FEDERAL COURT OF AUSTRALIA

SZUNF v Minister for Immigration and Border Protection [2018] FCA 220

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 20 September 2017, which dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) given on 14 May 2014. The Tribunal’s decision was to affirm the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of Fiji who arrived in Australia on 11 January 2012 as the holder of a visitor visa. On 6 March 2012, he lodged his application for the visa the subject of this appeal (the visa).

3    The appellant’s claims for protection are conveniently summarised at [8]–[11] of the Tribunal’s Decision Record. The Tribunal’s Decision Record identified an individual who I have anonymised, as the primary judge did, by the name “Mr Vivian” :

8.    The applicant is a 59-year-old man, born in Fiji on 19 September 1953. He is an indigenous Fijian. He is divorced and has one child, a son.

9.    After completing his secondary studies in 1971, the applicant worked for the Ministry of Public works as a technical assistant for approximately 10 years. He then worked as a ship’s captain until early 2003. The applicant studied law between 2004 and 2009. As part of his studies he spent 2006 studying at the University of the South Pacific law school in Vanuatu. He then worked as a legal officer for the Fijian Legal Aid Commission during 2010 and then as a legal officer at a law firm in Suva during 2011.

10.    As a lawyer, the applicant has acted on behalf of a former secretary of the Soqosoqo Duavata Ni Lewenivanua (SDL) party, Mr [Vivian]. Mr [Vivian] was charged with larceny in 2007. He was acquitted at first instance but the Fijian Department of Public Prosecutions appealed that decision. During the pre-trial of the appeal, the applicant claimed he was called by the military and told he should stop representing Mr [Vivian]. The applicant claims he told the caller he would continue to act. A week later he claims he received a second phone call during which he was threatened with death if he did not stop representing Mr [Vivian]. After this he came to Australia. The applicant claims that since he left Fiji colleagues back in Fiji have told him that military personnel have been asking about him because of his connections with Mr [Vivian]. He fears that military will want to harm him because they know he is overseas and “has opened [his] mouth as to what is going on in Fiji”.

11.    The applicant claims he is a strong supporter of the former Qarase government. He claims that a number of his colleagues and close relatives who have stood up for human rights have been taken for interrogation and torture by the military. He fears the same thing will happen to him if he returns to Fiji. He claims that if the military government find out he has sought protection in Australia they will “understand that [he has] opened [his] mouth to the media” and that he will suffer harm as a result.

The Tribunal

4    The appellant appeared before the Tribunal to give evidence and present arguments by way of video-link on 5 June 2013. The Tribunal also received oral evidence from the appellant’s brother and two sisters.

5    The Tribunal had significant concerns about the credibility of many of the appellant’s claims. The Tribunal advised the appellant of that fact. Indeed, on my review of the transcript of the hearing on 5 June 2013, the Tribunal expressed these concerns on a number of occasions. In doing so, the Tribunal put certain information to him. The Tribunal summarised the matter this way:

39.    I advised the applicant that I had a number of concerns about the credibility of many of his claims. I advised the applicant that some of these concerns arose from information that was before me that I was required to put to him in a formal way. I put this information to the applicant under s.424AA of the Act, confirming each time that the applicant understood the information and the relevance of the information. I gave the applicant the opportunity to request an adjournment to consider his response to that information but he elected to respond at the hearing. However, I also gave the applicant a further opportunity to respond to the information in writing after the hearing.

6    On 20 June 2013, the Tribunal received a number of documents from the appellant which were provided to support his protection claims: see [48] of the Decision Record. One of these was a letter dated 4 June 2013 from Mr Vivian. The letter stated that Mr Vivian knew the appellant as a founding member of the SDL Party, and as a personal confidante and ardent supporter who worked tirelessly with Mr Vivian to establish the party’s infrastructure, including during the 2006 election campaign when the appellant organised hecklers for meetings by the Fijian military, and that the appellant represented Mr Vivian in relation to “frivolous criminal charges” even after being threatened at home and confronted publicly.

7    The Tribunal accepted that:

    the appellant is related to Mr Vivian;

    Mr Vivian is a former Secretary of the SDL;

    criminal charges were laid against Mr Vivian in relation to the sale of a motor vehicle;

    those charges have been prosecuted in “the Fijian criminal courts”;

    the appellant trained as a lawyer and was admitted to practice in Fiji in early 2010; and

    the appellant acted on behalf of Mr Vivian at a hearing before the High Court of Fiji in August 2010 in relation to criminal charges laid against Mr Vivian.

