GIO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 93

1. The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2. Pursuant to s 130(1) of the Evidence Act 1995 (Cth) the redacted information in Annexure KE 2 of the Evans affidavit is not adduced as evidence.
3. The application, as amended on 29 November 2024, is dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By application filed on 6 December 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) (as it then was) dated 13 November 2018. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicants Protection (Class XA) (subclass 866) visas (the visas) under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicants are citizens of Fiji. They are de facto partners.
2. The first applicant (the applicant) entered Australia multiple times and last arrived in Australia on 1 March 2014 as the holder of a Visitor (Subclass 600) visa (CB 16). The second applicant last arrived in Australia on 29 April 2014 (CB 42). She had also entered Australia several times prior.
3. On 21 May 2014, the applicants applied for a Carer (Residence) Subclass 836 visas. That application was refused. A review of the decision was lodged with the then Migration Review Tribunal, however, it did not have jurisdiction to review the matter as the application for review was not lodged within the prescribed period. The applicants were notified of that decision on 3 July 2015.
4. On 27 July 2015, the applicants lodged a protection visa application, in which the applicant made claims for protection. In summary, he claimed that:
   • he was a police informant from 1996 to 1998 and 2007 to 2014;
   • criminals were aware that he was assisting the authorities;
   • he was threatened by powerful people in Fiji;
   • his home was raided in 2010, while he and his family were home. His son was harmed but the second applicant fled after being threatened with a knife to her neck. The applicant was stabbed with a spear and the second applicant screamed to draw the neighbour's attention;
   • he received threats by phone, even in Australia, threatening his life;
   • he requested a meeting with the Attorney-General (Mr AK) to seek protection for him and his family, however, protection was not available;
   • as the threats continued, he obtained a new ID and passport with a different name and date of birth 'to avoid being identified by the authority who was also involved in' the threats;
   • he travelled to Australia to test the passport and ID and then returned to Fiji where he stayed in hiding until his most recent travel to Australia when his parents called for help; and
   • the reason he used illegitimate documents was to protect his life and his family's wellbeing.
5. On 28 October 2015, the applicant attended an interview with the delegate at which he provided a new statement of claims which included, among other things, that:

(a) the people threatening him in Fiji were associated with three senior policemen;

(b) the raid occurred in 2009, not 2010 as previously claimed, with the aggressors taking the applicant's car when they left;

(c) he received death threats from a Mr AR, the head of the gang, and threats from H, whom he had met once in Fiji in 2013, and the authorities were unable to protect him;

(d) he had no alternative but to travel to Australia using illegitimate documents as he would be killed by the powerful policeman involved;

(e) he would face serious and/or significant harm in Fiji due to his membership of a particular social group being 'informants for the Fijian authorities' and for his imputed political opinion (as a perceived supporter of the Fijian political system); and

(f) if deported, he would be imprisoned by the Fijian authorities for the documents used and the 'persecutors' would easily locate him and end his life.

1. On 13 September 2016, the delegate refused to grant the applicants the visas. The delegate was not satisfied that the applicant was a credible witness and found that he had fabricated his claims for the purposes of securing a migration outcome.
2. On 7 October 2016, the applicants applied to the Tribunal for review of the delegate's decision.
3. On 9 December 2016, the Tribunal received an email from the applicant's son which attached an affidavit of Mr S Chandra, sworn on 12 November 2015, attesting to the applicant's involvement as a police informer.
4. On 19 September 2018, the applicants were invited to attend a hearing before the Tribunal scheduled for 18 October 2018.
5. Prior to the hearing, on 15 October 2018, the applicant's representative provided additional documents in support of the review which relevantly included a letter from the applicant's son.
6. The applicant appeared before the Tribunal on 18 October 2018 and was assisted by an interpreter in the Fijian and English languages. The second applicant also attended the hearing, but did not wish to give any evidence. Further documents were provided in support of the review.
7. After the hearing, the applicant's representative provided to the Tribunal a statutory declaration from the applicant, dated 1 November 2018.
8. On 13 November 2018, the Tribunal affirmed the delegate's decision not to grant the applicants the visas.

