BCL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 2628

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2628

File number(s):	SYG 626 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	17 September 2019
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) Visa – previous procedural history – oral application for an adjournment refused – where the Tribunal made adverse credibility findings – whether those findings were logical, rational and open to the Tribunal – whether the Tribunal was affected by bias – no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(aa), 424A, 476
Number of paragraphs:	67
Date of hearing:	17 September 2019
Place:	Sydney
Solicitor for the applicant:	In person
Counsel for the first respondent:	Mr J Kay Hoyle
Solicitor for the first respondent:	Mills Oakley

ORDERS

SYG 626 of 2019

BETWEEN:

BCL19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The oral application for an adjournment is refused.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision in the Administrative Appeals Tribunal (“the Tribunal”) made on 17 February 2019, which affirmed the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Class XA) Visa (“the Visa”).

   Background

2. The applicant is a citizen of Fiji and his claims were assessed against that country. In substance, the applicant claimed to fear harm by reason of his sexuality and by reason of his appearance.

3. On 23 July 2014, the delegate found that the applicant failed to meet the criteria for the grant of the Visa. On 24 September 2015, a differently constituted Tribunal affirmed the decision. A decision of this Court set aside that decision and remitted the matter for reconsideration by the Tribunal. 

4. By letter dated 6 September 2018, the applicant was invited to attend a hearing before the current, reconstituted Tribunal. On 26 September 2018, the applicant’s representative provided submissions to the Tribunal. On 3 October 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was represented by his migration agent.

5. Following the hearing, the applicant was sent a letter under s 424A of the Act, giving the applicant an opportunity to respond to the clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision of the delegate under review. That letter included information concerning the applicant’s Facebook account, as well as information in respect of inferences that might be drawn in respect of the applicant’s ability to work, and that the applicant had been working in a Fiji in a resort or elsewhere. On 19 November 2018, the applicant responded to that letter.

   The Tribunal’s Decision

6. In its reasons, the Tribunal identified the background to the application with a summary. The Tribunal referred to the applicant’s details, taken from a departmental file, identifying him as being of Fijian ethnicity and being of the Methodist religion and having arrived in Australia on 4 December 2013. That arrival was under a Subclass 600 Visa, which was in effect until 4 March 2014. It was the day before the expiry of that visa, on 3 March 2014, that the applicant lodged the application for protection. 

7. The Tribunal summarised the applicant’s claims and evidence and the incidents that the applicant alleged had occurred. The Tribunal referred to the claims made at the interview by the applicant. The Tribunal also referred to the procedural history giving rise to the hearing before the current reconstituted Tribunal. The Tribunal referred to the submissions made to the Tribunal and also referred to country information. The Tribunal referred to what occurred at the hearing, including the Tribunal indicating that the Tribunal was prepared to accept the applicant was a homosexual. 

8. The Tribunal identified the evidence given at the hearing and turned to the credibility assessment of the applicant in respect of the incidents that the applicant alleged had occurred. The Tribunal found that the applicant had changed his evidence, had given inconsistent evidence and non-credible evidence concerning the details of his claims in numerous respects. 

9. The Tribunal addressed those credibility findings in respect of 11 different topics, effectively from page 353 to page 369 of the court book. Those reasons included addressing the information which was the subject to the s 424A of the Act letter, including the Facebook page of the applicant and the information by reason of which the Tribunal may conclude the applicant has been working in Fiji.

10. The Tribunal found that the applicant was not a witness of truth and that the applicant has fabricated and exaggerated accounts of evidence and claimed fears upon which protection claims are based. That adverse finding cannot be said to be illogical, irrational or unreasonable. It was a finding that was open to the Tribunal, for the comprehensive and detailed reasons given by the Tribunal.

11. The Tribunal was not prepared to accept the applicant’s difficulty with dates or memory as the reason for the significant difficulties in his evidence. The Tribunal also referred to the impact of being nervous in recounting past harm and trauma, but was not persuaded that this explained inconsistencies and lack of credibility in the applicant’s evidence, nor did the Tribunal accept that there was any difficulty as a result of the use of the English language in explaining the inconsistencies and lack of credibility in the applicant’s evidence. 

