ARW15 v Minister for Immigration and Anor (No.2)

[2015] FCCA 2596

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARW15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2596

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – protection visa – whether the Tribunal erred in making an adverse credit finding – whether applicant denied procedural fairness by way of adverse credit finding – whether Tribunal properly made a finding that a critical piece of evidence was forged – whether the Tribunal failed to properly make inquiries – reasonable apprehension of bias – no jurisdictional error identified – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 476

Applicant: ARW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1274 of 2015

Judgment of: Judge Street

Hearing date: 21 September 2015

Date of Last Submission: 21 September 2015

Delivered at: Sydney

Delivered on: 19 October 2015

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Solicitors for the First Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1274 of 2015

ARW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 seeking a Constitutional writ in respect of a decision of the Tribunal made on 13 April 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant arrived in Australia on 7 May 2013 on a business visa and departed on 20 May 2013.  The applicant arrived in Australia on another business visa on 19 October 2013 and lodged an application for protection on 12 November 2013.  The applicant was found to be a citizen of Nepal and his claims were assessed against that country. 

3. In the statement in support of protection, the applicant identified an alleged incident where his car was stopped and a ransom was demanded before they set him free.  The applicant described in his statement how he was blindfolded for the whole night so it was hard for him to figure out who they were.  They had taken him a particular forest and beat him terribly and threatened to kill him and his family.  The applicant did not know how many men there were because his eyes were tied.  The applicant refused to pay the ransom and eventually the beatings got so bad he agreed to give the assailants his father’s number.

4. The statement identified that they contacted his father and demanded an amount in a letter.  The statement records that to save the applicant’s prestige, dignity, reputation and life, his father gave them the demanded amount and that after they had received the amount they left him in the particular forest close to a city and ran away.  The statement recorded that the applicant was eventually freed by people collecting wood and showed him the way out to his car and he was able to come home.

5. The applicant’s statement says:

   We did not contact the authorities as we were worried they were also in coalition with the Maoists as most police are in Nepal.

6. The applicant then identified a second incident when he was coming back from his official way home from work when his car was stopped and he was asked to get out and threatened and a handkerchief was put on his eyes.  This is said to have occurred on 16 March 2010.  The applicant was taken to the jungle and denied their ransom and he describes being pushed down and falling down a hill and that he called his father and asked for money and that his father paid the ransom and they took the money and ran away. 

7. In that statement in support of the claim for protection, the applicant said on 12 November 2009 the national daily newspaper had published a news article about what had happened to him and that he had a copy of the article. 

8. On 10 December the applicant provided a number of documents, one of which purported to be a newspaper article made on 13 November 2009.  There was also provided to the Tribunal other newspaper cuttings, letters regarding donations, receipts and cheques for RS200,000.  The delegate refused the application on 16 April 2014 and the applicant lodged an application for review on 14 May 2014. 

9. On 30 January 2015, the applicant was sent an invitation to appear at a hearing to be held on 31 March 2015, consistent with the statutory regime.  The applicant attended the hearing on 31 March 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by a migration agent.

10. The Tribunal identified the nature of the issues that were raised in respect of protection and relevantly said:

    10. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fills the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The Tribunal summarised the applicant’s claims and also the submission received on 24 March 2015.  Relevantly, the Tribunal referred to the documents that had been provided by the applicant prior to the decision of the delegate, relevantly as follows:

    ·Copy of original and translated newspaper article from the Metro Post National Daily, dated 13 November 2009, which states in part that the applicant 'has been given extreme torture because of the donation. In the course of returning from [X] to his home [Y] in his private car on November 10, at around 7 o'clock, he, the professional player, was kidnapped by two cardres of the Communist Party of Nepal Maoist, from [A] of [B] District and asked for Rs.200,000 as a ransom. After the person did not obey to give donation, he was blindfolded with a black cloth for the whole night, kept him under the control and the next night he was taken to the nearby forest of [F] and beaten up and threatened to be killed. He was released on November 12, after his family members submitted the ransom amount of Rs.200,000.'

12. The Tribunal identified the principles to be applied in relation to assessment of credibility and relevantly noted that the Tribunal had sought to adopt a liberal approach outlined in the cases referred to.  At the commencement of the hearing, the Tribunal relevantly said:

    The purpose of the hearing is for you to give evidence in your case.  It’s also an opportunity for me to obtain the information I need to make my decision.  I will ask you questions about your claim.  I will also discuss with you any concerns I have about the case.  This is important for me to do so that you have the chance to respond and comment on those concerns. 