8    However, in light of its significant concerns about the appellant’s credibility, the Tribunal did not accept the following matters in relation to the appellant’s claims:

    the appellant is or was ever a member or supporter of the SDL;

    any members of the appellant’s family, other than Mr Vivian, were or are members or supporters of the SDL;

    the appellant provided financial support to the SDL;

    the appellant attended meetings or public gatherings organised by the SDL;

    the appellant attended a meeting or participated in writing a letter about individuals being taken to military camps in 2006;

    the appellant ever publicly or actively spoke on behalf of or otherwise expressed political opinion in support of the SDL and/or the Qarase government or against the current Fijian government, either in Fiji or in Australia;

    other than Mr Vivian, the appellant has any relatives or close friends who have advocated for human rights and been targeted by the Fijian government or military as a result;

    the appellant has provided financial or any other form of support to Mr Qarase in legal proceedings against him;

    the appellant acted on behalf of or otherwise represented Mr Vivian in relation to criminal proceedings against Mr Vivian during 2011 or at any time other than at the hearing before the High Court of Fiji in August 2010; and

    the appellant was threatened, either by telephone or in person, or otherwise subjected to any form of serious or significant harm by the Fijian military or anyone else either because he was acting or had acted on behalf of Mr Vivian, or for any other reason or at any other time.

9    I note, for later reference, the following paragraphs of the Tribunal’s Decision Record.

10    At [66], the Tribunal held:

66    As I have found that the applicant has not been involved with or supported the SDL or otherwise expressed political opinion in support of the SDL and against the current Fijian government, I find that he will not engage in any political activities or seek to express a political opinion in the future. As a result, I do not accept that the applicant faces a real chance of suffering serious harm as a result of an actual political opinion in support of the SDL and against the current Fijian government. I have accepted that the applicant appeared on behalf of Mr [Vivian] before a court in August 2010. However, I do not accept that the applicant did so in order to express a political opinion given that he has not expressed such political opinion at any other time, either in Fiji or Australia.

11    At [68]–[69], the Tribunal held:

68.    As a result, I do not accept that the applicant’s family connection with Mr [Vivian] would result in him being imputed with a political opinion critical of the current Fijian government and military that would result in him facing a real chance of suffering serious harm. I also do not accept that there is a real chance that his having appeared on behalf of Mr [Vivian] before a court in August 2010 in relation to criminal proceedings will result in him being imputed with a political opinion critical of the current Fijian government and military that would result in him facing a real chance of suffering serious harm.

69.    In relation to the applicant’s profile as a lawyer, I note that the country information below at [103 d] refers to reports of Fijian lawyers being detained and questioned by security forces due to the criticism of the interim government’s interference in the judiciary or otherwise critical of the interim government. However, I also note that the country information indicates there were no reports of lawyers representing SDL members being mistreated or harmed by the Fijian authorities since 2009. I have found that the applicant has not criticised the interim government or military in the past. As a result, I am not satisfied that the applicant’s profile as a lawyer, even taking into account that he acted on behalf of Mr [Vivian] before a court in August 2010, will result in him being imputed with the political opinion critical of the current Fijian government and military which would lead him to face a real chance of suffering serious harm.

12    At [73]–[74], the Tribunal held:

73.    However, in light of the country information set out below and my reasoning set out above in relation to the risk of harm to the applicant based on imputed political opinion as a lawyer in Fiji and a family member of Mr [Vivian] as a leader of the SDL, I also do not accept that lawyers in Fiji face a real chance of suffering serious harm because of their membership of that particular social group. I find that only those lawyers in Fiji who are actively critical of the Fijian government or military face a risk of harm and, as I do not accept the applicant has been critical of the Fijian government or military, I do not accept that the applicant faces a real chance of suffering serious harm because of his membership of the particular social group “lawyers in Fiji”.

74.    In light of my assessment of the country information about family members of leaders of the SDL in assessing the risk of harm to the applicant based on an imputed political opinion, I find that the country information does not indicate that being a family member of an SDL leader leads to a real chance of suffering serious harm. As a result, I do not accept that the applicant faces a real chance of serious harm because of his membership of the particular social group comprising “family members of Mr [Vivian]”.