12. The Tribunal found that the applicant changed his evidence about relationships in Fiji because of attempts to associate false claims of harm with his relationships. The Tribunal accepted that the applicant has appeared effeminate from a young age and that he discovered he was a homosexual at a young age.

13. The Tribunal referred to country information. The Tribunal found that the applicant had exaggerated and fabricated the level of discrimination and taunts to which he had been subjected into more serious claims of harm and abuse to found a protection application. The Tribunal was not prepared to accept that the applicant has experienced any serious or significant difficulties as a result of his appearance or homosexuality

14. The Tribunal did not accept that the applicant considered he had a need to escape from Fiji, nor that he sought to harm himself as a result of ostracisation or abuse. The Tribunal did not accept that the applicant only has a minimal number of friends and support. The Tribunal found that the applicant has family, friends and relatives, and support from others. The Tribunal found that the applicant has a history of supportive friends and relatives, and that the assertion to the contrary is fabricated.

15. The Tribunal was not prepared to accept the applicant’s claims that he was unable to find a job because of his homosexuality or appearance or complications, as a result of the adverse credibility findings. The Tribunal was not satisfied that the applicant, on the basis of his appearance or sexuality or qualifications, faces a real chance of serious harm or real risk of significant harm for financial or economic reasons. 

16. The Tribunal referred to carefully considering the country information. The Tribunal stated that it understands that the applicant would prefer to stay in Australia, which offers a more LGBTI-friendly environment than in Fiji.

17. The Tribunal was not satisfied that the applicant faces a real chance of serious harm amounting to persecution in Fiji as a gay or effeminate-appearing man. The Tribunal referred to country information in respect of societal discrimination and found that the discrimination did not reach the level of serious harm or the definition of significant harm.

18. The Tribunal referred to assaults that have been occasioned on gay men, and was not satisfied that the applicant, in his particular circumstances, faced a real chance of being assaulted or seriously harmed as a gay man. The Tribunal found that the applicant does not face a real chance or real risk of being seriously or significantly harmed in homophobic violence.

19. The Tribunal also found that it was not satisfied that the applicant faces a real chance or real risk of requiring access to State protection. The Tribunal referred to having considered the applicant’s claims individually and cumulatively, and found that the applicant does not have a well-founded fear of persecution as a refugee, for any of the reasons put forward by him or on his behalf. 

20. The Tribunal then turned to the issue of complementary protection. The Tribunal referred to the applicant not having been truthful about his work experiences in the past. The Tribunal did not accept that the applicant has experienced any of the past harm or threats or adverse interest to the extent claimed by the applicant.

21. The Tribunal was not satisfied that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there was a real risk the applicant would suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision of the delegate under review.

    Before the Court

22. These proceedings were commenced on 15 March 2019. On 11 April 2019, a Registrar of the Court made orders fixing the matter for hearing today.

23. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood the nature of the hearing as explained by the Court. After completion of the evidence and confirmation that the applicant had received the first respondent’s written submissions and had read the same, the applicant indicated that he wanted to obtain a lawyer. The Court sought to explore with the applicant why he did not have a lawyer and the applicant said that he could not afford what the lawyer wanted.

24. The Court sought to explore with the applicant what the utility would be of granting an adjournment. The applicant provided no logical or rational basis upon which the Court could be satisfied that an adjournment would be of any utility in terms of obtaining a lawyer. No earlier notice of the adjournment application had been given by the applicant to the first respondent.

25. Given the procedural history, the Court is satisfied that the applicant has had a reasonable opportunity to obtain a lawyer, if he was able to do so. The adjournment application was opposed by the first respondent. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

26. The applicant also asserted that he was not prepared. Given that the hearing date that was given to this matter on 11 April 2019, the applicant has had ample opportunity to prepare for the hearing today. The Court is not satisfied that this further basis identified by the applicant warrants for an adjournment in the interests of the administration of justice. Accordingly, the Court made an order that the oral application for adjournment was refused. 

27. From the bar table, the applicant expressed disagreement with the Tribunal’s reasons in respect of the applicant’s Facebook page and also in relation to his employment. In this regard, the applicant’s submissions reflected disagreement with the adverse findings. Those adverse findings were open for the reasons given by the Tribunal. In its evidence and credibility findings, the Tribunal addressed, in detail, the applicant’s claims concerning a family funeral incident and its reasons for concern in respect of the applicant’s claim being inconsistent with his claimed past history and undermining his credibility.

