Bhuiyan v Minister for Immigration

[2019] FCCA 294

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHUIYAN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 294

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in failing to give the applicant information for comment that may have been part of the reason for affirming the decision under review in breach of s.359A of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal’s finding that the applicant was the same person as NK was legally unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 359A, 359AA, 474, 476

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: ABDUL KARIM BHUIYAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2308 of 2017

Judgment of: Judge Emmett

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Sydney

Delivered on: 11 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: Juris Australia Lawyers

Counsel for the Respondents: Mr David Hughes

Solicitors for the Respondents: HWL Ebsworth Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2308 of 2017

ABDUL KARIM BHUIYAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 23 June 2017 (“the Tribunal”), affirming the decision of a delegate of the first respondent (“the Delegate”) made 10 November 2016 cancelling the applicant’s Employer Nomination Scheme (Temporary Residence Transition) (Class EN) (Subclass 186) visa (“ENS Visa”).

2. The background and the Tribunal’s decision are accurately summarised in the written submissions of Mr David Hughes, counsel for the first respondent, as follows:

   “Background

   5. The applicant is a citizen of Bangladesh. Until 20 November 2016, he was the holder of a subclass 186 Employer Nomination Scheme Visa (visa), which had been granted on 2 July 2015. On 5 October 2016, a delegate of the first respondent issued the applicant with a notice of intention to consider cancelling the applicant’s visa under section 109 of the Migration Act 1958 (Cth) (Act): Court Book (CB) 7.

   6. In the notice, the delegate informed the applicant that the delegate considered that there had been non-compliance with section 101 of the Act, namely that the applicant had given incorrect answers in his visa application. The nub of the allegation was that the applicant had given answers which incorrectly failed to disclose that he had previously entered Australia under the name of Nazmul Karim. The basis for that view was identified (CB 9 [14]) as the result of an identity and facial comparison undertaken by the Department of Immigration & Border Protection (Department), which confirmed that there were indications that the applicant and a person named Nazmul Karim who had visited Australia were the same person.

   7. On 19 October 2016, the applicant responded through his migration agent, denying that he had ever used any other names or the name Nazmul Karim (the agent sent the email to the wrong email address, and it reached the delegate on 4 November 2016: CB 25).

   8. On 10 November 2016, the delegate decided to cancel the applicant’s Visa: CB 33. The Delegate’s decision recorded at CB 37:

   An identity and Facial Comparison analysis undertaken by the Department of Immigration and Border Protection has confirmed that there are indications that [the applicant] and Nazmul Karim (01/10/1977) represent the same person.

   …

   Based on the evidence available I consider that the visa holder is Nazmul Karim, has previously been known by this name, and has held a Bangladesh Passport in this name… Under the name Nazmul Karim, the visa holder previously applied for and was granted a subclass 572 Visa. He previously studied in Australia, and resided in Australia from 2007 to 2010.

   9. By reason of those findings, the Delegate found that the applicant had given incorrect answers, and had not complied with section 101 of the Act. The delegate decided to cancel the visa as a result.

   10. On 10 November 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. Together with the application, he provided a copy of the delegate’s decision: CB 61. The applicant was invited to attend a hearing, and he attended on 26 April 2017: CB 113, 123.

   11. The Tribunal gave a detailed account of the events of the Tribunal hearing at CB 170 [25] – 179. At CB 172 [43] – [44], the Tribunal showed the applicant a photo of himself and a photo of Nazmul Karim, and expressed the opinion that both photos looked like the applicant. The applicant responded that he agreed. The applicant gave an explanation that he and his stepbrother look so similar that they cannot be told apart. The Tribunal asked for details of the stepbrother: CB 173 [47].

   12. After the hearing, on 5 May 2017, the applicant made a statutory declaration: CB 128 – 129. In that declaration, the applicant identified that he had a half-brother named Nazmul Karim Bhuiyan.

