16 But in case I am wrong, I will assume that each of the supposed facts in par 13 is a "particular fact". The next question is whether there was evidence to support these facts. There was evidence to justify the typewriter finding. The setting out and structure of each document is the same, as is the typeface. Although the letter "a" is not smudged in all cases where it appears, it is in many. The Tribunal put to the applicant its belief that the letters had all been typed on the same typewriter with a smudged letter "a", and records that he was unable to provide any explanation. In any event, there was no evidence to the contrary of the supposed fact, ie that the documents had not been typed on the same typewriter which did not have a smudged "a". There was evidence to support the finding that the translator of the Summons was not the person who translated the other documents. The Summons and the other documents themselves, and the comparison they provided, supported the finding. There was no evidence to support the third, fourth and fifth facts. The Tribunal made certain assumptions about how institutions of government worked. But there is no evidence that those facts did not exist. Accordingly this ground is not made out in relation to any of the supposed facts. On the view I have taken it has not been necessary to deal with the fourth Al‑Miahi step, namely whether the Tribunal's decision was based on the supposed facts or any of them.
17 The formulation of the approach to s 476(1)(g) as affected by sub‑s (4)(b) illustrated by Al‑Miahi and Jegatheeswaran involves inquiring whether there was evidence or other material to justify a finding of the particular fact in question. Other cases have asked instead whether there was evidence or other material to justify the making of the decision. See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] and Minister for Immigration and Multicultural Affairs v Li (2000) 176 ALR 66 at [45]‑[47]. On this approach the "decision" to which s 476(4)(b) refers is the decision the subject of s 476(1)(g), namely the judicially reviewable decision mentioned in the introductory words of s 476(1). In the present case the decision is the Tribunal's decision to affirm the delegate's decision not to grant the applicant a protection visa. If there is some evidence capable of supporting the Tribunal's decision, the s 476(1)(g) ground cannot be made out even if there is no evidence to support the finding of a particular fact: Li at [54] and Rahman v Minister for Immigration and Multicultural Affairs [2001] FCA 368 at [11]‑[13].
18 The Tribunal's decision was based on two primary findings ‑ that the applicant was not called up on 3 March 1997 as he claimed, and that his brother had not killed three soldiers. There was some evidence for each of those findings. In relation to the first, the Tribunal concluded that the applicant was not a credible witness and did not accept his claim that he refused to obey the call‑up notice of 3 March 1997. Country information disclosed that there was no call‑up of people such as the applicant on that day. The state of emergency legislation passed on 2 March 1997 did not support the applicant's claim that his call‑up resulted from that legislation. The legislation did not require a call‑up of non‑active military or reserve personnel. Nor did the enabling legislation of 3 March support the applicant's claim. It dealt only with those "presently in military service". The Tribunal therefore rejected the applicant's claim that he was called‑up in response to the "Law of Extraordinary Circumstances Number 8194".
19 There was also some evidence to support the Tribunal's finding that the brother had not killed three soldiers. The Tribunal referred to a range of country information showing that members of the armed forces "deserted or simply put up no resistance to civilians who attacked military installations". Based on its view that the applicant was not a credible witness and on the country information before it, the Tribunal did not think it plausible that had the brother been ordered to fire on unarmed civilians he would have responded by killing two officers and another soldier, particularly when all over Albania other conscripts were simply deserting or refusing to fire on civilians. Accordingly it found his claim to be untrue. Further, the point of the claim was to substantiate the applicant's case that if he were to return to Albania he would be killed, in accordance with the vendetta tradition, by the families of those shot by his brother. The Tribunal noted that the applicant's other brother had been living in Albania for much of the past three years, and had not been harmed. It concluded that the fact that this brother had not been harmed indicated that there was no blood feud threatening the applicant.
20 It is necessary now to deal with a specific submission that was at the forefront of the applicant's case on s 476(1)(g). This was that the requirement articulated in cases such as Indatissa, Al‑Miahi and Jegatheeswaran, that there be evidence that the supposed fact did not exist, is inapplicable to what counsel described as "unarticulated generalisations" such as the third, fourth and fifth supposed facts. Support for this submission was sought to be derived from Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352. The Tribunal in that case had not accepted the appellant's claim that he had been politically active since 1977/78 and concluded that this aspect of his claim was fabricated. It made this finding on the basis that in the appellant's initial submission he did not claim to have been politically active until a much later date. It found that such a significant part of his history would not have been overlooked in setting out the core of his claim if it had been true. The Full Court upheld the appellant's contention that a particular fact, namely that "the appellant was required to set out, in effect the whole of his case which bore upon the issue of his political persecution", did not exist. Counsel submitted that the Full Court upheld the appellant's contention that this fact did not exist on the basis that there was no evidence to support its existence without also requiring evidence to show that the fact did not exist. This, it was said, would appear to be inconsistent with Indatissa, Al‑Miahi and Jegatheeswaran, because what was described as the third step in Al‑Miahi was not insisted upon. Counsel then sought to reconcile Guden with the more recent cases by drawing the distinction noted earlier between a fact arising from evidence and an unarticulated generalisation which provides a justification for the drawing of an inference.
21 Attractively and persuasively though the submission was put by Mr Palmer, who appeared pro bono for the applicant, I am unable to accept that the third, fourth and fifth supposed facts are analogous to the supposed fact in Guden. The Guden fact was not susceptible of disproof by the calling of evidence. On the other hand, if it is the case that documents emanating from Albanian government departments are often typed on plain paper without an official letterhead, and are often not typed in Albanian script, evidence to that effect could have been led. Similarly, if persons are often summoned to Albanian courts by means of photocopied pro forma documents, that could have been the subject of evidence. The initial submission in which the applicant in Guden did not mention his early political involvement was his application for a protection visa. The Court pointed out that the only relevant question in the application form (which asked the applicant a number of questions he was required to answer) was "Why did you leave that country?". The Court was of the view that this required an answer which referred to the events that crystallised the decision to leave, or acted as a catalyst in the appellant making that decision. It did not call for an historical explanation going back over twenty years. The Court concluded (at [17]):