13. The Tribunal identified what occurred at the start of the hearing in para.40 as follows. 

    40. In the early part of the hearing, the Tribunal sought to explore with the applicant the various difficulties he had encountered as a result of his political activities, leaving aside the abduction events of2009 and 2010 and the donation demand of 2013. The Tribunal, in particular, asked the applicant on several occasions whether he had experienced any instances of actual physical harm in addition to what happened in 2009 and 2010.

14. The Tribunal identified concern in respect of information that was provided for the first time before the Tribunal had not been earlier raised as follows:

    45. … This was information provided for the first time to the Tribunal and was not raised as part of the original Protection visa claims or in the interview with the delegate of the Minister.

15. The Tribunal was critical of the applicant’s evidence as identified in paras.50 through 53:

    50. Despite being given a number of opportunities to articulate instances of physical harm in the Tribunal hearing, the applicant referred only to threats being made. It was only when prior claims of physical harm were referred to that he agreed that these took place. The Tribunal draws an adverse inference from the fact that information about physical altercations in 2012, in July 2013 and in the Terai were not provided at an early stage of the applicant's claims. The applicant also gave inconsistent evidence in the hearing as to whether there was physical harm from the YCL in the incident in 2012. While the Tribunal is prepared to accept that an incident took place involving the applicant's cadres and the YCL in [L] village in 2012, it is not satisfied that the applicant was physically assaulted.

    51. The Tribunal is satisfied that there was an incident in July 2013 where there was a dispute, possibly involving physical altercation between cadres of the applicant and the Maoist District Chairman. The Tribunal is not satisfied that the applicant actually attacked the District Chairman.

    52. The Tribunal is not satisfied that the applicant was attacked in the Tearai region of Nepal.

    53. Leaving aside the 2009 and 2012 abductions, the Tribunal is not satisfied that the applicant has been involved in any incident during the course of his political activities where he suffered physical harm. In making this assessment, the Tribunal acknowledges that violence in Nepal has occurred between UNPN-M and the UCP-UML and their youth wings, but the Tribunal does not consider that the applicant has been caught up in this violence directly, other than the incident in 2012 where his cardes attacked a Maoist District Chairman.

16. The Tribunal referred to the evidence concerning donations and found that some payments had been made and although the Tribunal accepted that it was possible that threats to stop the applicant’s political activities and join the Maoists might have been made, the Tribunal said that in the applicant’s 30 years in politics, those threats were never carried out. 

17. The Tribunal then turned to the events in 2009 and 2010 involving the alleged abductions.  In that regard, relevantly, the Tribunal said:

    58. In terms of the 2009 event, the applicant indicated that the letter of demand was delivered to his home on 6 November 2009. The Tribunal asked the applicant if any deadline for payment was provided. The applicant initially, in the hearing, said that the Maoists phoned him the next day, and said that the money needed to be paid within a week. The Tribunal asked the applicant if he gave any indication as to whether he would pay and the applicant said that he did not, he kept silent. Later in the hearing, the applicant said that it was in fact his father who received the phone call the next day, indicating that payment needed to be made within a week.

    59. The applicant confirmed that the abduction took place on 10 November 2009. The Tribunal noted to the applicant that this was well less than a week after the request had been made, and wondered why the applicant would be kidnapped if the time period to pay the money had not passed. The applicant responded that he was under a lot of pressure due to the organisation of a work related event and, therefore, he was in a prime position to be taken advantage of.

    …

    62. In relation to the donation request and the abduction of March 2010, the applicant said that, on this occasion, he was given a couple of days to pay the money. He said that his car was stopped by people who flagged him down. The applicant had indicated to the Tribunal that he had also been flagged down in the first abduction. The Tribunal asked the applicant why he stopped when flagged down on the second occasion, given that the danger in doing so would have been obvious, given that he had received another written demand, and given what had happened to him on the first occasion. The applicant indicated that there were four or five people flagging him down.

    …

    65. In relation to the first abduction in 2009, the Tribunal asked the applicant about the extent to which he told others about the event. The applicant said that he did not report the issue to the police, or discuss what had happened with anyone. He was very conscious of not wanting to create further difficulty by telling anyone about the event. The applicant did not seek medical assistance for the same reason.