1. In considering the claims, the Tribunal stated that the issue before it was the credibility of the applicant and whether, on accepted claims, the protection visa criteria had been satisfied.
2. The Tribunal set out the criteria for a protection visa, noting that the applicant must either satisfy the 'refugee' criterion or meet the 'complementary protection' grounds for protection. The relevant definition of 'refugee' and the complementary protection grounds under the Act were also set out.
3. The Tribunal noted that it must have regard to Ministerial Direction No. 56 made under s 499 of the Act, and that it must take into account the policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments. The Tribunal identified that it had regard to the Department of Foreign Affairs and Trade (DFAT) Country Report - Fiji, 27 September 2017.
4. The Tribunal detailed the applicant's personal and immigration history. It summarised information provided in the applicant's protection visa application form. The Tribunal then provided an extract of a statement provided by the applicant to the Department, which it noted contained material differences to an earlier statement provided. The Tribunal made adverse credibility findings in respect of these discrepancies at [51] - [58] of its reasons.
5. The Tribunal also summarised material before it, including:

(1) An affidavit of Mr Chandra stating that he was an ex-police officer, having served with the Fijian Police for 20 years, that the applicant was a police informer who provided information to the police department, that criminals had threatened the applicant's life, and that the applicant's home was attacked.

(2) A letter from the applicant's son indicating that he and the second applicant had a genuine fear for their family in Fiji.

(3) A letter by a crime officer regarding a report by the applicant on 26 May 2009 that six unknown, armed persons forcibly entered his home and stole jewellery and cash. Two accused were arrested and charged with robbery and violence and the matter was finalised in court.

(4) A letter by the applicant's other son indicating he witnessed the home invasion. He claimed to have witnessed an attempt to stab the applicant.

(5) Media reports regarding a Nadi named businessman who was accused of drug trafficking but is a free man in Sydney.

1. The Tribunal then considered the credibility of the applicant. It was not satisfied that the applicant was a witness of truth. The Tribunal's finding was based on six credibility concerns, which it considered cumulatively.
2. The Tribunal noted that the applicant did not seek protection, between 1998 and 2007, when he was living in New Zealand, despite claiming to have left Fiji in 1998 out of fear for his safety. The applicant claimed that his fraudulent passport provided him with permanent residency and, once it lapsed, he claimed not to know that he could have sought the New Zealand equivalent of a protection visa. The Tribunal found this difficult to accept, but it gave it limited adverse weight: [42] - [45].
3. The Tribunal noted that the applicant returned to Fiji in 2007 to live in the same location he previously resided, which he claimed to have fled once his identity was revealed to a Mr R (a criminal organiser). It also noted the applicant's claim that he continued to be an informer upon his return. The Tribunal found, at [47] - [50] of its decision, that it entirely lacked credibility that the applicant would re-establish living arrangements and connections with criminal networks who had knowledge of his role as a police informer.
4. The Tribunal noted that the applicant had provided inconsistent evidence as to why he obtained the fraudulent passport in 2010, including his claim to have obtained a passport to escape criminal attention and corrupt authorities in Fiji, to facilitate his role as a drug courier to Australia and that his visits to Australia thereafter were to test whether the passport would facilitate entry into Australia.
5. The Tribunal considered that the applicant gave inconsistent evidence in his interview with the delegate, which the Tribunal put to him pursuant to s 424AA of the Act, regarding whether he faced threats and difficulties prior to his arrival in November 2010. It noted that the applicant visited Fiji on three separate occasions between 2010 and 2012, undermining his claim that he feared serious or significant harm in Fiji. The applicant also claimed he used to 'get death threats all the time' and referenced his meeting in 2013 with the Fijian Attorney General who informed him he would not be provided protection. The Tribunal noted that the meeting was in 2013 and not relevant to his difficulties in 2010.
6. The Tribunal noted that the applicant's evidence as to his employment while in Fiji from December 2007 until March 2014 (including as a farmer, boxing promoter and boxing trainer) was not consistent with his claim that he was in hiding in Fiji.
7. The Tribunal found that the applicant had not provided any tested or authoritative evidence from police authorities in Fiji demonstrating that he was an informer. The applicant claimed police corruption 'at the highest level' prevented him from obtaining this evidence. The Tribunal noted that the applicant was still able to obtain a report from the Crime Officer of the Lautoka Police Station in October 2016 regarding the invasion of his home, which suggests a degree of police cooperation in supporting some of the applicant's claims.
8. The Tribunal gave limited adverse weight to information before it which indicated the applicant had engaged in criminal activities: Tribunal's decision at [67].
9. The Tribunal observed that on the Department's file was a Certificate and Notification issued under s 438 of the Act, which covered information provided by a source in confidence (CB 202, [73]). The Tribunal noted that it put the following information to the applicant pursuant to s 424AA of the Act without disclosing the source of the information:

(a) the applicant travelled to New Zealand under a false name in 1998;

(b) the applicant remained in New Zealand for ten years committing burglaries, creating fake passports and credit cards, and spent time in prison before being deported to Fiji;

(c) the applicant was previously deported from Australia and has since returned under a different name;

(d) the applicant's wife also entered Australia under a false name, but the source provided no further details.

1. The applicant elected to respond to the information in writing after the hearing. In his response, the applicant indicated that he had already disclosed that he travelled to New Zealand on a false passport and was charged in relation to this. He was never in possession of, or charged with, falsifying credit cards and he was not deported from New Zealand but left voluntarily.
2. In considering the applicant's responses, the Tribunal did not find that the information was 'overly adverse' to the applicant. However, to the extent that it demonstrated the applicant's criminal tendencies, as acknowledged by the applicant, it considered that it had raised concerns about credibility, especially when considered cumulatively with other credibility concerns.
3. In light of its credibility concerns, the Tribunal found it difficult to be satisfied as to the core claims made by the applicant. The Tribunal was not satisfied that the applicant was a longstanding police informer. While it was prepared to accept that the applicant may have had some ad hoc and sporadic contact with police (including corrupt police officers), it did not accept that it was as claimed by the applicant or that the applicant was an 'undercover agent'. The Tribunal noted the absence of any tested corroborative evidence from the authorities in Fiji. It was not satisfied that the applicant was outed as an informant to any criminal elements in Fiji resulting in threats to the applicant or creating any ongoing risk for him should he return to Fiji (CB 203, [82]). Further, the Tribunal was not satisfied that the applicant met with the Attorney-General of Fiji.
4. The Tribunal was prepared to accept that the applicant and his family were subject to a home invasion in 2009 in which the applicant and his son were injured but did not accept that this incident was payback for the applicant being an informer and, in light of the applicant's three return visits to Fiji after the incident, the Tribunal was not satisfied that this one incident had created a real chance of the applicant facing serious or significant harm as a result of a repeat occurrence: at [84]. In this regard, the Tribunal noted that the statement by the applicant's son corroborating the incident but found that this did not overcome the various credibility concerns.
5. The Tribunal did not consider that the applicant was making a claim that he would be imprisoned on return to Fiji, as the applicant expressly stated at the hearing that he had no fear of being imprisoned in Fiji for having used fraudulent documents: at [87].
6. Ultimately, the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm for any of the reasons claimed and affirmed the decision under review.