13    In the result, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations and that the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) had been met. Further, the Tribunal was not satisfied that the appellant met the complementary protection criterion under s 36(2)(aa) of the Act.

The Federal Circuit Court

14    The appellant’s application for judicial review contained four grounds. Ground 1 was not pursued. As expressed in the primary judge’s reasons, Grounds 2, 3, and 4 were:

GROUND 2

The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the Applicant’s particular social group; that being indigenous Fijian lawyers who not only belonged to members of the families opposed to the Fijian military regime, but also opposed the military government personally, and a relative of a high profile SDL member. The Tribunal instead simply just generally assessed the Applicant’s political opinion and failed to assess integer / attribute of imputed political opinion of such a particular social group.

Particulars

Instead of looking at the Applicant’s claims under the Applicant’s social group, the Tribunal relied on country information and generalised its decision that “it did not accept that lawyers in Fiji face a real chance of suffering serious harm because of their membership of their social group”. The Applicant is an indigenous Fijian lawyer and an opponent of the Fijian military regime and government.

GROUND 3

The Tribunal committed jurisdictional error by denying the Applicant procedural fairness and thereby breached s.425 of the Act.

Particulars

3.1     The Tribunal stated (CB 166 at [62]) “…the applicant has provided no documents of having acted on behalf of Mr Vivian, at any other time…”.

3.2    The Tribunal at no time put the Applicant on notice that it would reject that the Applicant acted for Mr Vivian (other than once) if the Applicant did not put all documentary evidence before the Tribunal.

3.3    The Tribunal thereby breached s.425 and failed (sic) carry out its duties in accordance with s.414 of the Act.

GROUND 4

The Tribunal committed jurisdictional error by making finding not supported by evidence.

Particulars

4.1    The Tribunal stated (CB 168 at [69];) “…no reports of lawyers representing SDL members being mistreated or harmed…” and at [73].

4.2    The Tribunal found that the Applicant would not be harmed as a lawyer carrying out his practice. The Tribunal erred in its finding in that Applicant apart from being a lawyer representing Mr Vivian (who was a high profile member for the SDL) was acting for high profile family member. The evidence was not before the Tribunal to support the findings it did.

4.3    There was no material to draw inference that the Applicant would not be imputed with the political opinion not “being critical of the Fijian government (CB 169 at [71]).

15    At the hearing before the primary judge, the appellant’s counsel advanced Ground 2 in a particular way. At [33], the primary judge said:

33.    At the hearing this Ground was refined by Mr Kumar, who withdrew the adjective “indigenous”, so that the particular social group which he submitted that the Tribunal had failed to consider was “Fijian lawyers who represented SDL Party executives”, and in this regard Mr Kumar also withdrew [22] of his written Outline of Submissions which had referred to ethnicity.

16    It will be apparent that, in putting the matter this way, the appellant departed from the description of the particular social group identified in Ground 2. The primary judge recorded that counsel then appearing for the appellant conceded that the particular social group asserted was not expressly raised, but nevertheless submitted that it did arise implicitly on the material which was before the Tribunal. The primary judge found that at no point, either before the delegate or the Tribunal, did the appellant claim to be a Fijian lawyer regularly or consistently representing SDL Party executives in legal proceedings in Fiji. Indeed, this was contrary to the evidence he had given in the Tribunal. As the primary judge put it at [38]:

38.    The only legal case ever referred to by the Applicant was the case in Fiji in which he claimed to have appeared for his nephew, Mr Vivian, who he also claimed to have been a former (not a current) secretary / campaign director of the SDL. The Applicant never claimed to have ever provided legal services of any kind to any other member or executive of the SDL, current or non-current. In these circumstances in my view the Tribunal did not fail in its statutory duty to consider the Applicants claims to protection by not considering the particular social group of “Fijian lawyers who represented SDL Party executives”. The Tribunal cannot be legitimately criticised for not considering a particular social group not expressly articulated and of which the Applicant disavowed being a member.

17    The primary judge also noted that, when considering the particular social group of “lawyers in Fiji”, the Tribunal made a finding of generality that subsumed and encompassed the asserted particular social group of “Fijian lawyers who represented SDL Party executives”.