    66. The Tribunal pointed out to the applicant the document which he had provided to the Department which purports to be a newspaper article from the Metro Post National Daily dated 13 November 2009, which provides a detailed account of the applicant's kidnapping. The Tribunal asked the applicant how it could be that this newspaper item would appear if the applicant had not provided this information to anyone. The applicant indicated that perhaps the people who had found him in the jungle, or the Maoists, had provided this information to the newspaper. The Tribunal noted that the level of detail in the report would make it unlikely that it could have been provided by those that found the applicant. The Tribunal expressed scepticism that Maoists would publicise such an event.

    67. The Tribunal indicated to the applicant that independent information makes clear that forged documents are readily obtainable in Nepal. Given that there seemed no reasonable basis that details of the event could have come into the newspaper's hands without the applicant providing this information to others, and that he was categorical that he did not do so, the Tribunal needed to consider the genuineness of the newspaper report, and in turn the credibility of the applicant's account of the abduction, and generally.

    68. The Tribunal noted to the applicant that it had made enquiries of the Australian Embassy in Nepal seeking to obtain a copy of the original newspaper to verify that the article had in fact appeared. The Post in Kathmandu indicated that the newspaper had ceased publication, and that they were not able to access a copy of the relevant edition. The Tribunal noted to the applicant that it drew no adverse inference from the fact that the newspaper had stopped publication. The applicant indicated that the Tribunal should make enquiries of the Information Department in Nepal to access the original of the newspaper item. The Tribunal indicated that it had made all the enquiries it thought reasonable to make.

    69. The applicant said that the translation of the article was made of what is contained in the article, not what he told the translator to translate. The applicant said that he had not lied in any of his evidence or presented false information and that everything he said was true.

    70. There are a number of difficulties and inconsistencies with the applicant's account of demands for payments of money and the 2009 and 2010 abductions. In relation to the 2009 abduction, it does not make sense that the applicant would have been abducted prior to the time given to pay the money. The applicant gave inconsistent evidence as to whether it was he or his father who was contacted by Maoists, in terms of when the money would be paid. The applicant gave inconsistent evidence as to whether he gave his abductors his father's phone number or if they already had it. The newspaper article provided by the applicant indicates that the applicant was released after two nights of being detained. In the applicant's other evidence, he was released after one night.

    71. In relation to the 2010 abduction, it seems to the Tribunal somewhat unlikely that the applicant would stop his car after being flagged down, given what happened to him in 2009. The applicant gave inconsistent evidence as to whether he was conscious or unconscious when his abductors contacted his father. It seems to the Tribunal unlikely that the applicant's father would have Rs.300,000 in cash lying around the house, although it accepts that this is possible. The applicant in the hearing said that ligament in his leg was torn whereas in his written statement it is indicated that his leg was fractured.

    72. The Tribunal is conscious that it should not make adverse credibility findings on the basis of picking evidence to pieces, acknowledging that human memory is fallible and inconsistencies can occur through reasons other than lack of credibility. The Tribunal acknowledges that a number of the concerns raised by the Tribunal are reasonably minor or tangential in nature. However, the Tribunal considers that it needs to very carefully scrutinise the applicant's evidence in light of the existence of the press report of 12 November 2009. The Tribunal can see no reasonable basis on which this document can be genuine, given the applicant's clear evidence that he told no one about the incident. The Tribunal can conceive of no reason why the applicant would not have disclosed that he had spoken to a journalist, if he had done so. The Tribunal therefore considers that the applicant has had the press report forged. The Tribunal considers that the applicant, in the Tribunal hearing, forgot that the press report had been provided and failed to tailor his evidence accordingly.

    73. That leads the Tribunal to have very considerable credibility concerns with the applicant's account this event. It also leads the Tribunal to take an adverse view of the applicant's credibility generally. Whist it is possible that the applicant has forged an account of events that actually occurred, the Tribunal considers this to be unlikely, particularly in light of the other inconsistencies and difficulties with the evidence noted.

    74. Considering all of the evidence, including the credibility issues in relation to the applicant's evidence about instances of physical harm other than the abduction attempts, the Tribunal is not satisfied with any of the applicant's accounts of him being extorted for money in either 2009 or 2010 or had been abducted and harmed.

    75. The Tribunal is not satisfied that the requests for donation letters or receipts provided are genuine and nor is the newspaper article of the 12 November 2009.

18. In relation to the donation request of May 2013, relevantly, the Tribunal said:

    79. Given the credibility concerns with the applicant's evidence already noted, and the ready ability to obtain forged documents in Nepal, the Tribunal does not accept the genuineness of the document provided. The Tribunal is not satisfied that a donation request of Rs 300,000 was made by the Baidhya group or that threats to kill were made associated with any demand for the payment of money.

