Plaintiff S244/2012 v Minister for Immigration and Border Protection

The notice of appeal 11 The (supplementary) notice of appeal filed on 6 June 2016 before this Court was in the following terms, as written: 1. His Honour the primary judge erred by failing to hold that the Tribunal made jurisdictional error since it breached s425 when it impeded the First Appellant from giving evidence. This evidence was about the central claim of the appellants. That is that he faced threat to his life resulting from his knowledge of the meeting where conspiracy to stage a coup in Fiji was discussed. Particulars - This Ground is related to Ground 2 of the Further Amended Application (a) His Honour failed to understand or consider this issue in the context in which it was presented. It was made clear to his Honour, in the form of particulars {2(iv)} as well as submissions that the Tribunal (Second Tribunal) blamed the First Appellant in its decision for forgetting to discuss the claim about the coup with the First Tribunal. Further it used that as the single most damaging basis against the appellants for making the finding that the First Appellant fabricated the claim. The Tribunal could not have impeded the First Appellant when he attempted to discuss that claim about the coup with the Tribunal at the same time blaming him for forgetting to discuss that claim with the First Tribunal. (b) His Honour failed to consider that the Tribunal having understood that this was the central claim (para 36 of CB145) the Tribunal pressured the applicant to summarise the evidence. This the Tribunal did on the falsely stated reason that there was no time left but it was only half way (Page 22 of 44 pages of transcript) through the hearing, thus there was still half the hearing time left of the total duration of the hearing. 2. His Honour the primary Judge erred by not holding that the Tribunal made jurisdictional error since it breached s425 by failing either (i) to highlight the issues of concern or (ii) express in some way that any of his evidence is not accepted or being challenged. The decision in SZBEL required that the Tribunal do that. Particulars - This Ground is related to Ground 3 of the Further Amended Application (a) See his Honour's decision at [36]. His Honour states there the appellants' submission that the Tribunal behaved as if it accepted the appellant's evidence almost in its entirety and that there was no challenge to both appellant's evidence and no expression not any concern. But his Honour failed to make any finding on that. (b) His Honour's assertion in [47] that delegate indicated everything in the application is in issue, has no practical value. There was no hearing by the Delegate and none of the issues were tested. Thus the appellants would have got no understanding of the issues from the Delegate's decision which was too broad in its nature. (c) The appellants were not complaining about failure to indicate of thought process of the Tribunal but failure to indicate any thought on the issues that would have enabled the appellants to endeavour to present their case to the satisfaction of the Tribunal. With respect it was incorrect on the part of his Honour to refer to there being no need for 'running commentary' where there was total absence of comment about any concern with the appellants' evidence. See [48]. 3. His Honour failed to hold that the Tribunal fell into jurisdictional error by making a finding without evidence. Particulars - This ground is related to ground 7 of the Further Amended Application See [64], [66] & [67] of his Honour's decision (a) This is about the finding that the Tribunal made about a photograph that appeared in the internet. It showed the Second Appellant appearing with a group of people in front of a banner which was insulting to the ruler of Fiji. The appellants' case was that, that alone without anything about her past, could cause the appellants to be persecuted on their return to Fiji. His Honour failed to deal with that specific case put to his Honour by the appellants. See [67]. (b) Both his Honour and the Minister accepted that the finding of the Tribunal that it was not satisfied that that photograph has or could not come to the attention of the Fijian authorities, was manifestly absurd. See [64]. (c) His Honour contrary to the clear words then tried to read that finding beneficially to the Tribunal, thus substituting his own views to that of the Tribunal. His Honour then considered a narrower proposition that the Tribunal did not itself advance. See [66]. 4. His Honour erred in failing to deal with the substance of Ground 4 of the Further Amended Application. His Honour misunderstood Ground 4. Particulars See [55] to [57]. It was not alleged that it was not open to the Tribunal to rely on the applicant failing to mention the coup claims in the protection visa application. The allegation is that the Tribunal used the excuse of "in consideration of evidence as a whole" altogether ten times in [37], [39], twice in [40], [44], [45], [46], twice in [47] and [48], see CB145-147, although in substance those individual findings were not based on evidence as a whole. The Tribunal used circular reasoning, in that once it made a defective finding about "forgetting to discuss a central claim", it made the next finding based on this. So its claim of "in consideration of evidence as a whole" was hollow, baseless and unreasonable. His Honour failed to deal with the above allegation. 5. His Honour erred in dealing with Ground 6 of the Further Amended Application in that his Honour did not deal with the substance of Ground 6 but dealt with something else. Particulars Ground 6 alleged that the Tribunal made jurisdictional error by not taking account of the evidence of a critical eye witness to incident of serious harm. Particulars to Ground 6 stated: See [39] at CB146. The Tribunal failed to take account of the evidence of [Mr V] who had given a Statutory Declaration. This Statutory Declaration corroborates the harm suffered by the appellants. This was not dealt by his Honour in his decision. See [61]-[62].