28. The Tribunal found that the applicant had not adequately explained the different evidence at the hearing, and found that this undermined the applicant’s claim and credibility. The Tribunal found that the applicant had given inconsistent evidence about family members he said had assaulted him.

29. The Tribunal did not accept the applicant’s explanation in respect of why he changed his evidence in respect of the uncles allegedly involved. The Tribunal also referred to the applicant’s use of notes at the time he was giving his evidence and the explanation for that did not overcome the Tribunal’s concerns.

30. The Tribunal referred to the applicant’s changing evidence about his sex partners and treatment, and referred to the inconsistency between the applicant’s information provided at the interview and his evidence. The Tribunal also referred to the s 424A of the Act letter, and did not accept the applicant’s explanation, and found that further undermined the applicant’s credibility.

31. The Tribunal identified a further inconsistency in the applicant’s evidence, in relation to his claims of past harm and attitudes and treatment in the village. The Tribunal referred to what occurred before the delegate at the interview and found that it was inconsistent with the evidence that the applicant had given to the Tribunal. The Tribunal identified concern with the applicant’s changing evidence about where he used to reside in Fiji, which was also relevant to his claim concerning relationships and his reasons for moving.  The Tribunal referred to the application form being contrary to his evidence.

32. The Tribunal was concerned that the applicant’s changing evidence and failure to explain his changes in the evidence, as well as his claims that he forgot where he lived and when he lived in certain places, undermined his credibility in relation to his background and circumstances in Fiji. The Tribunal referred to further inconsistency, in relation to his claims of past harm, and referred to the s 424A of the Act letter and what had occurred at an interview with the delegate, and the change of evidence to the Tribunal. 

33. The Tribunal referred to the applicant’s claim that, because he was a homosexual, the only two jobs he could get were babysitting. The Tribunal found his evidence about these jobs was inconsistent. The Tribunal had concerns about the applicant’s changing evidence in regard to where he lived and how long he lived there, and how long he had specific babysitting jobs. The Tribunal referred to the applicant giving changing evidence in his written materials. The Tribunal referred to the applicant offering precise dates which then changed in his evidence and that the lengths of time also changed in relation to his residence.

34. The Tribunal referred to the applicant’s claims that he moved to a particular place to escape discrimination and harassment. The Tribunal found that he would have mentioned that to the delegate without prompting, if that is what had occurred. 

35. The Tribunal identified further concern in relation to the applicant’s inconsistent response as to why he stopped living at a particular location with a particular person. The Tribunal found that the applicant’s evidence about his opportunities in Suva was undermined by other inconsistent evidence about what he did when he first arrived in Suva.

36. The Tribunal referred to inconsistent evidence given by the applicant at the hearing in relation to where he lived. The Tribunal also referred to the applicant’s response to the s 424A of the Act letter, in relation to the alleged encountering of discrimination and abuse, as well as the explanation proffered by the applicant. The Tribunal did not accept the applicant’s explanation for the inconsistencies in his evidence. 

37. The Tribunal referred to concern that numerous details in relation to past events and harm were inconsistent and changing. The Tribunal referred to the inconsistent and changing evidence in respect of the Ice Bar incident. The Tribunal referred to the inconsistent and changing evidence of harm in relation to the alleged O’Reilly’s incident. The Tribunal referred to the inconsistent and changing evidence as to whether the applicant’s friends were beaten during the alleged O’Reilly incident. The Tribunal referred to the applicant’s inconsistent and changing dates of the O’Reilly incident. 

38. The Tribunal referred to the applicant’s changing evidence about when significant events occurred in order to respond to the Tribunal’s concerns. The Tribunal referred to the applicant’s changing evidence in relation to the Ice Bar incident, and in relation to the O’Reilly’s incident.  The Tribunal referred to raising with the applicant its concerns in respect of these significant changes and referred to the applicant’s response. The Tribunal referred to the applicant’s changing evidence about what he was wearing, and found that this undermined the credibility of the applicant, in relation to the credibility of the applicant generally, and in relation to the O’Reilly’s incident. 