18    The primary judge concluded that Ground 2 did not establish jurisdictional error on the part of the Tribunal.

19    At the hearing before the primary judge, Ground 3 was also advanced on a particular basis. At [42], the primary judge said:

42.    Ground 3 was also refined by Mr Kumar at the hearing so that it is to be understood as asserting that the Tribunal made a different finding from the Delegate but failed to give to the Applicant a sufficient warning of that possible different finding as was required, so it was submitted, by the decision of the High Court of Australia in SZBEL v Minister for Immigration [2006] 228 CLR 152 (SZBEL). Ground 3 in this refined form was put without any reference to documentary evidence.

20    The primary judge noted that the finding about which complaint had been made related to the appellant’s representation as a lawyer for Mr Vivian. In this connection, the appellant claimed that he had represented Mr Vivian on a number of occasions. The Tribunal found that the appellant had only appeared once for Mr Vivian (being an appearance before the High Court of Fiji in August 2010). This was one of the credibility concerns which the Tribunal put to the appellant. The primary judge noted that the appellant was given the opportunity of an adjournment to consider his response to this and other matters and information put to him by the Tribunal, but the appellant chose to respond immediately. The appellant indicated that he had documentary evidence proving that he acted for Mr Vivian. The Tribunal allowed the appellant time to submit these documents: see [5] above.

21    The primary judge found at [51]:

51.    … the Tribunal in its warning to the Applicant at the hearing expressly adverted to and identified its credibility concerns relating to his evidence to the Delegate and his present evidence to the Tribunal concerning the details of the Applicant’s claimed appearances in court for Mr Vivian. It is clear that the Applicant realised that his credibility in this connection was under scrutiny and it was for that reason that he forwarded the documentation concerning court appearances for Mr Vivian to the Tribunal after the hearing had concluded. It was on the basis of the Applicant’s own proffered documentation that the Tribunal came to the factual finding that the Applicant had appeared in court for Mr Vivian, but only in the High Court in August 2010. I do not consider that in so acting the Tribunal failed to accord the Applicant procedural fairness leading to any practical injustice and Ground 3 thus fails.

22    As to Ground 4, the primary judge noted that, according to the submissions that had been made, this ground of review depended on Ground 2 being made out. The nub of this ground was a complaint that the Tribunal failed to consider country information relevant and responsive to the particular social group “Fijian lawyers who represented SDL Party executives”. The submission recorded by the primary judge was that, rather than considering country information in relation and responsive to this particular social group, the Tribunal only had regard to country information indicating that there were no reports of lawyers representing SDL members, as distinct from SDL executives.

23    The primary judge concluded that this ground was not made out because, firstly, Ground 2 had not been made out and, secondly, generally the choice and selection of country information, and the weight to be given to such information, is a factual matter for the Tribunal and not an issue for review. The primary judge was satisfied that the Tribunal had not made a finding that was not supported by the country evidence to which it had regard.

The appeal

24    The notice of appeal contains three grounds expressed as follows (omitting particulars):

Ground 1

The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error in determining without a logical and probative basis that a critical aspect of the appellant’s evidence upon which his claim was based was not made out.

…

Ground 2

The primary judge erred when it found that the Tribunal had not committed jurisdictional error by denying the appellant a fair hearing under s.425 of the Migration Act. The Tribunal had failed to put the appellant on notice that it would reject one of his central claims of having acted for the relative and high profile SDL political member.

…

Ground 3

The primary judge erred when it made no finding that the Tribunal had an obligation to make further enquiries in relation to the letter provided by the relative and high profile SDL member.

…

25    At the hearing of the appeal, the appellant was self-represented. I invited him to address me orally, but he was content to rely on his written submissions. These submissions were quite extensive and repeated, with minor elaboration, the particulars to the grounds of appeal.

26    Ground 1 of the appeal is similarly expressed to Ground 2 of the appellant’s application for judicial review. However, in submissions the appellant did not confine Ground 1 of the appeal in the particular way Ground 2 of the application for judicial review had been refined before the primary judge by the appellant’s then counsel: see [14]-[15] above.