Ground 1 12 The appellants submitted that the complaint under ground 1 was about the failure of the primary judge to find that the Tribunal made a jurisdictional error since it breached s 425 of the Migration Act by impeding the first appellant from giving evidence. It was submitted that the Tribunal impeded the first appellant when he was giving evidence about the central claim of the appellants. That claim was that he faced "threat to his life resulting from his presence at the meeting where a conspiracy to stage a coup in Fiji was discussed". 13 The appellants submitted the primary judge dealt with this in his decision at [50]-[53]. However, the appellants submitted, his Honour failed to consider this issue in the context in which it was presented. The appellants submitted his Honour failed to grasp the fact that the Tribunal, having understood at [36] that this was the central claim, therefore should not have pressured the first appellant to summarise the evidence. Further, it was submitted, the Tribunal pressured the first appellant on the "pretext" that there was no time left. However, it was only half way through the hearing and there was still half the hearing time left considering the total duration of the hearing. It was submitted that a justifiable explanation for that would be that the Tribunal "must have felt uncomfortable listening to the evidence because it was going against the position that the Tribunal was going to take, that is the Tribunal was going to dismiss it anyway and it had no patience to listen to that evidence". 14 The Minister submitted that the ground failed for the reasons which the primary judge gave at [50]-[53], that is, that the transcript indicated that the first appellant was not "impeded" from saying whatever he wished about the meeting he was describing. The Minister submitted that the transcript revealed the first appellant was not impeded from giving evidence in any way.

Ground 2 15 The appellants referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL). The appellants' case was that the Tribunal did not discuss with them any potential concerns that the Tribunal might have had with their case. The appellants also referred to SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [25]-[26] per Flick J. The appellants submitted that in the current case no specific aspects of the first appellant's evidence that was open to doubt by the Tribunal was put to him. It was the same with the second appellant as well. The appellants submitted the Tribunal was "just managing time to give an appearance of a hearing". The appellants submitted that it appeared that the Tribunal just wanted "to get over the hearing". The appellants submitted that the Tribunal breached s 425(1) of the Migration Act because the appellants did not have the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. 16 The Minister submitted that s 425 did not oblige the Tribunal to "highlight the issues of concern" or "express in some way that any of [the first appellant's] evidence is not accepted or being challenged". The Minister submitted the Tribunal member may well not have formed any concluded views at the hearing as to the evidence being given, and even if she had, she was not obliged by s 425 to communicate such views to the appellants. The Minister referred to SZBEL at [48]. The Minister submitted the appellants' claims were not accepted by the delegate and in the circumstances he was not entitled to assume anything was not in issue before the Tribunal: SZBEL at [47]. Nothing said by the Tribunal at the hearing indicated otherwise. The relevant paragraphs in SZBEL were as follows, at [47]-[48]: First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. (Emphasis in original.)

Ground 3 17 The appellants submitted that this ground was firstly about the finding that the Tribunal made about a photograph that appeared on the internet. The appellants submitted it showed the second appellant appearing with a group of people in Villawood Detention Centre in front of a banner which was insulting to the ruler of Fiji. The appellants' case as put to the primary judge in oral submissions was that, that alone, that is, the second appellant appearing along with others to endorse statements insulting to Mr Bainimarama, without anything more about her past, could cause the appellants to be persecuted on their return to Fiji. The appellants submitted that the finding of the Tribunal that the photograph could not come to the attention of the Fijian authorities, was manifestly absurd. The appellants also submitted there was no basis for the finding of the primary judge at [67] that it was unlikely that the Tribunal intended to make statements in its reasons which were manifestly absurd. The appellants submitted that the primary judge then, contrary to the clear words of the Tribunal, tried substituting his own words instead of those of the Tribunal. His Honour then considered a narrower proposition that the Tribunal did not itself advance. The appellants submitted the primary judge was not permitted to attribute something to the Tribunal which it did not say. In this way what his Honour was submitted to be doing was reviewing the merits, which was impermissible. The appellants referred to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [18]-[19]. There the Full Court said: … The basis of the alleged jurisdictional error was put on various interrelated bases: that the tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was "Wednesbury unreasonableness". But the essence of the argument was that there was no information before the tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. [19] This argument, if it were made out, would be sufficient to establish that the tribunal had made a "jurisdictional error" so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7 ; 94 ALR 11 at 37-8 ; 21 ALD 1 at 23-4. If the decision of the tribunal was "Wednesbury" unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67, 76, 90-91… 18 The appellants submitted that in this case the finding was manifestly absurd and that there was no basis for that finding and it was a critical step in the ultimate decision. This was because the Tribunal was bound to consider if the publishing of the second appellant's photo would lead to her persecution if she returned to Fiji. 19 The Minister submitted that the ground was an unfair reading of the Tribunal's reasons at [49] and [53]. On a fair reading, the Minister submitted, as the primary judge held, the Tribunal meant that the photo would not bring the second appellant to the adverse attention of the Fijian authorities or that there was not a real chance that the Fijian authorities would become aware of the photo at all, given the Tribunal's findings that the appellants were not of interest to the authorities. The Minister referred in this respect to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Wu Shan Liang); A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1], [19]-[27]; and Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 30 at [18].