19. In relation to the applicant’s claims, relevantly, the Tribunal found:

    95. …The Tribunal is not satisfied that the applicant was abducted and harmed by Maoists in 2009 and 2010.

    …

    97. While the Tribunal accepts that the very robust nature of Nepalese politics means that it is likely that the applicant has been subject to verbally intimidating behaviour, and perhaps threats of violence, the Tribunal has not been satisfied that there has been any attempt to carry out such threats over a very considerable period of time, including the most volatile period in Nepalese politics from about 1996 to 2006. The Tribunal has not been satisfied that there has been increased pressure against the applicant from the Baiyda group in the lead-up to him coming to Australia.

    98. The Tribunal considers the lack of past serious harm in respect of political violence suffered by the applicant in the past provides a strong foundation for assessing the real chance of harm to the applicant in the future. The fact that threats of harm have not been carried out against the applicant, that the applicant has suffered no serious harm as part of his political activities since the 1990s, and considering the easing of political tensions in Nepal, the Tribunal is not satisfied that, should the applicant resume his political activities on return to Nepal, there is a real chance he will suffer serious harm as a result of political violence due to the applicant's political opinion.

    99. … The Tribunal is not satisfied that these requests and payments rise to a level that would constitute serious harm. The Tribunal considers that requests for donations from the applicant, if he returns to Nepal, will repeat the patterns of the past. The Tribunal is not satisfied that there is a real chance that the applicant will be intimidated to pay donations to any extent that would constitute serious harm for the purposes of the Act. The Tribunal makes this assessment on the basis that the reason that the applicant will be targeted is due to his political activities and a perception that he is wealthy.

    100. The Tribunal has determined each of the applicant's claims relating to the Refugees Convention and concluded that under none of these claims does the applicant face a real chance of serious harm, for any of the reasons claimed or arising on the evidence. The Tribunal also considers the applicant's claims cumulatively. The Tribunal finds that, based on all the evidence before it, including the applicant's claimed past circumstances, and what is accepted of his current personal and family circumstances and profile in Nepal, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or otherwise satisfies the requirements of s.91R(1), for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Nepal in the reasonably foreseeable future and the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.

1. It was in those circumstances the Tribunal then turned to the issue of complementary protection and, relevantly, found:

   111. Considering the applicant's claims in their entirety, both singularly and cumulatively, the Tribunal is not satisfied that the applicant faces a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act. The Tribunal is not satisfied on the information before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, he faces a real risk of: being arbitrarily deprived of his life; the death penalty being carried out on him; being subject to torture; being subject to cruel or inhuman treatment or punishment; or being subject to degrading treatment or punishment for any reason claimed or arising on the evidence.

   112. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. In the course of the hearing before the Tribunal, the Tribunal explored the incident of the abduction, starting on p.14 which relevantly included:

   THE INTERPRETER: They left me in the jungle with my hands tied, and I was still, like, bonded. And in the morning, with the help of some local villagers who were coming to the jungle – with the help of them, they untied me, and I was able to come to my car

3. When asked about injuries the following exchange took place:

   MR McCOLLOUGH: So what were the extent of your injuries?

   THE INTERPRETER: My right ear drum was damaged and it’s the result of that beating that I’ve got no hearing now.

   MR McCULLOUGH: And anything else?

   THE INTERPRETER: They beat me on the head so it pains sometimes, even now.

   MR McCULLOUGH: Did you go to the hospital or seek medical assistance?

   THE INTERPRETER: No, I didn’t. I stayed behind because I was afraid I would be questioned by other friends so I just – I…

4. The applicant invited the Tribunal to carry out further analysis of or research in relation to the documents being fake and, relevantly said:

   THE INTERPRETER: In this case, I…myself…evidence. I have experienced what how – what…has happened and I have gone into depth and in your position, you can carry out your analysis at a surface level but I’m the one who has experienced and gone through…And in relation to the documents that has been submitted, I would request you to please seriously carry out your analysis or research because – and if you find it as fake documents, I’m ready to undertake any punishment that I will be given. And I will never lie or – or…falsely because I am a person who has always tried to walk in path of justice and fairness.