27    In this appeal, the appellant submitted that the Tribunal had committed a jurisdictional error by failing to consider his claim that he was a Fijian lawyer who not only belonged to families who were opposed to the Fijian military regime, but who also opposed the military regime personally by representing a relative who had a high and significant profile in the SDL political party. He submitted that the primary judge erred by not finding that the Tribunal fell into jurisdictional error on this basis. This, however, is not the way in which the corresponding ground of judicial review was put to the primary judge. I see no error in the way in which the primary judge considered and dealt with the corresponding ground as put to him by the appellant’s then counsel.

28    Be that as it may, Ground 1 of the appeal, as developed in submissions, cannot succeed. At [66] of the Decision Record, when dealing with the appellant’s claims based on fear of harm for his political opinion, the Tribunal did not accept that the appellant had acted for Mr Vivian in order to express such an opinion. At [68] of the Decision Record, the Tribunal did not accept that the appellant’s family connection with Mr Vivian would result in him being imputed with a political opinion critical of the current Fijian government or military that would result in him facing a real chance of suffering serious harm. The Tribunal also did not accept that there was a real chance that the appellant’s appearance on behalf of Mr Vivian in court on August 2010 would result in him being imputed with such an opinion and, for that reason, facing a real chance of suffering serious harm.

29    When the Tribunal came to deal specifically with the appellant’s claim of membership of a particular social group, it referred specifically (at [73] of the Decision Record) to its earlier reasoning in relation to the risk of harm to the appellant based on an imputed political opinion as a lawyer in Fiji and as a family member of Mr Vivian as a leader of the SDL. Thus, contrary to the allegation in this ground of appeal, the Tribunal in fact considered each integer of the social group to which the appellant claimed to belong, and, as a matter of substance, rejected his claim in that regard.

30    Relatedly, the appellant submitted that the Tribunal failed to consider the documents itemised in [48] of the Decision Record, which included a letter from Mr Vivian: see [6] above. There is no basis to assume that, having specifically listed and described the documents that the appellant had submitted in support of his claims, the Tribunal then neglected to consider them. Indeed, at [56] of the Decision Record, the Tribunal specifically referred to and discussed Mr Vivian’s letter. At [61]-[62] of the Decision Record, the Tribunal specifically referred and discussed other documents that it had listed and described at [48].

31    Under this ground, the appellant also sought to challenge the credibility findings that had been made against him. There is no reason for the Court to interfere with those findings by the Tribunal.

32    Ground 2 of the appeal relates to Ground 1 of the application for judicial review which was, in fact, abandoned by the appellant’s counsel at the hearing before the primary judge. In this regard, it is directed to the Tribunal’s rejection of the appellant’s claim to have been threatened by members of the Fijian military because, according to the appellant, he had been acting for Mr Vivian who, he said, was a high profile member of the SDL. This rejection was based not only on (what the Tribunal found to be) inconsistencies in the appellant’s evidence but also on the evidence given by the appellant’s siblings who, according to the Tribunal, appeared to know very little about the appellant’s claims and his involvement in acting for Mr Vivian. The Tribunal said that it gave significant weight to the evidence of these witnesses. At [60] of the Decision Record, the Tribunal said:

60.    While I accept that the witnesses have been living in Australia for many years and were not in Fiji when the events the applicant claims lead to him facing a risk of harm took place, I find that if the applicant’s claims were genuine the witnesses, being the applicant’s siblings, would have at least some knowledge of the specific events, such as the applicant acting on behalf of Mr [Vivian] and the applicant being involved with or supporting the SDL, leading to the applicant facing a risk of harm, either because they heard about these events occurring while the applicant was still in Fiji or because he would have spoken with his siblings about these events after he came to Australia. I find that the reason the witnesses did not refer to the applicant being involved in court proceedings acting on behalf of Mr [Vivian], or to the applicant being involved with or supporting the SDL is because the applicant did not act on behalf of Mr [Vivian] other than on one occasion (which, for reasons set out below, I accept) and because the applicant was not involved with and did not actively support the SDL.

33    The appellant submitted that the Tribunal’s conclusion expressed in the last sentence of [60] of the Decision Record was not rational. I do not accept that submission.

34    Ground 2 of the appeal also appears to be related to Ground 3 of the application for judicial review as developed by the appellant’s counsel before the primary judge.

35    The appellant submitted that the Tribunal had been selective in accepting parts of the witnesses’ statements and ignoring “significant aspects” of the same statements. He did not, however, elaborate on this submission to identify the “significant aspects” which, according to him, had been ignored.