1. The application to this Court, as amended and filed on 29 November 2024, contains two grounds of review, which have been considered further below.
2. The applicant filed an affidavit, affirmed on 4 December 2018, which annexed the Tribunal's decision. As the Tribunal's decision record was included in the Court Book, it was not necessary to admit this affidavit into evidence.
3. On 14 February 2019, the Minister filed the Court Book.
4. Orders made by a Registrar on 13 June 2019 provided for the applicant and Minister to file and serve any further material by 11 July 2019 and 8 August 2019, respectively. Nothing was filed by either party.
5. On 25 November 2019, the Minister filed the affidavit of K L Evans (the Evans affidavit), affirmed on the same day, regarding the documents covered by two non-disclosure certificates issued pursuant to s 438(1)(a) which appear in the Court Book (CB 119, 139). The Minister made no claim for privilege over information covered by the first certificate, dated 19 September 2016, and marked KE-1. However, the Minister claimed public interest immunity over the redacted information contained in the documents covered by the second certificate, dated 17 November 2017, which purports to cover 'the source of information received via Border Watch phone call on 17 NOV 2017 because it was given to the Department of Immigration and Border Protection (DIBP), in confidence'. The Minister redacted parts of the document that reveal, or have the potential to reveal, the identity or source of the allegation. The Minister seeks an order that the redacted portions of the document are not disclosed to any person, including the applicant, other than the Court. The redacted document was marked KE-2. The unredacted document was marked KE-3 and placed in a sealed envelope. The Court has not sought to view that document as it did not consider it necessary to do so.
6. Orders made by a Registrar of this Court on 14 November 2023, provided for the applicants to file and serve written submissions and any amended application at least 28 days before the hearing. The orders also provided for the Minister to file and serve written submissions at least 14 days before the hearing.
7. An outline of submissions was filed by the Minister on 20 November 2024, together with two affidavits affirmed on 18 November 2024. The Affidavit of J H Shaw (the Shaw affidavit) annexed a transcript of two extracts of the audio recording of the hearing before the Tribunal.
8. The Affidavit of M Burnham (the Burnham affidavit) annexed a document that had been 'inadvertently excluded from the Court Book titled 'A statement of Claims for Protection visa'', dated 20 October 2015.
9. On 28 November 2024, the applicants filed submissions. On 29 November 2024, an amended application was also filed on behalf of the applicants. Leave was required for the applicant to rely on the amended application.
10. The matter was heard on 4 December 2024 at the Parramatta Registry of the Court. The applicants were represented by Mr Bodisco of counsel. The Minister was represented by Ms Maddocks of counsel.
11. The Minister did not object to leave being granted for the applicant to rely on the amended application filed on 29 November 2024. The amended application replaced the grounds of judicial review in the originating application with two new grounds of judicial review, which counsel for the Minister was able to thoroughly address in oral submissions at the hearing. Counsel for the Minister did, however, flag that an order would be sought in respect of the Minister's costs thrown away.
12. The Evans affidavit, including annexures KE-1 and KE-2, was read into evidence. There was no objection by the applicants to the Minister's claim of public interest immunity in respect of the redacted information in KE2. Accordingly, the Court will make the order sought by the Minister pursuant to s 130(1) of the Evidence Act 1995 (Cth) (Evidence Act_)_ that the redacted information not be adduced into evidence.
13. The Minister did not seek to read the Shaw affidavit on the basis that the grounds in the originating application, to which the Shaw affidavit was relevant, had been abandoned. The Burnham affidavit was read.
14. The Minister sought to rely on material in the Court Book. Accordingly, the Court Book, filed on 14 February 2019, was tendered into evidence and marked Exhibit CB.

1. As the applicant had no objections to the Minister's claim of public interest immunity over the redacted information in Annexure KE-2, it is not necessary for the Court to provide a detailed analysis of why it upholds the Minister's claim.
2. The claim for public interest immunity was made by the Minister pursuant to ss 130(1) and 130(4)(e) of the Evidence Act, which is a well-recognised category of public interest immunity in respect of information, the disclosure of which, would reveal or tend to reveal the identity of a confidential source of information.
3. While the Court has not viewed the confidential information in Annexure KE-3, it is satisfied on the information it has viewed (in Annexure KE-2), that the information, which appears to record the "source name" and "contact number", may reveal the confidential source of the information.
4. The Court is also satisfied that the information relates to the administration of the law of the Commonwealth, being the Act and Regulations, for which the Minister and the Department have the responsibility of administering in the course of assessing the visa eligibility (or otherwise) of non-citizens.
5. The applicant has not raised any objections about the Minister's claim for public interest immunity, nor were submissions made which suggest that disclosure of the information was necessary for the proper administration of justice. In balancing the risks of disclosure of the confidential information against its evidentiary value and importance in the present matter, the Court considers that the balance falls in favour of non-disclosure of the redacted information.
6. Accordingly, the Court upholds the Minister's claim for public interest immunity over the information redacted in Annexure KE-2.

