or supporter of the SDL, or otherwise singled her out for harm as claimed. The Tribunal is also not satisfied that the applicant was taken to the [barracks] in February 2012 or that she has been targeted for adverse attention, treatment or any form of harm by the military regime or any of its agents since she was questioned at the [barracks] in May 2010, some two years prior to her departure from Fiji.

   [35] CB148, [32]

Grounds of Review

1. The applicant’s amended application contains two ground grounds of review.

   Ground 1 - Credibility based on irrelevant matter

2. The first ground of review is as follows:

   The Tribunal made jurisdictional error by (a) basing overall credibility finding on an irrelevant matter (b) denying procedural fairness to the applicant

   Particulars

   (a)In [11] of its decision at CB 142 the Tribunal considered the applicant’s knowledge or otherwise of applicant’s cousin’s protection visa application as relevant in the overall credibility assessment of the applicant. See also Transcript Pg 41 ln9 to Pg 42 ln9. The applicant’s cousin’s protection visa application has nothing to do with the applicant’s protection visa application and it was irrelevant what the basis of the applicant’s cousin’s protection visa application was and the knowledge or otherwise of the applicant about it.

   (b)The Tribunal subjected the applicant to questioning about the basis of the applicant’s cousin’s protection visa. This procedure was unfair because the applicant’s should not have been subject to this questioning, the Tribunal was required to inquire into the applicant’s case not the applicant’s cousin’s case.

1. Counsel for the applicant submitted that the Tribunal’s question about the applicant’s knowledge of the grounds on which her cousin claimed she feared harm in Fiji was irrelevant to the application for review. Counsel also submitted that the only plausible explanation for the Tribunal’s asking the applicant these questions was a desire to obtain information in relation to the applicant’s cousin’s application for protection which was being considered by the same Tribunal member. Counsel submitted that by asking questions on an irrelevant matter, the Tribunal made a number of jurisdictional errors: the Tribunal took into account irrelevant considerations, and it failed to comply with s.424A, s.425, and s.414 of the Migration Act 1958 (Cth) (Act). Counsel for the Minister, on the other hand, submitted it cannot be assumed the Tribunal asked the applicant questions about her cousin’s reason for fearing persecution in Fiji to prepare for its hearing of the cousin’s case. Counsel submitted the Tribunal, being in possession of the applicant’s tourist visa, was entitled to question the applicant about her applying for the visa and travelling with her cousin.

2. The difficulty with accepting the applicant’s submission that the Tribunal’s questions about the applicant’s knowledge of her cousin’s application for a Protection visa was irrelevant is that the Tribunal’s questioning of the applicant on that topic stopped at the point when the applicant said she did not know the grounds on which her cousin feared persecution in Fiji. In those circumstances, it is not possible to say what the Tribunal would have done had the applicant answered she did have knowledge of the grounds on which her cousin claimed to fear persecution in Fiji. It is more than conceivable, for example, that, had the applicant answered she did know what her cousin claimed in her application for protection, that may have suggested to the Tribunal that the applicant and her cousin had entered into a scheme in Fiji pursuant to which they would both seek to apply for a Protection visa in Australia in circumstances where neither of them had any legitimate grounds for claiming protection, and the Tribunal may have asked further questions about that. It would have been reasonably open to the Tribunal to explore whether the applicant and her cousin had entered into such a scheme because that would have been relevant to the assessment of the applicant’s credibility. I do not, therefore, accept the applicant’s submission that it was irrelevant for the Tribunal to ask questions about the applicant’s knowledge of the grounds on which her cousin claimed she feared persecution in Fiji . Nor do I accept that the Tribunal asked the questions for the purpose of its review of the application made by the applicant’s cousin.

3. Even if, however, the questions the Tribunal asked of the applicant were irrelevant, the Tribunal did not commit any jurisdictional error. The only relevance to the decision the Tribunal made of the applicant’s answers to the Tribunal’s questions about her cousin’s application for protection related to the manner in which the applicant answered the questions; the Tribunal found the applicant to be evasive in giving the answers. The Tribunal found the applicant’s evasiveness, together with the applicant’s having given incomplete and misleading or false responses to the Tribunal, gave rise to concerns about the applicant’s credibility. That does not disclose any breach by the Tribunal of s.424A of the Act; the manner in which the applicant answered the Tribunal’s questions, and the Tribunal’s conclusion that the applicant was evasive, was not “information” within the meaning of s.424A of the Act. Nor did the Tribunal, by relying on the manner in which the applicant answered the questions, fail to provide the applicant with a hearing under s.425(1) of the Act. The Tribunal was not required to give the applicant notice of its intention to rely on the manner in which the applicant gave evidence as part of the reason for which it might not accept the applicant was credible. Finally, the Tribunal’s questioning of the applicant about her knowledge of the grounds on which her cousin feared persecution did not mean the Tribunal did not undertake the review required by s.414 of the Act. I am satisfied the Tribunal did review the applicant’s claims as it was required to do under s.414 of the Act.

