Bzaim v Minister for Immigration and Border Protection

[2015] FCA 907

FEDERAL COURT OF AUSTRALIA

BZAIM v Minister for Immigration and Border Protection [2015] FCA 907

Citation:	BZAIM v Minister for Immigration and Border Protection [2015] FCA 907
Appeal from:	BZAIM v Minister for Immigration and Border Protection & Anor [2015] FCCA 1232
Parties:	BZAIM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	QUD 366 of 2015
Judge(s):	GREENWOOD J
Date of judgment:	21 August 2015
Catchwords:	MIGRATION – consideration of whether the Federal Circuit Court of Australia fell into error by failing to find jurisdictional error on the part of the Refugee Review Tribunal on four contended grounds
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 36(2A)
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 - cited Re Refugee Tribunal; ex parte H (2001) 179 ALR 425 – cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 - cited
Date of hearing:	10 August 2015
Place:	Sydney via video‑link to Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Mr B McGlade
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 366 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAIM
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	21 AUGUST 2015
WHERE MADE:	SYDNEY VIA VIDEO-LINK TO BRISBANE

THE COURT ORDERS THAT:

1.Leave to rely upon Ground 1 of the grounds of appeal is refused. 

2.The appeal is dismissed. 

3.The appellant pay the costs of the first respondent of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 366 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAIM
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	21 AUGUST 2015
PLACE:	SYDNEY VIA VIDEO-LINK TO BRISBANE

REASONS FOR JUDGMENT

1. These proceedings are concerned with an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) by which the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection to refuse the appellant’s application for a protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).

2. The Tribunal decision was, of course, a privative clause decision under s 474 of the Act with the result that it was necessary in order for the appellant to succeed before the Federal Circuit Court to establish that the Tribunal fell into jurisdictional error.

3. In order to succeed in this Court, it is necessary for the appellant to establish error on the part of the primary judge.  The appellant seeks to do that by seeking to demonstrate that the Tribunal fell into jurisdictional error and the primary judge fell into error by failing to find jurisdictional error on the part of the Tribunal. 

4. The background matters are these. 

5. The appellant is a citizen of Bangladesh as so found by the Tribunal.  The appellant came to Australia as an unauthorised maritime arrival on 26 July 2012.  On 12 November 2012, he applied for a protection visa and on 23 August 2013 the Minister’s delegate refused to grant that application.  On 2 September 2013, the appellant applied to the Tribunal for review of the delegate’s decision.  The appellant appeared before the Tribunal together with a representative on 17 November 2014.  On 27 November 2014, the Tribunal affirmed the delegate’s decision to refuse the grant of the visa.  On 22 December 2014, the appellant applied to the Federal Circuit Court seeking orders that the Tribunal decision be set aside and the matter be remitted to the Tribunal for determination according to law. 

6. Before the Federal Circuit Court the grounds relied upon in support of the orders were these (sic):

   1.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidences in relation to my claim to be a refugee. 

   2.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my explanations for any adverse information that the Tribunal may have.  If I would be given the opportunity to explain that could have led to a different decision by the Tribunal. 

   3.The tribunal biased by the country information and considered my case on average without giving any weight on my claims and didn’t look the matter individually. 

   4.The tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision. 

7. In conducting a review of the delegate’s decision, the Tribunal had before it the Department’s file relating to the appellant’s protection visa application; the delegate’s decision record and a written submission dated 10 November 2014 provided to the Tribunal by the appellant’s representative. 

8. As earlier mentioned, the appellant appeared before the Tribunal on 17 November 2014 and gave evidence in support of his claims and presented arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  The appellant was represented before the Tribunal by a registered migration agent. 

9. The material on the Department’s file contained a visa application form and an accompanying statutory declaration dated 5 November 2012.  The Tribunal notes that in relation to the declaration and other documents, the appellant seemed to be confused and unsure about what material had been put on, on his behalf.  The Tribunal notes that the appellant told the Tribunal that he was unaware of the contents of the visa application form and the declaration of 5 November 2012. 

10. The Tribunal notes that during the hearing the appellant told the Tribunal that he had left Bangladesh because he had been a supporter of the Bangladesh Nationalist Party (“BNP”) and that due to the Awami League coming to power he feared returning to Bangladesh because he felt that he would be unsafe in that country until the BNP was returned to power.  The Tribunal notes that the appellant’s oral evidence was that when the Awami League took power they prevented BNP supporters from engaging in many activities including such things as going to the local bazaar.  The appellant told the Tribunal that he had been threatened on three occasions by supporters of the Awami League and on the last occasion he had been beaten and struck on the shoulder.  The appellant told the Tribunal that that incident caused him to leave Bangladesh.  The Tribunal notes the appellant’s evidence that he left Bangladesh that night and went to India where he lived for seven or eight months.  He then moved to Malaysia for three or four years before travelling to Australia. 