1. The amending application relies on the following grounds of judicial review which are reproduced below (without alteration):

First Ground:

The Tribunal has made a decision so unreasonable that no reasonable person would have made it

Particulars:

That in circumstances where the Tribunal had come to the view that both the Applicant's evidence and answers the Applicant's claim may involve admissions to have engaged in criminal activity, the failure of the Tribunal not to offer to adjourn the proceedings to allow the Applicant to obtain legal advice, or to put the Applicant on notice about the issue before the hearing, amounts to the Tribunal making a decision so unreasonable that no reasonable person would have made it.

Second Ground:

The Tribunal has made a decision so unreasonable that no reasonable person would have made it

Particulars:

The Failure of the Tribunal to not make confidential inquiries of both the law enforcement authorities in Fiji and New Zealand, those being obvious inquiries about critical facts gives rise to a jurisdictional error either in failing to undertake the review or in making a decision so unreasonable that no reasonable decisionmaker would make the decision.

1. In respect of the first ground, the applicant refers to paragraph [33] of the Tribunal's decision, at which the Tribunal explains to the applicant that it will be asking him questions about criminal activity he may have engaged in, but that the applicant would have the option of declining to answer those questions on the basis that the response might incriminate him.
2. The applicant contends that the Tribunal did not give him time to confer with his lawyer or seek advice on these matters. The applicant argues that he would have been in a position where disclosure could lead to further harm to family members, repercussions should he be unsuccessful, or could hamper existing law enforcement operations. The applicant drew a comparison with the Local Court of New South Wales, stating that it would be unheard of for a defendant to be left to make those judgment calls on their own without the assistance of their lawyer.
3. The applicant contends that the Tribunal appears 'to have misdirected themselves as to whether such privileges against self-incrimination would only have effect should the Applicant take an objection'. He also argues that the adverse credit inferences drawn against him 'would appear to be fruits of a poisoned tree - an inquiry in which the applicant was denied privileged discussions and guidance from his lawyers in answering'.
4. The applicant relied on the Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li) at [63], where it was held that in the case of a discretionary administrative decision there is a presumption of law that the power will be exercised reasonably, and that unreasonableness was not limited to Wednesbury unreasonableness: Li at [68].
5. The applicant also referred to Minister for Immigration and Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437 (Singh), in which the Full Court of the Federal Court held that legal unreasonableness is invariably fact dependent and can attach to the unreasonableness of the process or outcome:

[44] ... legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision making process... However legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. ...

[48] ... the reasoning process in review for legal unreasonableness will inevitably be fact dependent... any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised....

1. The applicant also relies on the following summary of the principles in Singh which were set out by the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [61]:

(a) legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]);

(b) there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]);

(c) there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be "outcome focused" where there is no "evident and intelligible justification" (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]);

(d) where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]-[47]); and

(e) perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]).

1. In oral submissions, counsel for the applicant referred to s 433 of the Act (which was in effect at the time of the Tribunal's decision but has now been repealed) which related to an applicant's right to claim privilege against self-incrimination. It was submitted that the repealed provision (s 433) ought to be read consistently with the procedures that are in place under the new provisions, which he contended were more consistent with the provisions under the Evidence Act. It was submitted that, irrespective, the Tribunal failed to adjourn, even for a short period to enable the applicant to have privileged discussions with his representative.
2. Counsel referred to s 424AA of the Act and said the Tribunal had an obligation to put adverse information to the applicant, explain its relevance and bring it to the applicant's attention that they could seek an adjournment. Counsel's submissions did not articulate (or suggest) any failure on the part of the Tribunal to comply with its obligations under s 424AA of the Act, which appears to have been utilised on several occasions by the Tribunal at the hearing.
3. In respect of ground two, the applicant refers to the adverse credibility findings made against him by the Tribunal at [43] - [78] of its decision. The applicant contends that there were obvious inquiries that could have been made of the New Zealand and Fijian authorities to identify 'whether assistance was given; to which officers; how this assistance was assessed in terms of its operational usefulness; whether information had been leaked back to the accused; whether it resulted in arrests and sentences; and whether his life is in danger as a result.'
4. The applicant relied on the general principle in Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 (SZIAI) at [25], that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.
5. The applicant also relied upon Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [74], which referred to the plurality judgment in SZIAI where French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [25] held that:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a 'duty to inquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

1. The applicant also summarised the principles relevant to the duty to inquire as follows:

(1) The particular merits review tribunals which have been the subject of consideration in the cases exploring a possible duty to inquire are inquisitorial in nature.