Ground 4 20 This ground was based on a submission rejected by the primary judge but with which the appellants submitted they persisted before this Court that the Tribunal had used the phrase 'evidence as a whole' as a "ploy to avoid dealing with individual aspects of the claims." The appellants also submitted that the Tribunal used circular reasoning, in that once it made a defective credibility finding about "forgetting to discuss a central claim", it made the next finding based on this. So its claim of "in consideration of evidence as a whole" was "hollow, baseless and unreasonable". The appellants submitted that the Tribunal rejected their claims mainly because it stated that the claim about the first appellant being present in a meeting of the coup plotters was not made in the first and second protection visa applications and that it was not presented to the first Tribunal in any detail. Once the Tribunal had a view on that, it used that as the basis for subsequent findings in a "chain reasoning process". The appellants referred to their provision to the Tribunal of the Statutory Declaration of Mr V which referred to the persecution of the appellants. Thus, although the application itself did not raise it, as it was made without migration agent assistance, the Statutory Declaration itself raised some of the events and the close relationship between the first appellant and Mr N. Further in the present Tribunal the first appellant had referred to his witnessing of the coup plot although, not in great detail, as he alleged that he was diverted by the Tribunal member from dealing with that issue as the allegation was not disputed or questioned by the Tribunal. The appellants sought to distinguish Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 (S20) because the present case was not entirely about corroborating evidence, as it was in S20, but included ignoring the evidence of the appellants themselves. The appellants submitted that it was clear that the Tribunal did not look at all the evidence together to decide the case but used the finding about the first appellant's protection visa application and how the coup issue was presented to the first Tribunal as the reason for denying the appellants' claims in a chain reasoning process. 21 The Minister submitted that this ground was no more than an appeal for merits review concerning the Tribunal's reasoning process. That reasoning process, the Minister submitted, revealed no illogicality or other jurisdictional error within the relevant principles set out in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [44]-[56]. The Minister submitted the Tribunal was entitled to reason that it did not accept that an important part of the appellants' claims would not have been omitted from either of the appellants' protection visa applications if it were true, and to reject the entire story surrounding such claims as a result.

Ground 5 22 The appellants submitted that this ground alleged that the Tribunal made a jurisdictional error by not taking account of the evidence of a critical eye-witness to an incident of serious harm, being the Statutory Declaration. The appellants submitted that the Statutory Declaration corroborated the harm suffered by the appellants. This was not dealt with by the primary judge in his reasons at [61]-[62]. The appellants submitted that, at [39], the Tribunal failed to take account of the evidence in the Statutory Declaration, which contained specific and detailed evidence about the persecution of the appellants by the Fijian authorities. The appellants submitted that this amounted "to a failure to take a relevant consideration" or a failure to consider the whole of their case. The appellants submitted the Tribunal's main reason for refusing their case was that the first appellant did not refer to the claims in his protection visa applications and in his first Tribunal hearing. Based on that, the appellants submitted, the Tribunal dismissed the Statutory Declaration. The appellants submitted that Form 866 of the first protection visa application was before the Federal Circuit Court as an attachment to the affidavit of Sylvia Silva sworn on 8 March 2016 and filed with the Federal Circuit Court at the hearing. In that form, the appellants submitted, they referred to the harm they suffered in Fiji which was corroborated by the later Statutory Declaration, and this was provided by the appellants in the second protection visa application. Further, in the second Tribunal hearing, the first appellant referred to his witnessing of the coup plot although not in great detail as he alleged that he was diverted by the Tribunal member from dealing with that issue. The fact that he raised it supported the fact that it was not a recent invention. So, the appellants submitted, the Statutory Declaration could not be dismissed because the first appellant did not raise his claims in the second protection visa application. This was first because the first protection visa application itself referred to the events which the Statutory Declaration dealt with; and secondly, because the Statutory Declaration itself raised the claims in the second protection visa application. Thus, the appellants submitted, the Tribunal was bound to consider the contents of the Statutory Declaration which it failed to do. The appellants submitted it was a jurisdictional error for the Tribunal not to take the Statutory Declaration into account as a relevant consideration in dealing with this issue: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82]. The appellants submitted their credibility had not been damaged to such an extent that it could be said that "the well has been poisoned" as stated by the High Court in S20 so that the Tribunal could ignore the Statutory Declaration. 