   13. On 23 June 2017, the Tribunal decided to affirm the delegate’s decision. The decision record is at CB 166 – 186. Like the delegate, the Tribunal found that the applicant was the same person as Nazmul Karim, and so had given incorrect information in his visa applications: CB 182 [112] – [115]. The Tribunal’s reasons for that conclusion were as follows:

   (a) the identity and facial analysis undertaken by the Department confirmed that there were indications that the applicant and Nazmul Karim were the same persons: CB 181 [105];

   (b) the applicant gave inconsistent evidence about the degrees that he claimed to have been studying in Bangladesh at the time that Nazmul Karim was in Australia. Further, the applicant failed to provide any documentary evidence to show that he undertook the courses of studies that he claimed: CB 181 [106] – [107]. This led the Tribunal to find that “the applicant is not telling the truth about his education history”: CB 182 [109]; and

   (c) the Tribunal found the applicant’s evidence about his stepbrother and half-brothers to be vague, and lacking in detail: CB 182 [110].

   14. Having found that the applicant had not complied with section 101 of the Act, the Tribunal then turned its mind to whether it should exercise its discretion to cancel the visa. That part of the Tribunal’s reasoning is not challenged in the amended application. It therefore suffices to observe that the Tribunal decided that the visa should be cancelled, and therefore affirmed the delegate’s decision.”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Karp, of counsel.

2. By consent, the applicant was given leave to rely on the grounds in an Amended Application filed in Court at the hearing. Those grounds are as follows:

   “1. The Tribunal acted in breach of s.359A of the Migration Act.

   Particulars

   (a) Failure to give to the applicant clear particulars of information that would have been part of the reason for affirming the decision under review, those particulars being the alleged similarities between the facial features of the applicant and the person named as "Nazmul Karim" in the document entitled, "Facial Image Comparison Report - F2016-00559" dated 8 September 2016, and whose photograph appears beside that of the applicant in that document.

   (b) Failure to give the applicant clear particulars of information about the appearance of Nazmul Karim in the way required by s.359A(2) of the Migration Act.

   (c) Failure to give the applicant clear particulars of information about the shape of the Nazmul Karim's ears in the way required by s.359A(2) of the Migration Act.

   2. The finding that the applicant was the same person as "Nazmul Karim" was legally unreasonable.

   Particulars

   (a) It was not open, on the basis of the available evidence, for the Tribunal to reach a conclusion that the applicant and "Nazmul Karim" were the same person.

   Further Particulars

   (i) Photographs of the applicant and the person named as "Nazmul Karim" whose photograph appears beside that of the applicant in the document entitled, "Facial Image Comparison Report - F2016-00559" dated 8 September 2016 show significant points of difference which on any reasonable analysis preclude a conclusion that they are of the same person.

   (ii) The faces in the photographs are not shown in profile.

   (iii) The dates upon which the photographs were taken is unknown.

   (iv) That the Department's "Facial image Comparison Specialist" had expressed an opinion about similarities in the appearance of the applicant and Nazmul Karim did not provide a logical or rational basis for the Tribunal to decide that they are the same person.

   (v) That the Tribunal did not believe the applicant about his own education and background was not evidence that he was Nazmul Karim.

   (vi) Files showing personal and biographical details of the person named as "Nazmul Karim" were not able to be located.”

Ground 1

1. Ground 1 contends that the Tribunal erred in failing to give to the applicant clear particulars of the information enlivened by s.359A of the Act, namely, a Facial Image Comparison Report, dated 8 September 2018, which, inter alia, depicted a photograph of the applicant and a photograph of Nazmul Karim, the person found by the Tribunal to also be the applicant.

2. A copy of the Facial Image Comparison Report was annexed to the Affidavit of Ejaz Khan, affirmed 10 January 2019, the applicant’s solicitor. The following observations, limitations and findings were identified by the author of the Facial Image Comparison Report, Phillip Muller, Facial Image Comparison Specialist (“the Facial Comparison Specialist”). Those observations, limitations and findings are as follows:

   “FACIAL IMAGE COMPARISON REPORT- F2016-00559

   4. OBSERVATIONS

   I have conducted an examination of the images listed above and the following observations were noted:

   Similarities between P1 and Q1 include:

   •    overall shape and angle of the ears

   •    overall shape of the eyes

   •    width of the nose

   •    shape and fullness of the lips

   •    overall shape of the face

   •    corresponding facial mark

   5. LIMITATIONS

   The images displayed one or more issues related to image quality including, but not limited to lighting, subject to camera distance, facial expression, head angle and compression artefacts. This limited the comparison process.