11. At para 10 of the Tribunal’s reasons it observes that it found the appellant’s oral evidence “vague and inconsistent with the information previously provided to the department, and with the written submission dated 10 November 2014 provided to the tribunal by the applicant’s representative, and with country information in relation to the election cycle in Bangladesh”.  At para 10, the Tribunal found that the appellant was not a witness of truth.  The Tribunal said that it was not satisfied that the appellant is or was a supporter of the BNP or that he had been threatened and beaten and hit due to his support of the BNP or for any political activity or opinion or any imputed political opinion.  The Tribunal also finds at para 10 that it could not be satisfied that the appellant feared returning to Bangladesh for the reasons claimed. 

12. The Tribunal in its reasons then goes on to identify the reasoning in support of those conclusions.  A number of steps in the reasoning are identified. 

13. First, the Tribunal observed that the appellant’s oral evidence was inconsistent with the statutory declaration dated 5 November 2012 and also inconsistent with the information he had provided to the delegate during an interview on 28 March 2014.  The Tribunal observed that the appellant’s evidence was also inconsistent with statements contained in the representative’s written submissions of 10 November 2014. 

14. The Tribunal observes that although the appellant had said that he was not aware of the contents of his protection visa application form and the statutory declaration of 5 November 2012, the information contained in those documents was nevertheless provided by the appellant and properly reflected his claims at the time of the application. 

15. As to the inconsistencies, the Tribunal said this at para 13:

    During the hearing the tribunal raised its concerns that the applicant’s oral evidence was different to that contained in the statutory declaration in a number of significant respects.  The applicant told the tribunal he had left Bangladesh in mid‑2007 or at the end of 2007.  The statutory declaration states the applicant left Bangladesh in 2008.  The applicant also told the tribunal that there had been three incidents where he was threatened, including the last incident when he was threatened and beaten and hit on the shoulder.  The statutory declaration only refers to 2 incidents where he was threatened, including the second incident where he was hit on the shoulder.  In response, the applicant told the tribunal he did not know how many incidents were written down, but he told them three incidents happened, including the third time when he was beaten.  The tribunal notes the applicant’s response is consistent with his earlier oral evidence that he was not aware of the contents of the statutory declaration.  While the applicant’s confusion about the visa application process may be contributing to his current lack of knowledge of the contents of the statutory declaration, as noted above, the tribunal finds the information contained in the statutory declaration reflects his claims at the time of application.  In light of the tribunal’s other concerns in relation to the applicant’s credibility, the tribunal does not accept the applicant’s response explains the inconsistencies.  The tribunal considers the inconsistencies between the applicant’s oral evidence and the statutory declaration dated 5 November 2012 reflects poorly on his credibility as a witness and the reliability of his claims. 

16. At para 14, the Tribunal says that pursuant to s 424AA of the Act, it put to the appellant information contained in the recording of the delegate’s interview with the appellant held on 28 March 2014. In so doing, the Tribunal put to the appellant that he had told the delegate that there had been two incidents where he was threatened including the second incident when he was hit with a stick on the shoulder and that the appellant had told the delegate that the first incident had occurred in December 2007. The Tribunal drew to the appellant’s attention that this information was inconsistent with his oral evidence that there had been three incidents when he was threatened including the third incident when he said he had been beaten which had caused him to leave Bangladesh in mid‑2007 or at the end of 2007. The appellant responded to those matters by saying that he had answered the questions asked of him and he did not know “what had been written down”.

17. At para 14, the Tribunal observes that it was not persuaded by the appellant’s response and remained of the view that the inconsistencies noted by the Tribunal reflected poorly on the appellant’s credibility and the reliability of his claims. 

18. In other words, the Tribunal, at para 14, is saying that it could not reach the relevant state of satisfaction about matters central to the appellant’s claims upon which a favourable protection visa application rests. 

19. Apart from these matters, the Tribunal observes at para 15 that the appellant’s oral evidence in inconsistent with his written submission dated 10 November 2014.  In that submission, the appellant’s representative had said that confusion appeared to have arisen between “the two incidents of harassment inflicted upon him by the AL”.  The representative said that the appellant had clarified that during the first incident he had been subjected to only “purely verbal abuse” but during a second incident he was also subjected to physical abuse.  The Tribunal notes that the submission puts the position that “[i]t was the increasing severity of abuse which prompted [the appellant] to flee Bangladesh”.  At para 15, the Tribunal notes the proposition in the submission that the appellant had “clarified that he left Bangladesh four or five months prior to the Bangladeshi national elections (at the end of 2008)”. 