39. The Tribunal referred to concerns in relation to the supporting evidence provided by the applicant from his landlord, a particular person. The Tribunal referred to the applicant giving inconsistent and changing evidence about his circumstances, friendships, activities and supportive relationships in Fiji and the applicant downplaying his acceptance in Fiji. The Tribunal found that the photos and comments on his publicly available Facebook page do not support his claims.

40. The Tribunal addressed, in detail, the content of the applicant’s public Facebook account and what occurred at the hearing in that regard. The Tribunal referred to the applicant’s response, in respect of photographs, that it is not really a big issue for these people at home. The Tribunal found that this undermined the applicant’s claims that homosexuality is a significant adverse issue in Fiji, that he is considered a pariah, and that he has suffered significantly and would continue to suffer significantly, given the way he is.

41. The Tribunal referred to the posts from friends of the applicant. The Tribunal referred to the s 424A of the Act letter in relation to the Facebook account. The Tribunal found that particular posts and photos appeared inconsistent with his claims that he was considered to be a pariah because of his apparent sexuality and that no-one in Fiji supports or accepts him other than gay friends.

42. The Tribunal referred to the applicant’s response and also the s 424A of the Act letter, in relation to the applicant’s being friends with his brother on the Facebook account. The Tribunal also referred to the s 424A of the Act letter in relation to the Facebook account, and referred to the applicant having many friends in his home village. The Tribunal referred to the applicant posting photos that appeared inconsistent with his claims that he is considered to be a pariah because of his appearance and sexuality and that people from his home village do not support him. The Tribunal referred to the applicant’s activity in Australia in respect of his Facebook page, and found that the Facebook account undermines the applicant’s claims in relation to an alleged lack of support and that he will continue to be a pariah.

43. The Tribunal also referred to the applicant’s evidence, in general, as not supporting the assertion that he was a pariah or rejected by society. The Tribunal also referred to the concerns arising on the applicant’s Facebook postings as being relevant, not only to his claim of being a pariah, but also to his claims relating to the O’Reilly’s incidents. The Tribunal referred to raising these matters with the applicant, as well as the s 424A of the Act letter, and the applicant’s response. In particular, the Tribunal referred to Facebook photos showing the applicant socialising.

1. The Tribunal identified further concern with the applicant’s claims in respect of his inability to work in Fiji. The Tribunal referred to the applicant’s evidence as well as the posts on the applicant’s Facebook page account, which was raised in the s 424A of the Act letter. The Tribunal did not accept the applicant’s explanations, and found that the applicant engaged in more work that he had disclosed. The Tribunal found that this undermines his credibility.

2. The Tribunal also took into account that the applicant gave changing evidence about when he knew he was gay in response to the Tribunal’s concerns. The Tribunal did not accept the applicant’s explanation in relation to his changing evidence.

3. The Tribunal’s reasons identified above were rational, logical and comprehensive. It was a proper matter for the Tribunal to explore the applicant’s claims and to assess the applicant’s credibility. Nothing said by the applicant from the bar table identified any jurisdictional error in the decision or review by the Tribunal.

   The Grounds

4. The Grounds in the originating application identify four different Grounds:

   Ground 1

   The Administrative Appeals Tribunal (“the Tribunal”) undermined the evidence of the applicant with regards to the stated harmful incidents faced by the applicant. Disregarding essential claims of the applicant constitutes jurisdictional error

   Particulars

   1.   The applicant had made very specific claims about the following incidents:

   a.   The O’Riley’s incident;

   b.   The Ice Bar incident;

   c.   Police brutality and custody

   2.   While the Tribunal accepted that the applicant was a homosexual, it failed to take into account the incidents that led to the specific claims. The incidents only occurred because the applicant was a homosexual. By discrediting the entire claims of the applicant, the Tribunal committed jurisdictional error.

   Ground 2

   The Tribunal made an erroneous finding that the applicant could not have experienced the harm he claimed to have suffered because of his homosexuality. Such a finding constitutes jurisdictional error.

   Particulars

   1.   The Tribunal had accepted the fact that the applicant was a homosexual. The Tribunal than stated at [D110] that while the Tribunal is prepared to accept that there is country information indicating that there are some anti-homosexual attitudes in Fiji, and there has been some violence and discrimination, and there have been times when state protection has not been of assistance and has been biased against homosexuals, the existence of such difficulties does not mean that the applicant has experienced what he claims.