   6. FINDINGS

   The facial images have been compared and I am of the opinion that there are indications that P1 and Q1 represent the same person.”

   (Emphasis added)

3. A page depicting the 2 photographs in colour was tendered by the applicant and marked Exhibit 1A. One photograph had the applicant’s name (P1) and the second photograph had the name Nazmul Karim (Q1) under it.

4. As stated above, the conclusion of the Facial Comparison Specialist was that “there are indications” that the photographs represent the same person, namely the applicant.

5. It is common ground that the applicant was not provided with a copy of the Facial Image Comparison Report. However, at the hearing before the Tribunal the applicant was shown photocopies of the two photographs on the Facial Image Comparison Report.

6. The Tribunal also noted that the applicant had known for some time that there was a serious issue about his identity in circumstances where the Delegate found the applicant and Nazmul Karim to be the same person. Yet the applicant did not provide evidence to show that he was living in Bangladesh at the time that Nazmul Karim was in Australia between 2007 and 2010.

7. Counsel for the applicant contended that the Tribunal relied on a comparison of the ears of the persons in the photographs in finding that the applicant and Nazmul Karim are the same person. Counsel for the applicant relied on the transcript annexed to the Affidavit of Muhammad Ehsanul Kabir, affirmed 22 January 2019, in support of that contention.

8. Relevantly, the transcript is as follows:

   “AAT Member (55:42): Do you deny that you are Nazmul Karim?

   Applicant (55:45): Yes.

   Interpreter (55:46): Yes.

   …

   AAT Member (57:27): I mean, this looks ... both these photos look like you.

   Applicant (57:30): Yes. When we stand together, many people find it difficult to distinguish.

   Interpreter (57:38): Me and my step-brothers stand together, people can't know which is which.

   AAT Member (57:47): Have you provided any evidence about this? Their photos, their dates of birth, their full names?

   Interpreter (57:54): Have you provided their photos, their dates of birth, their full names ever to the government?

   Applicant (58:01): While applying for the citizenship, I submitted the names.

   Interpreter (58:06): When I applied for citizenship, I submitted their names and dates of birth but I did not... I was not asked to furnish any photos.

   …

   AAT Member (1:00:55): The ears are the same in the both these photos and your ears.

   Interpreter (1:01:00): The ears are the same in both of these photos. But ears of two people are different.

   Applicant (1:01:07): I can't say why. Because, all the brothers I have look the same-- flat nose and that.

   Interpreter (1:01:18): I don't know about that but all the step ... half-brothers and sisters resemble the same flat nose and flat ears.

   AAT Member (1:01:35): So, you are still denying that Nazmul Karim is you.

   Interpreter (1:01:40): Are you still saying that you are not this Nazmul Karim?

   Applicant (1:01:43): Yes

   Interpreter (1:01:44): Yes

   AAT Member (1:01:48): You are gonna have to provide me with the names, the dates of birth of all your brothers and step-brothers and half-brothers and I will do search to see if they have been in Australia.

   Interpreter (1:01:58): Now, you will have to provide the dates of birth of all your step-brothers and sisters. Then, it can be searched whether any of them are here in Australia.

   Applicant (1:02:10): In that case, please give me some time. Then, I will provide you with everyone's names and dates of birth according to their passport. I know the exact years, but not the exact dates. I will provide her with those. She can do the search.

   Interpreter (1:02:25): Could you please give me some time so I will get all their names and dates of birth according to their passport what they have. I need some time to get that and then I will furnish every evidence to you.

   …

   AAT Member (1:03:11): If you don't provide evidence that satisfies me, it may well be that I affirm the decision to cancel the VISA.

   Interpreter (1:03:20): Now, if you cannot provide her with all the correct evidences, the decision will not go in your favour.

   AAT Member (1:03:30): If I am not satisfied that you have had a step-brother who is very similar to you if not identical then I may well be finding that you have been dishonest in your applications to the department of immigration.

   Interpreter (1:03:46): Now, you have to prove that your step-brother or some other person looks exactly the same. If you cannot prove, then the decision to cancel your VISA will remain unchanged.”