36    The appellant then submitted that, by not stating critical aspects of its concerns to the appellant in relation to “significant points that formed the basis of its decision”, the Tribunal denied him the opportunity provided under s 425 of the Act to give evidence and present arguments. In this connection, the appellant submitted that the Tribunal should have put him on notice of the weight it would give to the evidence of his relatives. The appellant also submitted that the Tribunal was duty bound to put him on notice that “his evidence was not going to be considered”.

37    I reject this submission. The appellant was provided with the opportunity to give evidence and present arguments as required by s 425. There was no denial of procedural fairness in this regard. It was for the Tribunal to weigh and assess the evidence before it. In doing so, it was not incumbent on the Tribunal to convey its impressions of the evidence called by the appellant or to presage its possible or likely findings. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48], procedural fairness did not require the Tribunal to give the appellant a running commentary upon what it thought about the evidence that was given.

38    Further, the appellant knew that his claim to have acted as a lawyer for Mr Vivian was under challenge. The Tribunal questioned the appellant about the number of court hearings he was involved in concerning Mr Vivian’s case. The appellant said that he had made several appearances: see [30] of the Decision Record. The Tribunal informed the appellant that it had concerns about whether he was telling the truth on this and other matters. It put to the appellant that he had told the delegate that he went to court for Mr Vivian on 15 November 2011, but had told the Tribunal that he had stopped acting for Mr Vivian in October 2011. When asked for an explanation for this and other discrepancies in his evidence, the appellant informed the Tribunal that it was hard for him to recall. The Tribunal responded by saying that it was difficult for it to accept that the appellant did not have a better memory when there was only one court case that, according to the appellant, had brought him to the attention of the authorities. The Tribunal then asked the appellant whether he had documentary evidence to prove that he had acted for Mr Vivian. The appellant said that he did have documentary evidence, but this was in Fiji: see [44] of the Decision Record. The Tribunal gave the appellant an opportunity to provide further information on this and other matters. The appellant availed himself of this opportunity and on 20 June 2013 provided a number of documents to the Tribunal. These are the documents identified at [48] of the Tribunal’s decision record.

39    Further, contrary to the appellant’s submission, it is not the case that the Tribunal did not consider the evidence the appellant had provided. It is clear that the Tribunal did consider this evidence but, on all the evidence, was not satisfied of a number of material elements of the appellant’s claims.

40    The appellant then criticised the primary judge’s treatment of a difference between the Minister’s delegate and the Tribunal on when, precisely, the appellant had appeared in court for Mr Vivian. The delegate and the Tribunal both found that the appellant had appeared only once for Mr Vivian. The primary judge explained the difference as follows:

50.    First, the evidence given by the Applicant to the Delegate differed from the evidence that he gave to the Tribunal. He told the Delegate that he had appeared as lawyer for Mr Vivian only on 15 November 2011 in Suva Magistrates Court. However, he told the Tribunal that he had appeared for Mr Vivian in the High Court and subsequently on four occasions in the Suva Magistrates Court. The Tribunal challenged him in relation to this body of evidence and the Applicant in response subsequently produced a document to the Tribunal which it accepted as establishing that he appeared on behalf of the Mr Vivian before the High Court in August 2010. Accordingly, both the Delegate and the Tribunal accepted that the Applicant had appeared on one occasion as a lawyer for Mr Vivian in a court of law and the only disconformities between the findings of the Delegate and the findings of the Tribunal were the date of the Applicant’s appearance in court and the identity of the court. However, I do not consider that either the date of the Applicant’s appearance in Court or the identity of the court were in the circumstances of this case a “determinative”, “dispositive” or “critical” issue.

41    The appellant submitted that the primary judge wrongly concluded that the date of the appellant’s appearance in court, and the identity of the court, were “determinative”, “dispositive” or “critical” issues. However, as [50] of the primary judge’s reasons make clear, his Honour made the contrary finding. To the extent that the appellant may have intended to challenge the primary judge’s finding that the difference was not determinative, dispositive or critical, I reject that challenge. I see no error in the primary judge’s assessment and conclusion in that regard.