23 The Form 866C attached to Ms Silva's affidavit, being a part of the application for a Protection (Class XA) visa made on 18 May 2010 read as written, in answer to the question "Why did you leave that country?": I left my country because of the following reasons: (a) Fiji has experienced four military coups since 1987 14 May, 25 Sep 1987, 19 May 2000 and 5th Dec 2006. The first three coups were a reaction to the election victories of Indo Fijians, and the coup in Dec 5th 2006, involved the over throwing and military takeover of democratically elected government. Fiji now has a military led illegal interim government. (b) Under the military govt. the military and the police detained and abused individuals resulting in deaths. They conducted searches without warrant engaged in intimidation of medias. (c) Lastly I can also consider myself as stateless because of illegal takeover, no independence of judiciary, no free democratic process and also the postponement of election to 2014, and abrogation of constitution in my own country I feared that I will detained by the military and prosecuted for standing for the rights for the civilian population for a democratically ellected goverment. I have been mistreated once by the military and I have been taken from my home to the military camp for questioning and tourting. My family too is at risk because I will be treated as someone who is disloyal to the government and it's leaders and the military. Right now I am not willing to avail myself of the protection of Fiji and not having a nationality and as a result of such events I am unable or owing to my fear of being prosecuted and I am not willing to return to my country of Fiji. I fear of my life because they threatened me at my home and as a result my wife was seriously injured on the day they came home on 5th July 2008. In answer to the question: "What do you think may harm/mistreat you if you go back?" It is obvious that the people carrying out the job of mistreating people are the security forces. Those includes police and military. The prison officers often brutal attacks on the people held in custody for their political opinion on the military government. All military get their orders from military commanders who is a dictator. In answer to the question: "Why do you think this will happen to you if you go back?" When I go back to my country they will do the same thing they do to me on July 5th 2008 in front of my family. I'm also in fear if I go back and they know that I go against their government in Australia I feel that they will give me a hard punishment or they will beat me to death like what have done to others. Even fear is natural and necessary emotion that helps human scope with danger and helps them survive. No matter who we are, where we live, or what challenges we face fear is an ever present part of our lives. In answer to the question: "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" Sir I strongly feel that my country will not protect me if I go back for the following reasons; (1) the punishment and prosecution by the military authority for not adhering to a call by the military govt especially when Fiji is under a military leadership. The fear of not being protected by the authority of that country brings to mind the fear factor on TV show. For a few seasons TV watchers were subjected to a show called Fear Factor in which contestants would be placed in various fearful situations. 24 In supplementary written submissions dated 15 August 2016 filed by leave, to be directed to any authority considering the expression " … the nature, content and quality of the corroborative evidence … " referred to in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; 184 FCR 485 at [36] (SZNSP), the appellants submitted, with reference to MZYGC v Minister for Immigration and Citizenship [2010] FCA 966, that Jessup J at [13] (MZYGC) posed four questions, as follows: In the specific context of this case, I take the view that the following questions arise: 1. Did the evidence of the appellant's wife claimed to have been overlooked relate to a subject on which the appellant's evidence had been rejected? 2. Was the wife's evidence corroboratory? 3. Is it apparent that the evidence was sufficiently relevant and would have made a difference to the conclusions reached by the Tribunal? 4. Did the tribunal, in fact, refuse to consider or disregard the wife's evidence? The appellants submitted that the first point was supportive of the appellants' case and would be determinative. The evidence overlooked was about the events of 5 July 2008. The evidence rejected was related to the coup claim. The submission continued: "Further the reasoning used in the Coup Claim supports the corroborative evidence about the incidents of 5 July 2008 because the claim about the incidents of 5 July 2008 and the fact that the Coup Claim was not from the beginning led to the rejection of the Coup Claim. The Tribunal cannot use contradictory reasoning. Points 2-4 need not be laboured as they are satisfied in the current case." 25 The Minister submitted that the Tribunal expressly considered the Statutory Declaration at [22] and [39] of its reasons. The submission before the primary judge was that the Tribunal failed to take into account the Statutory Declaration at all. The argument now put was that the Tribunal's reasoning concerning the Statutory Declaration at [39] was defective. The Minister submitted that this argument failed for the same reasons as ground 4: it was just seeking merits review. The Tribunal was entitled, the Minister submitted, to reject the claims in the Statutory Declaration as they contradicted its findings about the first appellant. The Minister referred to SZNSP at [23]-[40] and [50]. 26 In supplementary written submissions dated 17 August 2016 filed by leave the Minister submitted that there appeared to be no authority directly considering the meaning of the expression " … the nature, content and quality of the corroborative evidence … " in SZNSP. The Statutory Declaration was referred to by the Tribunal at [21], [22] and [47] of the Tribunal's reasons and was expressly considered by it at [39]. It was also referred to during the Tribunal hearing. The deponent of the Statutory Declaration was not a witness before the Tribunal. Moreover the Statutory Declaration noted that the deponent was a "close relative" of the first appellant. While these were not matters specifically adverted to by the Tribunal, they did not support the contention that the Tribunal erred in considering the Statutory Declaration at [39] within the principles in SZNSP at [36]. Rather, having considered the Statutory Declaration and referred to it at the hearing, the weight to be given to it was a matter for the Tribunal. The Minister referred to MZYUV v Minister for Immigration and Citizenship [2013] FCA 498 at [25]. The Minister submitted the Tribunal was entitled to reject the statements in the Statutory Declaration that the first appellant was taken by the military on 5 June 2008 and interrogated, given its findings as to the truth of the appellants' claims to this effect, even though the Tribunal did not find that the Statutory Declaration was fabricated. That approach was consistent with SZNSP and WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 at [16].