   (Emphasis added)

9. Mr Karp submitted that the Tribunal must be taken to have relied upon the entirety of the report because the Tribunal stated that it had taken into account all evidence and the report was plainly before it, as it was before the Delegate.

10. Mr Karp submitted that in breach of s.359A of the Act, the Tribunal did not disclose to the applicant what was said to be the indicia of similarities between the photograph of the applicant and the photograph of Nazmul Karim, namely, the “Observations” listed above; and, did not disclose the similarity of the ears in the photographs in the manner required by s.359A or s.359AA of the Act.

11. Counsel for the first respondent, Mr Hughes, submitted that the reason that there was no contravention of s.359A of the Act was because the reason for affirming the decision under review was that the applicant had given an incorrect answer because he had previously visited Australia under the name Nazmul Karim.

12. Further, the Tribunal’s conclusion that the applicant and Nazmul Karim are the same person was based on information provided by the applicant to the Tribunal for the purposes of his review and is therefore excluded from the operation of s.359A of the Act by s.359A(4)(b) of the Act. That information was the Delegate’s decision record which stated as follows:

    “Evidence - Identity - Nazmul Karim

    14. An identity and Facial Comparison analysis undertaken by the Department of Immigration and Border Protection has confirmed that there are indications that Abdul Karim Bhuiyan (05/09/1986) and Nazmul Karim (01/10/1977) represent the same person.

    15. Departmental records indicate that Nazmul Karim was granted a Student (Temporary) Visa, subclass 572 on 11 January 2007. The applicant arrived in Australia as the holder of a subclass 572 visa on 4 February 2007, using a Bangladesh Passport with the number V0785251.

    16. From 4 February 2007, the applicant remained in Australia until 14 December 2010.

    17. The subclass 572 visa held by the applicant was cancelled on 6 February 2011.

    Consideration regarding evidence

    18. Based on the information outlined above, it appears that the visa holder is Nazmul Karim, and has been previously known by this name, and the visa holder held a Bangladesh Passport in this name with the number V0785251.

    19. Under the name Nazmul Karim, the visa holder previously applied for and was granted a subclass 572 visa. He previously studied in Australia, and resided in Australia from 2007 to 2010.

    20. I consider that Mr Abdur Karim Bhuiyan has not complied with section 101(b) of the Act as he has provided incorrect answers to the following questions in his application for a subclass 573 (Student - Higher Education Sector) visa on 18 September 2011.”

13. Certainly, by letter from the Department dated 5 October 2016, the applicant was informed that the Facial Image Comparison Report undertaken by the Department had confirmed that there are indications that the applicant and Nazmul Karim are the same person. The letter informed the applicant that Department records indicated that Nazmul Karim had been granted a student visa on 11 January 2007 and remained in Australia between 4 February 2007 and 14 December 2010. The letter informed the applicant that the applicant arrived in Australia on 4 February 2007, also on a student visa, and identified the applicant’s Bangladesh passport number. In particular, the letter stated that the passport number used by the applicant on his entry to Australia on 4 February 2007 was the same passport number as that of Nazmul Karim.

14. The letter invited the applicant to respond to the information and to provide any supporting evidence.

15. On 19 October 2016, the applicant’s migration agent responded stating that the applicant denied the allegations and asserting that the applicant came to Australia on his Bangladesh passport on a different passport number to the passport number identified by the Department. That passport expired on 13 May 2016 and was renewed in Canberra with a different number again.

16. The migration agent’s letter also requested a copy of the Facial Image Comparison Report.

17. By letter sent 4 November 2016, the Department responded to the applicant’s migration agent stating that it did not include the Facial Image Comparison Report but that a copy may be requested through Freedom of Information.

18. The Delegate’s decision referred specifically to the concerns raised by the Facial Image Comparison Report noting that it opined that there were “indications” that the applicant and Nazmul Karim represent the same person.

1. By letter dated 12 April 2017 to the Department, the applicant’s solicitor made a Freedom of Information request, a copy of which was attached to the solicitor’s letter. The Freedom of Information response made clear that no documents existed in the name of Nazmul Karim despite the Department having undertaken searches to locate the documents.