   2.   Regardless of the overwhelming evidence of the applicant that stated the serious and significant harm faced by him on account of his being a homosexual, the Tribunal disregarded such evidence as if though the applicant had not experienced harm. Such an erroneous finding gives rise to procedural unfairness and constitutes jurisdictional error.

   Ground 3

   The Tribunal made an erroneous adverse finding by relying on assumptions, speculations and or miscomprehension of evidence and/or failing to consider the evidence.

   Particulars

   1.   The applicant had made explicit claims about how he was personified because of his appearance and sexuality; and that apart from a few gay friends, he had no other friends and that he faced discrimination in finding a job.

   2.   The Tribunal used the backdrop of the applicant's Facebook profile which was open to the public and made an erroneous finding that the applicant had 1600 Facebook friends [D88]. The Tribunal miscomprehended the evidence by stating that these people had accepted him as a Facebook friend, and therefore had not ostracised him. This shows the degree of remoteness the Tribunal had in determining the real claims of serious harm as opposed to brushing aside evidence on the basis of someone's public Facebook page.

   3.   The Tribunal made an erroneous finding based on mere speculation that the applicant was working for a resort [Dl15]. The Tribunal's failure to consider significant aspects of the applicant's claims in relation to unemployment and relying on a misconception of evidence was procedurally unfair and such action on the Tribunal's part constitutes jurisdictional error.

   Ground 4

   Having made the determination that the applicant was a homosexual, the Tribunal went to great lengths to discredit the applicant's evidence. The Tribunal acted in an irrational and illogical manner and was determined to find reasons to dismiss the application.

   The Tribunal forgot its statutory task was to determine the applicant's claims of serious and significant harm and went on a determined trail to make credibility findings against the applicant, This was procedurally unfair on the applicant. Such a failure to perform its statutory task gives rise to jurisdictional error.

   Particulars

   1.   It would have been obvious to a fair-minded observer that the Tribunal was committed to achieving a particular outcome and in doing so relied on evidence that was inconsequence or not fatal to the applicant.

   2.   The Tribunal misunderstood the concept of having sex partners and the concept of having a sexual relationship [D46]. This led the Tribunal to making a wrong finding against the applicant.

   3.   The Tribunal had an over-zealous and fervent aim to find all means to discredit the applicant. The Tribunal was hell-bent on establishing when the applicant knew he was gay. The Tribunal failed to comprehend the evidence of the applicant between what his preference, indecision and realisation was.

   4.   There are several instances where the Tribunal had picked on minor inconsistencies from the applicant and made that into major credibility findings. The Tribunal failed to consider that the applicant had stated that he had significant issues with remembering dates and had memory issues. More details will be provided in the amended application.

   Ground 1

5. The first Ground identifies a disagreement with the applicant’s claimed harm as a result of his homosexuality. The Tribunal’s adverse credibility findings were logical or rational and reasonable for the reasons summarised above in relation to the oral submissions. The applicant’s assertion of overwhelming evidence is an invitation to this Court to engage in merits review. It was a matter for the Tribunal to make findings of fact in respect of the applicant’s claims. 

6. On the face of the evidence before the Court, the applicant had a real and meaningful hearing before the current Tribunal. There is no basis to find that there was any procedural unfairness in the conduct of the review. 

7. Insofar as Ground 1 alleges that the applicant’s evidence in respect of particular harmful incidents was disregarded, the Tribunal’s reasons reflect a detailed consideration of each of the claims advanced by the applicant in the making of adverse findings that were open. The applicant’s assertions that the incidents occurred simply reflects disagreement with the adverse findings.

8. The suggestion of discrediting by the Tribunal implies an allegation of bias. No evidence has been adduced or conduct identified to support the claim of bias. The adverse findings by the Tribunal are not conduct by reason of which a fair‑minded lay observer might reasonably apprehended that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Tribunal approached the review with an open mind, reasonably capable of persuasion as to the merits. The comprehensive reasoning of the Tribunal addressing the applicant’s incidents and, including that the Tribunal accepted that the applicant is homosexual are inconsistent with the assertion of predetermination or bias advanced by the applicant. No jurisdictional error is made out by Ground 1.