Consideration 27 The supplementary notice of appeal, dated 4 June 2016, the relevant terms of which I have set out at [11] above, is not, in my opinion, drawn in accordance with the Federal Court Rules 2011 (Cth). A notice of appeal for an appeal from the Federal Circuit Court of Australia is required by r 36.01(2)(c) to state briefly but specifically the grounds relied on in support of the appeal. The notice of appeal should not include argument and submissions. Neither that rule nor Form 121 contemplates prolixity or a merger of grounds and submissions or argument. Further, it is entirely inappropriate to state in relation to a Tribunal's reasons that a reason was "falsely stated" by it or that it "used the excuse". In my opinion, ground 1, for example, could and should have been framed in the following terms: The primary judge erred in failing to hold that the Tribunal breached s 425 of the Migration Act 1958 (Cth) and thereby made a jurisdictional error by impeding the first appellant from giving evidence about his central claim, being that he faced threats to his life resulting from his knowledge of a meeting where a conspiracy to stage a coup in Fiji was discussed. I would not remark on these matters if the appellants were self-represented, but the supplementary notice of appeal states that it was prepared by, and is signed by, counsel.

Ground 1 28 In my opinion, there is no substance in this ground. A reading of the transcript does not show that the Tribunal impeded the first appellant from giving evidence. Neither, in my opinion, does the transcript show that the Tribunal impermissibly pressured the first appellant. I see no error in the conclusion of the primary judge, at [53], that it is apparent from the transcript as a whole that the presiding member took pains to attempt to understand the first appellant's evidence about the meeting and to draw out the critical points of that evidence. 29 The present appellants had their solicitor present at the hearing before the Tribunal. When the Tribunal asked the first appellant to summarise what happened the solicitor said that it was a short meeting and, in effect, it would not take long for the first appellant to finish what he wanted to say about it. The Tribunal, at page 22 of the transcript, appears to have accepted this submission. 30 For these reasons this ground fails. 31 I add that in my opinion it is quite inappropriate, at least in the absence of a claim of actual bias or actual bad faith on the part of the Tribunal, to advance submissions, as was done here on behalf of the appellants, using language such as the Tribunal did something "on the pretext". Similarly, in the absence of a claim of actual bias or actual bad faith on the part of the Tribunal, a submission should not be advanced, as was done here on behalf of the appellants, that a "justifiable explanation for that would be that the Tribunal must have felt uncomfortable listening to the evidence because it was going against the position that the Tribunal was going to take, that is the Tribunal was going to dismiss it anyway and it had no patience to listen to that evidence." In the present case there is no basis for such a submission. 32 There is also illogicality in the submissions on behalf of the appellants in relation to this ground by confusing what was done by reference to the transcript with what the Tribunal later found in its reasons. Further, if the Tribunal had formed the view that a particular witness was going into unnecessary detail, then it was entitled to say so, not knowing at that point what the course of the hearing would be. In any event, the Tribunal did not take issue with the amount of detail given to it but compared that amount of detail with the lack of detail in respect of this claim before the first Tribunal.