(2) The mere fact of being inquisitorial in nature does not give rise to a broad duty to inquire.

(3) Merits review tribunals are not subject to a broad duty to inquire.

(4) Inquisitorial tribunals are subject to an obligation to make an obvious inquiry about a critical fact, the existence of which is easily ascertained (the Prasad principle).

(5) A failure to make obvious inquiries about a critical fact may give rise to a jurisdictional error either in failing to undertake the review or in making a decision so unreasonable that no reasonable decision-maker would make the decision.

1. It was submitted that the present matter is one of those rare cases in which the duty to inquire was enlivened, this was particularly so as the applicant had led evidence from a retired police officer with knowledge of the applicant's case, and if the inquiries had been made, the applicant's credibility would have been intact.
2. In oral submissions, counsel for the applicant further contended that inquiries could have been made of the relevant people, including the Fiji and New Zealand authorities, about whether the applicant was a police informer, his involvement in the police investigations, whether he had given evidence as part of those investigations, whether the applicant's evidence was of assistance, whether the applicant's evidence led to prosecutions or convictions and whether or not the applicant's life would be at risk as a result of his involvement. It was submitted that there was evidence, being the affidavit of an ex-police officer (CB 132), which had not been challenged and yet no inquiries had been made of the relevant people involved. It was contended that the Tribunal chose not to make those inquiries because the applicant had made admissions that he had engaged in document fraud and that this was the basis upon which the Tribunal decided that the applicant was not credible.
3. Counsel for the applicant acknowledged, as observed by the Court, that there were other reasons upon which the Tribunal based its credibility findings, but noted that for each of those factors, further inquiries could have been made by the Tribunal which would have resolved its concerns. Counsel then referred to each of the Tribunal's credibility findings, suggesting the types of inquiries that could have been made by the Tribunal and posing counterfactual scenarios about how the evidence may have unfolded if further questions had been asked, if the relevant inquiries made, and if the applicant had been given the opportunity to establish the veracity of his claims.
4. The Minister's submission, in summary, is that neither ground is made out and there was no legal unreasonableness on the part of the Tribunal.
5. In respect of the first ground, the Minister submitted that the applicant had been given the warning, as provided for in s 433 of the Act, about his right not to answer questions on the basis that the response might incriminate him and that neither the applicant nor the representative had sought an adjournment.
6. In respect of ground two, the Minister contends that there is no general obligation on the Tribunal to conduct inquiries and that in the circumstances of this case there was no obvious inquiry that could have been made. In respect of the Tribunal's credibility findings, the Minister submitted that the Tribunal's concerns were discussed with the applicant at the hearing, including the putting of information to the applicant under s 424AA of the Act.

1. By grounds one and two, the applicant contends that the decision made by the Tribunal was so unreasonable that no reasonable decision maker could have made it.
2. The unreasonableness in ground one is said to arise from the Tribunal's failure to adjourn (or offer to adjourn) the proceedings to enable the applicant to confer with his lawyer and/or obtain legal advice before giving evidence which may involve admissions by the applicant to have engaged in criminal activity (self-incrimination) or putting the applicant on notice about self-incrimination before the hearing.
3. The unreasonableness in ground two is said to arise from the Tribunal's failure to make obvious inquiries about critical facts. These failures, as appears to be contended by the applicant, tainted the adverse credibility findings made by the Tribunal against the applicant.
4. The applicant's submission sets out the legal principles relevant to the ground of legal unreasonableness as considered in Li, Singh and Stretton. It is common ground that jurisdictional error will be established if a decision is affected by legal unreasonableness. In considering the ground of legal unreasonableness, the Court's role is strictly supervisory. The Court does not review the merits of a decision or substitute its own view as to how a power should have been exercised.