5. The Tribunal responded, identifying that inquiries had been made of the Australian Embassy in Nepal to try and track down the original of the newspaper to verify the article and that the particular newspaper was no longer being published and the embassy was not able to get a copy to verify the report.  Relevantly, the Tribunal said:

   MR McCULLOUGH: Right. I will say I’ve made inquiries of the Australian embassy in Nepal to track down the original of this newspaper to see – to verify the article. This particular newspaper is no longer published and the embassy was not able to get a copy of the original to verify the report.

   THE INTERPRETER: It has been happening in Nepal. Like, lots of newspapers have been publishing and you then they’re stopped. You can check with the press…

   MR McCULLOUGH: I’m not drawing any adverse conclusion based on the fact that the newspaper isn’t being published. So I’m drawing no adverse inference from the fact that the embassy in Nepal wasn’t able to track down the newspaper report. The other comment I’ll make about the translation you’ve provided of what you say is the press report is that it says that you were detained for two nights and you were released on November 12.

   THE INTERPRETER: You mean in the paper?

   MR McCULLOUGH: In the translation that you’ve provided of the newspaper report it says that you were kept for two nights and released on the 12^th of November, not the 11^th.

6. Towards the end of the hearing the Tribunal, relevantly, said:

   MR McCOLLOUGH: All right. Thank you for that. So that's really all the questions I want to ask of you. I have to go away and think about the credibility of what you've told me. I do have particular concerns about this media report. It's very puzzling how that could have come into existence. And it does wonder whether it has been concocted in a way to seek to validate your claims and that you've forgotten about that in giving your evidence today, because there just seems no way that that report could have come into existence. I don't accept that the Maoists or the people that picked you up could have provided that detail of information. I don't see what the incentive of the Maoists to provide information ..... press report would be.

   THE INTERPRETER: I was trying to ..... but they, like, not have done as well and - and the reporters don't always show their source of information for everything.

   MR McCOLLOUGH: Okay. Mr Kadatawa, do you have anything you would like to say?

   MR KADATAWA: ..... about this matter - this information is very true and the paper has been under the ..... so the information might not be available. But the proper place to find the information about this paper is information department in Nepal. They might have the ..... if it possible to find that.

   MR McCOLLOUGH: No. It's not going to be possible to do that. I made the inquiries I think are appropriate. So I need to assess the evidence on the basis of what has been provided and what has been said today.

   MR KADATAWA: So other - other issues - he has .....

   MR McCOLLOUGH: All right. Thank you. Well, thank you for coming in today and answering all my questions. So I go away and think about all the evidence and independent information and make a written decision, which you will receive in due course.

   THE INTERPRETER: ..... question about the document that I've submitted and I would like to say something about that. First of all, the dates might have been mismatched and other thing is that whatever evidence I have given and whatever I have said today is all true. And I have never lied anything to anyone for my own selfishness. And I assert that everything that has been given and said is true. And I would also like to request you to do a deep research on whatever doubts you have in relation to that. And please do not judge or decide on only by checking at a surface level. I would request you to go into a deeper level and do your research before you come to any conclusion.

7. There were further communications from the applicant which concluded with the Tribunal member saying: 

   MR McCOLLOUGH: All right. Thank you very much for those last words. And I will end the hearing now. Thank you. You're free to go. Thank you, Mr Kadatawa.

8. The grounds of the amended application are as follows:

   1. The Second Respondent made jurisdictional error in that it failed to accord the Applicant procedural fairness in relation to its critical finding on credibility at [72] that the Applicant had a press report forged.

   2. The Second Respondent made jurisdictional error at [72] by drawing a conclusion which was irrational or unreasonable.

   3. The Second Respondent made jurisdictional error by unreasonably refusing a request from the Applicant to obtain information which was important and obvious to potentially verify the authenticity of a newspaper report found by the Second Respondent at [72] to have been forged by the Applicant.

   3A. Further or in the alternative to 3 above, the Second Respondent made jurisdictional error by unreasonably failing to consider the exercise of a discretion to obtain evidence on a matter which the Second Respondent had indicated or considered would be fatal to the Applicant's case unless he was able to find evidence to support the authenticity of a newspaper report.

   4. The Second respondent made jurisdictional error by reason of a reasonable apprehension of bias in relation to the subject matter of a newspaper report submitted by the Applicant and its ultimate finding that the Applicant had had that report forged.

9. In relation to ground 1 the applicant submitted that there was a denial of procedural fairness in making the adverse finding on credibility. There was no suggestion that the Tribunal failed to comply with s.424A and it was accepted that the issue of the newspaper article potentially being forged was raised by the Tribunal with the applicant.