   Ground 2

9. In relation to Ground 2, the applicant asserts that he experienced harm and that there was a disregard of the overwhelming evidence. This invites merits review and the Court is not permitted to review the merits.

10. The proposition that the Tribunal disregarded the applicant's evidence is not supported. On the face of its reasons, the Tribunal gave detailed consideration to the applicant's claims and evidence. No procedural unfairness has been identified in the conduct of the review. No jurisdictional error is made out by Ground 2.

    Ground 3

11. In relation to Ground 3, there is an assertion that the Tribunal relied on assumptions, speculations and miscomprehension of the evidence. No assumption has been identified that was an erroneous assumption not open on the evidence before the Tribunal. No speculation or miscomprehension of the evidence has been identified. The Tribunal clearly addressed the applicant's claims in respect of his appearance and his sexuality. 

12. The Tribunal also addressed, in detail, the applicant's Facebook account. The addressing of the applicant's claims is not a basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The assertion that the Tribunal's findings were speculation is inconsistent with the Tribunal's reasons, which reflect a logical and rational basis, on the evidence, for the adverse findings. 

13. There was no failure by the Tribunal to consider the applicant's claims in respect of unemployment. Rather, the Tribunal made an adverse finding that was open for the reasons given by the Tribunal, as summarised above.

14. No misconception of the evidence has been identified in respect of the applicant's claims concerning his working. Rather, the Tribunal made an adverse finding in relation to the applicant's claims in that regard. That adverse finding was open to the Tribunal for the reasons earlier given which took into account the response to the s424A letter. No jurisdictional errors are made out by Ground 3.

    Ground 4

15. In relation to Ground 4, this asserts that the Tribunal went to great lengths to discredit the applicant's evidence. That is an unfair and unfounded allegation on the face of the Tribunal's reasons. The Tribunal was duty bound to consider, in detail, the applicant's claims and evidence.

16. Further, it was a matter for the Tribunal to evaluate the applicant's credibility. There is nothing to support the contention that the Tribunal approached the matter in a manner other than with an open mind reasonably capable of persuasion as to the merits.

17. The assertion that the Tribunal acted in an irrational and illogical manner, and was determined to find reasons to dismiss the application, is a further unsupported allegation of bias. For the reasons already given, no such allegation of bias can be made out. The Tribunal's reasons reflect a logical and rational approach to the determination of the applicant's claims and an evaluation of the applicant's credibility.

18. The applicant's disagreement with the adverse findings has not identified any error by the Tribunal in its adverse credibility findings, which were open to the Tribunal for the reasons summarised above. There is no basis to find that the Tribunal engaged in any procedurally unfair process in the conduct of the review.

19. On the face of the material before the Court, the Tribunal complied with its statutory obligations. The assertion that the Tribunal was bent on achieving a particular outcome is unsupported by any evidence and, for the reasons earlier given, does not make out any ground of apprehended or actual bias.

20. Further, insofar as it is suggested that the Tribunal relied on inconsequential or insignificant matters, the Tribunal's reasons, as summarised above in response to the oral submissions, do not reflect identifying insignificant or inconsequential issues. The Tribunal gave logical and rational reasons that were open to it, as summarised above. No misunderstanding of the applicant's evidence has been identified. The assertion that the adverse credibility findings were a wrong finding simply invites merits review.

21. There is no proper basis for the assertion of an overzealous and vehement aim to undermine the credit of the applicant. That is an allegation of bias. That allegation is not made out. There is no evidence to support the same and, for the reasons already given, the adverse credibility findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

22. The proposition that the Tribunal picked on minor inconsistencies to make major credibility findings is, again, a disagreement with the adverse credibility findings. Those adverse credibility findings were not minor or insignificant matters. It was a matter for the Tribunal to determine the significance of the same in relation to assessing the applicant's credit.

23. Further, it is apparent that the Tribunal did take into account the applicant's explanation in respect of memory issues in evaluating the applicant's credit. The Tribunal was not bound to accept those explanations and gave logical reasons for rejecting the same as summarised above. No jurisdictional error is made out by Ground 4.

24. As the application fails to make out any jurisdictional error and there is nothing said by the applicant from the bar table identifying any jurisdictional error, the application is dismissed.

I certify that the sixty-seven (67) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 September 2019 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 8 December 2021