Did the Tribunal act unreasonably by not offering to adjourn the proceedings to enable the applicant to obtain legal advice, or by not putting the applicant on notice about the issue of self-incrimination before the hearing?

1. Under common law, a person has a right not to give evidence on the ground that the evidence may tend to incriminate them (the privilege against self-incrimination). As noted by counsel for the applicant, the privilege against self-incrimination is codified in the Evidence Act at s 128. The Court notes, however, that the Tribunal, in conducting a review of a Part 7 reviewable decision, was not bound by the rules of evidence: s 420. The fact that the Act has since been amended and now reflects similar wording to the provisions of the Evidence Act is of no consequence. It is the provisions of the Act that applied at the time the Tribunal conducted the review that are relevant for the purposes of the present proceedings.
2. Relevantly, s 433(2), which appeared in Division 6 of Part 7 of the Act, stated it was an offence for a person appearing as a witness before the Tribunal to fail to answer a question that the Tribunal has required them to answer for the purposes of the proceeding. However, consistent with the common law right to claim a privilege against self-incrimination, s 433(3) of the Act provides that the offence would not apply if answering the question might tend to incriminate the person.
3. A Tribunal may be in breach of its procedural fairness obligations if it fails to advise an applicant, particularly one who is unrepresented, of their right to refuse to answer questions on the basis of a claim for privilege against self-incrimination: Kholi v Minister for Immigration and Border Protection [2018] FCA 540 at [31] - [34].
4. In the present case, the Tribunal explained to the applicant at the commencement of the hearing that he had the right not to answer any questions put to him by the Tribunal if he thought answering the questions might incriminate him. The Tribunal informed the applicant that it would ask about criminal activity, but that the applicant would have the option of declining to answer on the basis that the response might lead to self-incrimination: Tribunal's decision at [33].
5. The applicant was clearly informed by the Tribunal that he had the right to invoke the privilege against self-incrimination. The privilege and how it could be invoked was explained to the applicant in plain language and at [33] the Tribunal records in its decision that the applicant said he understood what had been explained to him.. The applicant's representative, who has legal qualifications, was also present throughout the hearing. The Court accepts, as submitted by the Minister, that it was open for the applicant or his representative to seek an adjournment of the proceedings if they wished to have any privileged conversations.
6. The Court further observes that the Tribunal, on three occasions, put information to the applicant, some of which included questions about alleged criminal activity he may have engaged in, using the procedure in s 424AA of the Act: see [52], [60] and [73] of the Tribunal's decision. As counsel for the applicant noted in oral submissions, this would have required the Tribunal to explain to the applicant the information, its relevance and to inform the applicant that he could seek additional time to respond to or comment on the information.
7. The Tribunal's decision indicates that on the first and second occasion, at [51]-[58] and [60]- [61], respectively, the applicant elected to respond to the information put to him under s 424AA at the hearing. The applicant could have taken the opportunity, at that point, to seek additional time to confer with his representative before responding to the information.
8. On the third occasion, at [73]-[77], the applicant elected to respond to the information in writing following the hearing. This suggests that the Tribunal adjourned the proceedings to enable the applicant to respond to the adverse information, which included allegations of him committing serious crimes in New Zealand, in writing after the hearing. Some two weeks after the hearing, the applicant's representative provided to the Tribunal the applicant's statutory declaration, dated 1 November 2018, in which the applicant provided his responses to the Tribunal's concerns, including those relating to allegations of him being involved in criminal activity (CB 177-178). The decision indicates that the Tribunal considered the explanations given by the applicant in response to its concerns.
9. The Tribunal's conduct of the review does not suggest any procedural unfairness on its part. When the applicant sought additional time to respond to the adverse information that was put to him at the hearing, the Tribunal adjourned the review to enable him to respond to the information in writing. At no time did the applicant or his representative request an adjournment of the hearing so the applicant could seek legal advice about his right to claim privilege against self-incrimination. In the circumstances, it cannot be said that the Tribunal acted unreasonably in not adjourning the review on this basis.
10. Ground one does not establish jurisdictional error on the part of the Tribunal.