Ground 2 33 In my opinion this ground fails in the circumstances of this case. The delegate, in the context of the then applicant not attending the scheduled interview, noted what an earlier Tribunal had said in 2011, highlighting specific concerns in relation to the credibility of claims made by the then applicant, including his political activity, the motivation for his claimed past arrest, the reason for his termination from government employment, his claims of ceasing work and moving house to avoid military surveillance, and his ability to depart Fiji despite the existence of a "watch-list". 34 The High Court held in SZBEL at [35] that: The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 35 In the present case, the Tribunal said on a number of occasions words to the effect of "I am going to think very carefully about the claim and your explanations." It is also significant, as SZBEL shows, that there could be no reasonable assumption on the part of the present appellants that favourable findings by the delegate would stand as there were no such favourable findings. 36 I repeat the comment that I made in considering ground 1 which is that in the absence of a claim of actual bias or actual bad faith on the part of the Tribunal it is quite inappropriate to make a submission, as was done here on behalf of the appellants, that "the Tribunal was just managing time to give an appearance of a hearing" or "that it appeared that the Tribunal just wanted to get over the hearing."

Ground 3 37 In my opinion, the statement by the Tribunal that, on the evidence before it, it was not satisfied that the photograph of the second appellant had or could come to the attention of the Fijian authorities, is not the making of a finding without evidence but is an expression of opinion by the Tribunal about the state of the evidence before it. 38 It was not in dispute that there was no evidence that the photograph had come to the attention of the Fijian authorities. I would construe the words "could come" to the attention of the Fijian authorities as meaning that there was no evidence that it would come to their attention. As Wu Shan Liang at 271-272 requires, the language of the Tribunal is to be construed beneficially, that is, where possible, to give a sensible meaning to the words used by the Tribunal. On judicial review the Court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." In my opinion, the Tribunal was not making a statement about the possibilities of access to a photograph on the Internet. 39 I reject the submissions on behalf of the appellants that the primary judge was doing anything more than construing the reasons of the Tribunal in this respect. Contrary to the appellants' submissions, the primary judge was not attributing something to the Tribunal which it did not say but construing what the Tribunal did say. It follows that, contrary to the submission on behalf of the appellants, the primary judge was not impermissibly reviewing the merits. This ground fails.

Ground 4 40 In my opinion, this ground misreads the Tribunal's reasons. The Tribunal's expression "in consideration of the evidence as a whole" should not be used to establish that there was some jurisdictional error in making individual findings. For example, the Tribunal at [39] considered the Statutory Declaration in the context of its concerns about the first appellant's credibility. Another example is at [37], where the Tribunal said it was difficult to accept that the first appellant was so overwhelmed at the earlier hearing to the point of forgetting to discuss a central claim and its details (including all names), which were then recalled extensively in the course of the present Tribunal hearing seven years later. 41 I should not be taken as saying that the use of an expression "in consideration of the evidence as a whole" or similar expressions mean in every case that the Tribunal has considered the evidence as a whole. It may be, in a particular case, that the proper inference to be drawn from the Tribunal's reasons is that particular material has been overlooked. In the present case, however, the expression seems to mean no more than that the Tribunal was looking at the broad picture presented by the material before it. 42 I reject as misconceived the submission on behalf of the appellants that sequential reasoning on the part of the Tribunal demonstrates that the expression "in consideration of the evidence as a whole" was "hollow, baseless and unreasonable". 43 I see no error in the conclusion of the primary judge in relation to this ground, albeit the rejection of this ground was implicit in the acceptance by the primary judge of the Minister's submissions on this ground. 44 As with my observations in relation to ground 1 and ground 2, in my opinion it is quite inappropriate, in the absence of a claim of actual bias or actual bad faith on the part of the Tribunal, to submit, as was done here on behalf of the appellants, that the use by the Tribunal of the expression "in consideration of the evidence as a whole" was an "excuse" or that Tribunal's reasons were a "ploy to avoid dealing with individual aspects of the claims."