2. The Tribunal had regard to this correspondence noting that the applicant stated that he does not know Nazmul Karim and he is not that person. The Tribunal noted that it brought to the applicant’s attention that the Tribunal had been provided with a photograph of the applicant and a photograph of Nazmul Karim.

3. As the transcript quoted above discussed:

   i)The Tribunal showed the applicant the two photographs and informed the applicant that both photographs looked like him. The Tribunal noted the applicant stated, “Yes”.

   ii)The applicant then referred to various family resemblances. The Tribunal brought to the applicant’s attention that the ears were the same in both of the photographs and that they were the same as the applicant’s ears. The Tribunal noted the applicant’s response that his stepbrother, half-brother and sisters all have the same flat nose and flat ears.

   iii)The Tribunal noted that it informed the applicant that if he provided the names and dates of birth of his brothers, stepbrother and half-brothers, the Tribunal would search to see if they had ever been in Australia. The Tribunal also informed the applicant that if it was not satisfied that he had a step sibling that was very similar if not identical to the applicant then the Tribunal may find that the applicant has been dishonest in applications to the Department.

4. The applicant then provided a statutory declaration, dated 5 May 2017, in which he identified a half-brother, Nazmul Karim Bhuiyan, born 1 October 1977 (being the same date as in the photograph of Nazmul Karim in the Facial Image Comparison Report) and a half-sister.

5. The Tribunal put to the applicant that his answers about his family members were vague and summarised an exchange that it had with the applicant about those details (see extract from the transcript above). The Tribunal made clear to the applicant that if the Tribunal is not satisfied that the applicant has a relative who is very similar to the applicant, if not identical, then the Tribunal may find the applicant has been dishonest in his application to the Department.

6. The Tribunal told the applicant that because the applicant denied that he was Nazmul Karim, the Tribunal had allowed the applicant further time for the opportunity to provide photos and biodata pages from passports and evidence from overseas about himself or Nazmul Karim. The Tribunal noted that the applicant told him about a brother he has, Nazmul Karim Bhuiyan, and as far as the applicant knows that brother has not visited Australia.

7. The Tribunal noted the applicant’s evidence that he had been told by friends and neighbours of someone who looks like him but did not provide any evidence about his half-brothers or step brothers other than his half-brother Nazmul Karim Bhuiyan, whom the Tribunal noted was coincidentally born on the same date as Nazmul Karim. The Tribunal noted that the applicant did not provide a photograph of Nazmul Karim Bhuiyan or the biodata pages of his passport.

8. The Tribunal also noted that the applicant raised the different passport numbers with the Tribunal in stating that it was implausible that he, the applicant, was Nazmul Karim, as Nazmul Karim had a different passport to the applicant. The Tribunal noted that it had informed the applicant that a lot of fraudulent documents come from Bangladesh and that there is a high level of document fraud in Bangladesh, based on country information before it, which it identified.

9. Ultimately, the Tribunal concluded that taking into account all the evidence, it was satisfied that the applicant and Nazmul Karim are the same person.

10. I accept the submission of counsel for the first respondent that the Tribunal did not just accept the Facial Image Comparison Report as the sole basis for finding that the applicant and Nazmul Karim are the same person. The Tribunal did note the Facial Image Comparison Report’s conclusion that indicated the applicant and Nazmul Karim are the same person. The Tribunal also noted the applicant’s acceptance of the similarities between the two photographs. The Tribunal also noted that the applicant was unable to show that he was in Bangladesh at the time the Nazmul Karim was in Australia or that he was undertaking a degree in his own name despite being given an opportunity to do so.

11. The applicant provided little evidence and detail about his family members, although appeared to claim before the Tribunal that he had a half-brother with the same birth date as Namzul Karim who was called Nazmul Karim Bhuiyan. The Tribunal offered the applicant more time to provide further evidence from overseas. As stated above, the Tribunal explained the significance of it finding that the photograph of Namzul Karim was the applicant, in that it was likely to find that the applicant had breached s.101 of the Act.

12. As stated above, the critical information in the Facial Image Comparison Report was the photographs and the finding that concluded that “there are indications” that the applicant and Nazmul Karim are the same person.