Did the Tribunal act unreasonably (or fail to undertake the review) by not making inquiries with law enforcement authorities in Fiji and New Zealand?

1. The Tribunal had a general power, under s 424 of the Act, to obtain any information it considers relevant. It also had the power to invite a person to give information. However, there is no general duty (or obligation) on the Tribunal to exercise those powers: SZIAI at [25]. In other words, the powers are discretionary.
2. While there is no general duty to investigate an applicant's claims, in rare cases, a Tribunal may fall into error if it fails to make an obvious inquiry about a critical fact, the existence of which is readily ascertained: SZIAI at [25]. The applicant contends that this is one of those rare cases and that the Tribunal should have made inquiries with the Fiji and New Zealand authorities about the applicant's claim to have been a police informer and to have been involved in investigations, particularly in circumstances where there was evidence from an ex-police officer which had not been challenged.
3. In relation to the affidavit from Mr Chandra (the ex-police officer), the Court accepts, as submitted by the Minister that the Tribunal could not take evidence (or make any inquiries, even if there was some duty to inquire) from Mr Chandra (who was listed as a witness on the response to hearing form) because no contact details had been provided for him.
4. At [23], the Tribunal noted that had received the affidavit of Mr Chandra and set out its contents. At [24], the Tribunal noted that while the applicant had indicated in advance of the hearing that Mr Chandra would give evidence, on the day of the hearing, the applicant indicated that he had not maintained contact with Mr Chandra and that he did not have his contact details, meaning that he could not give evidence. It is not clear what more the Tribunal could have done, given the circumstances, to obtain evidence from Mr Chandra.
5. At [67] one of the concerns of the Tribunal, which was discussed with the applicant at the hearing, was the lack of supporting evidence from Fijian authorities, such as the police, that the applicant had been a long-standing police informer. In response, the applicant said there was corruption at the highest level of the police which prevented this. If the applicant himself was unable to obtain any supporting evidence from authorities in Fiji about his claim to have been a police informer and involved in investigations, it raises doubts about whether the Tribunal would have been able to obtain any useful information from the authorities in Fiji.
6. In any case, the Court is not persuaded that the types of inquiries that the applicant suggests should have been made by the Tribunal were either 'obvious' or 'easily ascertainable'.
7. As to inquiries of the New Zealand authorities about the passport, as submitted by the Minister, it was not necessary for the Tribunal to make that inquiry as the applicant, on his own evidence, had admitted to using a fraudulent passport to enter New Zealand for which he was charged and sentenced. Furthermore, the Tribunal appears to have accepted the applicant's evidence denying involvement in any other alleged criminal conduct in New Zealand.
8. The Court is not persuaded that there was any obligation on the Tribunal to investigate the claims made by the applicant. It was for the applicant to advance whatever evidence he wished in support of his claims for protection.
9. The Tribunal was entitled to determine the review on the basis of the evidence before it. It was not required to make its own inquiries to fill in the gaps in the applicant's evidence or to resolve inconsistencies in the evidence.
10. Given the evidence before it, it was open for the Tribunal to make the adverse credibility findings that it did. The Tribunal's decision discloses that the Tribunal discussed with the applicant its concerns at [43] - [78] and that the applicant was given an opportunity to respond to those concerns. The Tribunal's reasons disclose that it had regard to the applicant's explanations, some of which were accepted. Ultimately, the Tribunal was not satisfied that the applicant was a credible witness and did not accept his core claims for protection. The Tribunal's findings were open to it on the evidence before it and for the reasons it gave.
11. It cannot be said that the Tribunal was unreasonable in not making the inquiries suggested by the applicant. Nor can it be said that its adverse credit findings were not open to it.
12. Ground two does not establish jurisdictional error on the part of the Tribunal.

1. As the two grounds advanced by the applicant in the amended application do not establish jurisdictional error, the application for judicial review must be dismissed. The Court will so order.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.