Ground 5 45 I accept that the primary judge did not deal with this ground beyond saying, at [60], that he accepted the Minister's submissions on what had then become ground 6 (which corresponded to ground 5 addressed at the trial). Counsel for the Minister accepted in oral submissions that this was so. I also note that ground 6 before the primary judge stated that the Tribunal "made jurisdictional error by not taking account of the evidence of a critical eye witness to incident of serious harm", referring to the Statutory Declaration of Mr V when that ground was plainly untenable because the Tribunal expressly referred to that evidence and stated that it had considered it. 46 The appellants submitted that because the primary judge did not deal with this particular ground, if this Court dealt with it the Court would be exercising jurisdiction it did not have to review the decision of the Tribunal directly. The appellants referred to s 476A of the Migration Act. The appellants submitted that the Court's jurisdiction was limited to specific topics identified therein. The appellants referred in support of this submission to SZKOP v Minister for Immigration and Citizenship [2007] FCA 1650 (SZKOP); Minister for Immigration and Citizenship v SZKJT [2009] FCA 984; 111 ALD 562 (SZKJT); WAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 193 (WAAC); SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (SGDB); and to SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 (SZFNX). 47 In my opinion, this Court is in a position to deal with this ground rather than remitting it. Section 476A of the Migration Act is not directed to whether or not the Federal Circuit Court has or has not dealt with a particular ground but concerns where this Court has original jurisdiction in relation to a migration decision and limits the circumstances in which it has such jurisdiction. The authorities cited by the appellants are not authority for the proposition that this Court on appeal may not determine an argument or ground that has not been decided by the Federal Circuit Court. Instead, this Court has a discretion whether or not to do so. The appellants' argument is, in my opinion, inconsistent with the terms of s 28 of the Federal Court of Australia Act 1976 (Cth) which provides that the Court may in the exercise of its appellate jurisdiction, amongst other things, give such judgment, or make such order, as, in all the circumstances, it thinks fit. If it had no discretion it would be odd that nevertheless the Court could, in certain circumstances, deal with a ground that had not been argued before the lower court at all. That the Court may do so is well-established. In substance, that is what has happened in the present case where the ground has changed from the Tribunal having erred in not taking any account of the Statutory Declaration of Mr V, to a ground that the Tribunal erred in not adequately take into account that Statutory Declaration. 48 Turning to the authorities on which the appellants relied in this respect, and dealing with them in chronological order, in SGDB, at [23]-[24], Mansfield J did not proceed on the basis that he was bound to remit the matter to the Federal Magistrate but considered whether, in the particular circumstances of the case, it was appropriate for him to determine the application himself, exercising the appellate jurisdiction of the Court. 49 In WAAC, Carr J, at [35], followed the course taken by Mansfield J in SGDB and for the same reasons. Carr J referred to a then recent decision of the Full Court, NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 (NADH of 2001), where that Court said, at [4]: It is not in issue that the primary judge erred in principle by incorrectly applying the law because of a mistaken view of the scope of s 474 (though plainly only because the meaning and scope of the section had not then been clarified by the High Court). This Full Court is being invited to consider at length and in detail the reasons of the Tribunal, the material advanced by the appellants to the Tribunal and the transcript of the hearing before the Tribunal and to apply the law determined by the High Court. It was not a task undertaken by the primary judge though, in our opinion, it is a task more appropriate to be undertaken by a single judge rather than a Full Court. In these circumstances, in our opinion, and in the face of a conceded error of construction by the primary judge, we consider we should exercise the power conferred by s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) to remit the matter, though we accept that we could also adopt the course of hearing and determining the entire appeal and deal with all issues sought to be raised. The approach of remitting the matter, which is opposed by the respondent, is not inconsistent with the observations of Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Mauntz (2000) 203 CLR 172 at [23] that our powers as an appellate court are exercisable only where the appellant can demonstrate that the order of the primary judge is a result of some legal error. As noted earlier, the order of the primary judge in this matter was a result of a misapplication of the law resulting from a misconstruction of s 474 with consequential failure to consider whether the Tribunal's decision was infected by jurisdictional error. Indeed, that submission (that there was jurisdictional error) was not put below (for obvious reasons) as we understand the course the proceedings took before the primary judge. (Underlining added.) In my opinion, the present submission on behalf of the appellants is directly inconsistent with what was said by the Full Court in NADH of 2001. The position was summarised in VAAW v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 259 at [8] as follows: Full Courts have sometimes remitted (as in NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19; NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25; SBBG v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 281) and have sometimes decided for themselves (as in NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31; NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33; SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90) the question whether there was jurisdictional error. The appropriate course to take depends on the circumstances of the particular appeal, including the nature and extent of the evidence to be considered and whether there is an arguable prospect of success. 50 SZKOP is not authority to the contrary. Gyles J was there dealing with an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review for failure to raise an arguable case for relief. It was in that context, where the lower court had given reasons which were not such as might be given on a final hearing, that Gyles J considered, at [13], that the most economical course would be for the matter to be returned to the Federal Magistrates Court and dealt with as if there had been no summary dismissal of it. 51 In SZFNX, the circumstances were that the appellant, on application for constitutional writs in the Federal Magistrates Court, alleged fraud by his migration agent but the Federal Magistrate made no factual findings as to fraud because, on the state of authority at that time, third party fraud was immaterial to judicial review. There was then a subsequent High Court decision, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189, to the effect that fraudulent conduct of a migration agent could be relevant to judicial review of a tribunal decision. It was in those circumstances that Besanko J held that he should not go so far as to conclude that on no possible view of the evidence before the Federal Magistrate could fraud be established and thus he was satisfied that the circumstances were such that a rehearing of the application was necessary. 