13. Insofar as the Tribunal relied on the conclusion of the Facial Image Comparison Report that there were indications that the photographs were of the same person, as stated above, that information was contained in the Delegate’s decision which was provided to the Tribunal by the applicant for the purposes of his review. In the circumstances, that was information excluded from the operation of s.359A of the Act by s.359A(4)(b) of the Act.

14. The photographs were clearly given to the applicant at the Tribunal hearing for comment. The transcript makes clear the discussion between the applicant and the Tribunal in relation to the photographs. The Tribunal referred to the similarity of the ears. The applicant agreed that the photographs were similar.

15. I do not accept that the similarity of the ears in the photographs or the “Observations” of the Facial Image Comparison Specialist was information by itself that was part of the reason for affirming the decision under review. In any event, to the extent that it may have been, it was information given to the Tribunal by the applicant (as it was information contained in the Delegate’s decision).

16. As stated above, I do not accept that the “Observations” in the Facial Image Comparison Report was information that formed part of the Tribunal’s reasons for affirming the decision under review. They are no more than observations of similarity referred to by the Facial Comparison Specialist and were not relied upon by the Tribunal. The similarity of the photographs was not an issue. The applicant himself made clear that he agreed that the photographs were similar.

17. If the similarity of the ears was part of the Tribunal’s reason for affirming the decision under review, that information was expressly given to the applicant by the Tribunal. As stated above, the Tribunal made clear to the applicant the significance of that information which it discussed with the applicant at the hearing.

18. In the circumstances, if there was an obligation under s.359A of the Act to give to the applicant the information about the Facial Image Comparison Report’s conclusion and the similarity of the photographs for comment, the Tribunal complied with that obligation by given that information to the applicant in accordance with s.359AA of the Act.

19. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal’s finding that the two photographs in the Facial Image Comparison Report were of the same person was unreasonable in all the circumstances.

2. Mr Karp submitted that the photographic evidence was deficient because the faces were not shown in profile and that there are some obvious differences in the photographs. Mr Karp submitted that the opinion expressed in the Facial Image Comparison Report that the photographs were of the same person is irrelevant because the author of the Facial Image Comparison Report is not a proven expert. When Mr Karp challenged the expertise of that person, I offered Mr Karp the opportunity for an adjournment to confirm Mr Muller’s expertise. That offer was declined by Mr Karp.

3. Mr Karp also submitted that the Tribunal’s finding that the applicant’s apparent untruthfulness about his own history contributed to its finding that he was Nazmul Karim was not evidence that the applicant was in fact Nazmul Karim. Mr Karp submitted that the evidence to support the Tribunal’s finding that the applicant and Nazmul Karim were the same person was inadequate and the process by which the Tribunal arrived at those findings was legally unreasonable.

4. I do not agree with those submissions.

5. The Tribunal had regard to its finding that the applicant was not telling the truth about his education history in Bangladesh at the time that Nazmul Karim was in Australia and failed to provide any documentary material to support his claim to be studying in Bangladesh at that time. The Tribunal raised its concerns with the applicant about the similarities in the photographs and gave the applicant an opportunity to provide further evidence about his family which the Tribunal found to be vague.

6. The Tribunal also put clearly to the applicant that both photographs looked like him and the applicant agreed.

7. It is for the Tribunal to consider and assess the weight it gives to particular pieces of evidence. In weighing the evidence before it, the Tribunal not only had regard to the photographs, the applicant’s acceptance of the similarity of the photographs and the conclusion of the Facial Comparison Specialist that in his opinion there are indications that the photographs are of the same person, but all the other concerns that the Tribunal had about the applicant’s credibility referred to above. In particular, the Tribunal expressed concerns about the applicant’s credibility in relation to his assertions to have been studying in Bangladesh when Nazmul Karim was in Australia; and the complete lack of documentary evidence to support the applicant’s bare assertions to that effect.

8. In the circumstances, the Tribunal’s finding that the applicant and Nazmul Karim were the same person was open to it on the evidence and material before it and for the reasons it gave. 

9. Ultimately, the Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; or reaching a finding without a logical; or probative basis, or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

10. Accordingly Ground 2 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  11 March 2019