20. At para 16 of the reasons, the Tribunal notes another subject matter which suggested to it an inconsistency between the appellant’s oral evidence and the written submission dated 10 November 2014.  That matter concerned the “identity of Isaac”.

21. All of those matters just mentioned go to the first point of reasoning concerning the Tribunal’s concern about the appellant’s oral evidence and its inconsistency with particular written materials. 

22. The second point of reasoning in support of the credibility findings at para 10 is noted at para 17 of the Tribunal’s reasons.  The Tribunal finds that the appellant was vague in relation to the timing of events and the details of his support activities for the BNP.  The Tribunal found that the appellant was unpersuasive about why he supported the BNP.  The Tribunal found that his knowledge of the BNP was very limited.  At paras 18 and 19, the Tribunal sets out the content of those matters which caused it to form that view. 

23. Another matter of concern related to the question of timing. 

24. At para 19, the Tribunal notes that the appellant gave oral evidence that he began supporting the BNP three or four months after it came to power and continued his support activities for three or four years.  The Tribunal notes that the appellant gave evidence before the Tribunal that he left Bangladesh in mid‑2007 when the Awami League took power in around 2007.  The Tribunal then had regard to country information which indicated that the Awami League took power in the national Parliamentary elections held in December 2008.  The local elections were held in January 2009.  The Tribunal notes the appellant’s evidence that the election was held in mid‑2007.  The Tribunal notes the appellant’s oral evidence that he left Bangladesh in mid‑2007 or the end of 2007 when the Awami League took power.  The Tribunal, at para 20, says this:

    While the tribunal has considered the applicant’s oral evidence, that he was quite young when he began to support the BNP, and was not a member or a leader in the party, the tribunal does not accept this explains why his claims, that he left Bangladesh in mid‑2007 or at the end of 2007 when the AL took power, do not reflect the election dates noted above. 

25. At para 22, the Tribunal, during the course of the oral hearing, put to the appellant its concerns about “the applicant’s credibility and whether he was telling the truth to the tribunal”.  The Tribunal notes that in response to these concerns the appellant said that he “did not tell a lie, and that he didn’t tell the exact dates of events because he can’t remember what happened in the past since coming to Australia, as the environment in Australia is so good”. 

26. At para 23, the Tribunal restates its position that the appellant’s limited education or bad memory or the effect of the environment in Australia was not a satisfactory explanation for inconsistencies between the appellant’s oral evidence and the statutory declaration of 5 November 2012; information given to the delegate on 28 March 2014; or the information contained in the written submission dated 10 November 2014. 

27. At para 25, the Tribunal has regard to country information referred to by the appellant’s representative in the written submissions.  The Tribunal also notes that during the course of the hearing it had regard to “recent DFAT country report for Bangladesh dated 20 October 2014” which contained an assessment that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day‑to‑day basis due to their political affiliations. 

28. At para 27, the Tribunal finds that the appellant “is not a witness of truth and it is not satisfied the applicant has told the tribunal the truth in relation to critical aspects of his claims”.  The Tribunal did not accept that the appellant is or was a supporter of the BNP or that he undertook supporting activities for the party “once a month, or twice a month, or three times a month for three or four years” as the appellant had contended.  Nor did the Tribunal accept that the appellant had been threatened and beaten and hit due to his support of the BNP or for any political activity or opinion.  Nor did the Tribunal accept that the appellant feared returning to Bangladesh because of his previous support of the BNP. 

29. At para 28, the Tribunal concluded that it did not accept that there was a real chance that the appellant’s safety would be compromised or that he would be killed, tortured, kidnapped or seriously harmed by members or supporters of the Awami League or the authorities should he return to Bangladesh.  At para 29, the Tribunal finds that because the appellant was not a witness of truth and there was no real chance that the appellant would suffer harm if returned to Bangladesh, the Tribunal could not be satisfied that the appellant held a well‑founded fear of persecution for the purposes of the Refugees Convention as that term is well understood for the purposes of the Act.

30. Thus, the Tribunal found that the appellant had failed to satisfy the Tribunal as to the s 36(2)(a) matters.

31. The Tribunal then examined the alternative possibility that the appellant may have satisfied the complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal asked itself whether, standing in the shoes of the Minister, the Tribunal had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there was a real risk that the appellant would suffer “significant harm” in the sense contemplated by s 36(2A) of the Act.