52 Lastly, in SZKJT again it was found that the Federal Magistrates Court erred (through no fault of its own but because of subsequent High Court authority) in its finding of jurisdictional error. The Minister argued that the matter should not be remitted to the Federal Magistrates Court because it was plain that the ground on which the applicant had relied before that Court was not sustainable. Lindgren J said, at [31], that it was not appropriate that in disposing of the appeal in its appellate jurisdiction, this Court should deal with those grounds for the first time in the exercise of its original jurisdiction. 53 For these reasons, I reject the appellants' submission to the effect that this Court has no power or jurisdiction to deal with a ground where the lower court has not dealt with it. The Court has a discretion in those circumstances whether or not to remit the matter, and the manner in which that discretion will be exercised will depend on the particular circumstances of the case. This will include whether the Court is in a position to make any necessary factual findings while affording procedural fairness to the parties, and whether the Court may conveniently do so where constituted by more than one judge. 54 In the present case there is no difficulty with the Court dealing with the ground that the Tribunal made a jurisdictional error in the manner in which it dealt with the Statutory Declaration of Mr V. The resolution of the ground depends only on the material before the Tribunal and the way in which the Tribunal dealt with that material. I therefore turn to the substance of ground 5. 55 In the present case, the Tribunal should not be taken not to have considered the Statutory Declaration of Mr V until it had reached [39] of its reasons. So to construe the reasons would be to fall into the error of assuming that, because reasons are expressed sequentially, no consideration has been given by a decision-maker to particular material until the point in the reasons where that material is mentioned: see S20 per Gleeson CJ at [14]; cited with approval in Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43] and in Nweke v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 79; 136 ALD 235 at [23]. 56 The Tribunal formed the view that the first appellant was a low-level supporter of the United Fiji Party (the SDL). It considered the first appellant's claim that, accepting that low-profile supporters were not likely to be harmed, he feared harm because of his close association with Mr N who was a high profile SDL member. The Tribunal found that Mr N had been investigated by the Fiji Public Service Commission and disciplined in relation to conflict of interest and the Tribunal was satisfied that the actions of that Commission appeared to have been appropriate. The Tribunal also referred to allegations against Mr N by the military of misuse of public money and Mr N not being convicted. The Tribunal found that Mr N had accepted a redundancy and that he was not disciplined or found guilty of sending anti-government statements. 57 The Tribunal then rejected the claim, referred to as a central claim, that the first appellant was a witness to a coup plot. The Tribunal did not accept that the first appellant was of any interest to the Fijian authorities on the basis of any alleged plot and said that it was satisfied that the first appellant had fabricated those claims in order to enhance his claim for a protection visa. 58 The events of 5 July 2008, the subject of the Statutory Declaration, were said by the first appellant to concern what he knew about Mr N. The Tribunal considered them also in light of what it had found to be the fabrication of the claim by the first appellant about being involved in a plot. It is to be noted that the alleged plot also involved Mr N. Thus, the Tribunal did not accept the premise of the first appellant's version of events in relation to 5 July 2008, that premise being that the military wanted to get information about Mr N, even though he had been found not guilty, because they wanted to frame him. In light of those matters in particular, the Tribunal had regard to, but discounted the truth of, the matters in the Statutory Declaration. 59 Thus, although the Statutory Declaration was by a retired police officer who said he was an eyewitness to the assaults on the two appellants, husband and wife, by soldiers on 5 July 2008 and the taking away of the first appellant by those soldiers, the Tribunal discounted it because it had rejected the basis of the claim. 60 In my opinion, the submission that the Tribunal failed to take account of, or failed adequately to take account of, the Statutory Declaration must be rejected: the Tribunal expressly referred to the contents of it, at [22], and, at [39], expressly stated that it had considered the Statutory Declaration. 61 Contrary to the appellants' submission, no relevant distinction appears between the rejection by the Tribunal of the Statutory Declaration in this case given its concerns about the first appellant's credibility and the reasoning in S20 of McHugh and Gummow JJ at [49]: … it cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. 62 In my opinion, it has not been established that the Tribunal did not weigh the corroborative evidence in the balance with all the other evidence. 63 In SZNSP it was said: [36] When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant's claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant's account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. 64 In my opinion, it could not be concluded that the present Tribunal rejected the corroborative material out of hand. It is true to say that the Tribunal did not, so far as disclosed by its reasons, analyse the contents of the Statutory Declaration line by line. It is also true to say that another decision-maker might have formed a different view about the appellants' claims and the cogency of the Statutory Declaration. However, neither of those matters establishes jurisdictional error. In the present case the Tribunal had not accepted the claimed basis for the claimed events of 5 July 2008, the interest of the military in Mr N, and it followed, on that approach, that there was no need for a line by line analysis of the contents of the Statutory Declaration. 65 As to the appellants' reliance on MZYGC, as there stated, the questions arose in that case in the specific context of that case. In any event, as I have found, the Tribunal did not in fact refuse to consider or disregard the Statutory Declaration: see question 4 in MZYGC at [13]. 66 For these reasons, this ground fails. Conclusion and orders 67 The appeal should be dismissed, with costs. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.