10. It was put on behalf of the applicant that the applicant had, in essence, been led into a trap that he had told no one about the newspaper article when, on the basis of the existence of the article, the Tribunal had reasoned that it must have come from the applicant and, therefore, the applicant must have lied and, therefore, the article was forged.  Paragraph 72 of the Tribunal’s reasons acknowledges the difficulties that can occur in relation to adverse findings of credibility.  It is not a fair summation of the inquiry conducted by the Tribunal on the transcript to suggest that the applicant was led into any trap.

11. The applicant clearly gave inconsistent evidence to the Tribunal in relation to what was clearly a significant allegation of an incident of abduction.  I find the Tribunal’s reasons in relation to credibility were not arrived at by any denial of procedural fairness.  The adverse findings on credibility were open on the material before the Tribunal.  The applicant was clearly well alive to the article which comprised part of the information conveyed to the department in December 2013 and also was identified in a statement provided at the time of the application for protection. 

12. The article does not identify who the source was, what the information contained and Mr Young maintained that, in those circumstances, it was not logical or rational to reason that the applicant’s denial of providing information thereby gave rise to the conclusion that the press report was forged.  Materially, and in coming to the finding about the press report being forged the Tribunal did not so confine itself and took into account the applicant’s evidence about the incident.  There was a logical basis for the adverse findings on the material before the Tribunal.  For these reasons, there is no jurisdictional error to be found identified in ground 1.

13. In relation to ground 2, the adverse finding as to credit was clearly open on the material before the Tribunal.  Ground 2 is not made out.  In relation to ground 3, it is clear that the applicant did invite the Tribunal to make further inquiry.  At no stage, however, did the applicant ask for an adjournment or seek an opportunity to put on further material.  It is also clear from the exchange between the applicant and the Tribunal that the applicant fully appreciated the contention that the document was a fake.  The only step the applicant sought to take was to invite the Tribunal to conduct further inquiries, notwithstanding that the Tribunal had already explained that it had taken steps to make inquiry and had done so by contacting the Australian Embassy and that the newspaper was no longer being published and that the embassy was not able to get a copy of the original to verify the report.  The reference in the applicant’s evidence to the information department in Nepal was not the identification of an entity that would clearly be able to verify the authenticity of the newspaper report. 

14. Moreover, it is clear that the Tribunal conveyed to the applicant as a matter of fairness that the Tribunal did not propose to take any further steps.  It was clearly open to the applicant to seek that opportunity for himself if he wished to, and to take further steps to try and demonstrate the authenticity of the newspaper report.  That was the very thing the applicant did not seek.  Rather, the applicant simply maintained the invitation that the Tribunal conduct further deep research into whatever doubts it might have.

15. The Tribunal did not refuse to conduct inquiry about the alleged press report being forged.  The Tribunal identified the source of the information that had been contacted in an endeavour to try and authenticate the press report and the cessation of that newspaper and the inability from the identified source to be able to identify the authenticity of the press report. 

16. The Tribunal had also raised with the applicant that the independent evidence establishes that forged documents are easy to obtain in Nepal.  In my opinion, there is no unreasonableness in the refusal of the Tribunal to make a further inquiry in the circumstances that it had already identified.  The refusal to take further steps where the newspaper was no longer in existence and when inquiries had already been made of the embassy in Nepal was not an unreasonable exercise of the statutory power of the Tribunal in conducting a review.  There is no jurisdictional error made out by reason of ground 3. 

17. In relation to ground 3A, there were a number of adverse findings made in relation to the applicant’s evidence and it cannot be said that this is a case where the press report alone was fatal to the applicant’s case.  For the reasons I have given it was clearly reasonable for the Tribunal not to make a further inquiry in the circumstances that had been identified.  The refusal to make further inquiry cannot be said to lack in evidence an intelligible justification and was proportionate in the circumstance of this case.  No jurisdictional error is made out by reference to ground 3A.

18. In relation to ground 4, the allegation of bias must be clearly alleged and strictly proven.  I do not accept that the exchange that took place in the transcript to which I have referred is conduct by reason of which a fair-minded observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits.  To the extent that the applicant relied on the adverse findings, adverse findings are not a ground upon which bias can be made out.

19. I do not accept that the adverse findings by the Tribunal are conduct by reason of which a fair-minded observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  Ground 4 is not made out.

20. The amended application is dismissed.

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

Associate: 

Date:  19 October 2015