4. I also do not accept that the Tribunal’s questioning of the applicant about her knowledge of the grounds on which the applicant’s cousin claimed she feared persecution in Fiji was unfair. The only ground on which the applicant submits this constituted unfairness is that the only application for review that was before the Tribunal was that made by the applicant, and that the Tribunal’s questions cold not have been relevant to that review. I do not accept this submission. First, as I have already found, I do not accept the Tribunal’s questions of the applicant on this topic were irrelevant. Second, even if irrelevant, there was nothing unfair about the Tribunal’s asking the questions it did. There is no suggestion in the evidence that the applicant did not understand the questions. The transcript shows she did understand the questions.

5. For these reasons, ground 1 fails.

Ground 2 - Unreasonableness

1. The second ground of review is as follows:

   The Tribunal was unreasonable in its negative credibility finding based on the applicant’s knowledge or otherwise of the basis of her cousin’s protection visa application.

   Particulars

   No reasonable decision maker would have inquired from the applicant about the basis of her cousin’s protection visa application as protection visa applications involve very personal and confidential matters. Further no reasonable decision maker would have made adverse credibility finding based on the applicant’s response to the questions about her knowledge of the basis of her cousin’s protection visa application.

2. On its face, this ground claims the Tribunal acted unreasonably because it made a credibility finding adverse to the applicant based on the applicant’s “knowledge or otherwise” of the grounds on which the applicant’s cousin applied for a Protection visa.

3. The Tribunal made no credibility finding adverse to the applicant based on the applicant’s knowledge or lack of knowledge of the grounds on which the applicant’s cousin applied for a Protection visa. As I have already noted, what the Tribunal relied on was the manner in which the applicant answered the Tribunal’s question about her knowledge of the grounds on which the applicant’s cousin applied for a Protection visa; the Tribunal found the applicant’s answers to be evasive. There is nothing in the evidence before me that suggests it was not reasonably open to the Tribunal to find that the applicant’s answers were evasive. And it cannot be said that a decision-maker’s perception of evasiveness, at least if the perception is not found to have been unreasonably based, is irrelevant to the assessment of a person’s credibility.

4. In oral submissions, counsel for the applicant relied on a ground that is not contained in the application, nor referred to in his written submissions. Counsel submitted that, by asking the applicant questions about her cousin’s application, the Tribunal breached s.429 of the Act which provides that the “hearing of an application for review by the Tribunal must be in private”. Counsel relied on the following passage from SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs:[36]

   It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their cases to the Tribunal.

   [36] [2006] HCA 49; (2006) 229 ALR 423 at [25]

5. Counsel submitted that the applicant, when confronted with questions about her cousin’s application for protection, felt inhibited in answering questions about her cousin because, had she answered and her answers were used by the Tribunal in relation the applicant’s cousin’s application, this may have led to the cousin discovering the applicant had given information to the Tribunal, and this might give rise to adverse repercussions on the applicant. As I understood counsel for the applicant, it is this inhibition that explains, or at least may explain, the manner in which the applicant answered the questions about her cousin’s application. Counsel submits that the Tribunal’s asking questions in these circumstances was contrary to s.429 of the Act because it potentially exposed the applicant to reprisal by her cousin.

6. These submissions rely, at least in part, on a factual premise, namely, that the applicant felt, or may have felt, inhibited in answering the Tribunal’s questions about her cousin. There is, however, no evidence to support that premise. Assuming it was relevant to do so, it was open to the applicant to put on evidence in the proceedings before me about the manner in which she answered the Tribunal’s evidence and to explain why she gave evidence in the manner she did. The applicant did not put on such evidence. This part of the applicant’s case, therefore, fails to the extent it relies on the truth of the applicant’s having been inhibited in answering the Tribunal’s questions.

7. I note that, in any event, the assumed factual premise may not sit easily with the evidence that is before me. If the applicant’s evidence before the Tribunal that she did not know the grounds on which her cousin feared persecution in Fiji was truthful, the applicant could not reasonably have felt any apprehension about any reprisals from her cousin, because there would have been nothing in the applicant’s evidence on which the Tribunal could have relied when considering the applicant’s cousin’s case. It is unnecessary, however, for me to make any finding about this.

8. Counsel’s submissions rely on another assumption; and that is that the Tribunal intended to use the evidence the applicant would have given in answer to the Tribunal’s questions for the purposes of its review of the applicant’s cousin’s application for review. I have already concluded I do not accept the Tribunal’s asked questions about the applicant’s cousin’s application with that intention in mind.

9. For these reasons, ground 2 also fails.

Disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 19 August 2016