42    For these reasons, Ground 2 of the appeal fails.

43    Ground 3 of the appeal relates to the Tribunal’s assessment of the letter provided by Mr Vivian: see [6] above. The Tribunal’s finding was:

56.    I have considered the letter provided by the applicant from Mr [Vivian], which refers to the applicant being involved in establishing SDL infrastructure when the party was formed in the mid-1990s and with organising hecklers for Fijian military meetings during the 2006 election campaign. I note that the applicant made no reference to either of these activities either during the interview with the delegate or the hearing before me. I find that if the applicant had been involved in these activities he would have said so to either me or the delegate. That Mr [Vivian] was willing to state that the applicant had been involved in these activities when, in fact, he had not, leads me to doubt the reliability of the information provided by Mr [Vivian]’s letter. As a result, I give very little weight to this letter in assessing the applicant’s involvement with the SDL or his involvement with Mr [Vivian]’s criminal proceedings.

44    The appellant contended that the primary judge erred by not finding that the Tribunal had an obligation to make further inquiries in relation to the letter provided by Mr Vivian. The appellant submitted that the issue for inquiry was whether or not the contents of the letter had been fabricated. He submitted that the Tribunal was required “to establish the contents”. He also submitted that this was a task that the Tribunal could have undertaken easily.

45    Relatedly, the appellant submitted that there was a complete failure by the Tribunal to make any impartial assessment of the letter or to “weigh up … that evidence”.

46    The appellant also submitted that procedural fairness required the Tribunal to make him aware of “the case against” him and to be provided with an opportunity to respond to issues arising in his case. The appellant submitted that at no time during the course of the hearing did the Tribunal raise the subject of the letter with the appellant. He submitted that the Tribunal had a duty to clearly and unambiguously raise critical issues with the appellant on which his application depended.

47    Finally in relation to this ground, the appellant submitted that the Tribunal failed to consider an essential integer of his claim and that its finding in [56] of the Decision Record was unreasonable, illogical and irrational.

48    The first thing to note about Ground 3 of the appeal is that it was not raised as a ground of review in the proceeding below. The second thing to note is that it contains a profusion of different challenges all centring on the Tribunal’s findings concerning Mr Vivian’s letter. This letter, and other evidence, was provided by the appellant after the hearing before the Tribunal. It was provided in response to the many concerns expressed by the Tribunal during the hearing with respect to the credibility of the appellant’s claims. Thus, the complaint that the Tribunal did not raise the letter with the appellant during the course of the hearing is baseless. The simple fact is that the letter was not then before the Tribunal. The Tribunal only received the letter on 20 June 2013, after the hearing. Further, having expressed in the clearest possible terms its concerns about the credibility of the appellant’s claims, and having then given the appellant an opportunity to provide further information to address those concerns, it was not incumbent on the Tribunal to raise with the appellant its assessment of the letter as a piece of evidence.

49    I reject the appellant’s submission that the Tribunal did not make an impartial assessment of the letter or fail to “weigh up” this piece of evidence. There is nothing to suggest that the Tribunal did not make an impartial assessment of the letter. And, plainly, the Tribunal did weigh up this evidence. In the event, it was only prepared to give the letter very little weight. There is no reason to interfere with the Tribunal’s assessment in that regard.

50    Further, I reject the submission that the Tribunal’s statutory duty to conduct a review of the delegate’s decision imposed on it the obligation to conduct an inquiry into the contents of the letter itself to verify the accuracy of the matters stated in it. The present is not a case of an obvious inquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 3; (2009) 259 ALR 429 at [25]. It was for the appellant to adduce the evidence he wished to rely on. In the case of Mr Vivian’s letter, the Tribunal considered the evidence and noted that it raised conduct about which the appellant himself had been wholly silent. For this reason, the Tribunal was sceptical about the reliability of this evidence and gave it very little weight. The Tribunal’s treatment of Mr Vivian’s letter does not manifest a failure on its part to exercise its jurisdiction to review the appellant’s claims.

51    Finally, the appellant’s submissions that the Tribunal failed to consider an essential integer of his claim and that its finding in [56] of the Decision Record was unreasonable, illogical and irrational are without substance.

52    As I have noted, the substance of Ground 3 of the appeal was not raised before the primary judge. There is no explanation as to why it was not raised. It is without merit. I therefore refuse leave to rely on it now.

Conclusion and disposition

53    The appellant has failed to make out his grounds of appeal. The appeal will be dismissed, with costs.

Associate:

Dated:    7 March 2018