32. At paras 31 to 33 of the decision, the Tribunal, based upon its assessment of all of the matters earlier mentioned, could not be so satisfied.  Some of the factual matters are summarised again at para 32.  At para 33, the Tribunal says this:

    Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm. 

33. As noted at [6] of these reasons, the appellant sought judicial review before the Federal Circuit Court of the Tribunal’s decision on the four grounds there identified. 

1. The Federal Circuit Court rejected each of those grounds. 

2. There is little point examining each of those grounds independently in these reasons because the fundamental proposition of the appellant is that the primary judge fell into error by failing to find jurisdictional error on the part of the Tribunal and (subject to any additional ground not agitated before the primary judge which is sought to be raised before this Court), the grounds of appeal before this Court represent in truth a re‑agitation of the earlier grounds before the Federal Circuit Court.  In addressing the grounds of appeal before this Court I will therefore address the relationship between those grounds and the matters agitated before the primary judge. 

3. As to the grounds of appeal, the grounds are these (sic):

   1.Hon. Judge VASTA of the Federal Circuit Court failed to hold that Refugee Review Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act. The RRT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. RRT decision is unreasonable with regards to Complementary Provision.

   2.The Hon. Judge failed to hold that the Tribunal exceeded its jurisdiction or constructively to failed to exercise its jurisdiction. 

   3.The Hon. Judge to hold that the Tribunal made inconsistent assertions on the credibility testimony. 

   4.The appellant claims that the Tribunal formed the preoccupied [which probably is intended to be “pre‑determined”] view or opinion about the Applicant’s document and oral evidence.  The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision it ignored or overlooked the oral evidence of the applicant.  Whatever he said was true.

4. As is apparent from [6] of these reasons, Ground 1 of the appeal raises a matter which was not a ground of challenge to the Tribunal’s decision agitated before the primary judge. Thus, leave is required to agitate the question identified in relation to contended jurisdictional error on the ground that the Tribunal failed to apply the correct test in determining complementary protection under the Act.

5. Ground 1 of the notice of appeal in fact contains a number of propositions. 

6. The first is that the Tribunal failed to apply the correct test in relation to the complementary protection criterion. 

7. The second contention is that the Tribunal failed to separate an assessment of the claims going to the appellant’s contended status as a refugee on the basis of a well‑founded fear of persecution and his contentions in relation to complementary protection. 

8. The third contention is that the Tribunal acted unreasonably in reaching its decision concerning complementary protection. 

9. As to the first contention, it is clear that the Tribunal understood and properly applied the correct test in relation to complementary protection.  That is apparent from the Tribunal’s reasons and the attachment to the reasons setting out the relevant law. 

10. There is no substance in this contention. 

11. As to the second contention, it is clear from the reasons that the Tribunal quite properly undertook an examination of all of the factual matters raised by the appellant in support of his contention that he is entitled to a protection visa as a refugee having regard to a contended well‑founded fear of persecution for a Convention reason.  It is equally clear that the Tribunal, as an entirely separate matter, then turned to the appellant’s complementary protection claims.  The two matters were addressed separately although of course the factual content of the two separate grounds substantially overlaps. 

12. There is no substance in this contention. 

13. As to the third contention, the question for the Tribunal was whether it could reach the relevant state of statutory satisfaction that the appellant had met the complementary protection criterion.  Thus the question was:  Was the Tribunal satisfied of the relevant matter?  The Tribunal, from its reasons, makes plain that certain facts were found by it and it thus could not be satisfied that the statutory criterion had been met.  The process of fact finding was a matter for the Tribunal and the real question was whether the findings of fact were open to the Tribunal in the sense of whether there was evidence upon which it could so act.  The findings were plainly open on the evidence having regard to the process of reasoning exposed by the reasons.  The question is not whether the findings were reasonable or unreasonable but whether the findings were open or not open having regard to the test applicable to that question.  The findings were plainly open and they cannot be challenged on the ground of unreasonableness.  If the question was whether the Tribunal had exercised a discretionary power conferred upon it reasonably or unreasonably, very different considerations would apply:  see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. There is no substance in this contention.

14. As to Ground 2 of the grounds of appeal, there is simply no content to the ground. 

15. The notion seems to be that the Tribunal fell into jurisdictional error because it “constructively failed” to exercise its jurisdiction.  It is not at all clear what is meant by this contention.  This ground seems to be a re‑agitation of Ground 1 of the grounds pressed before the primary judge (see [6] of these reasons).  However, the appellant neither orally nor in writing seeks to re‑agitate the matter raised by Ground 2 before the primary judge.  That matter concerned a contention that the Tribunal had fallen into jurisdictional error by denying the appellant procedural fairness by not giving him an opportunity to explain any adverse information before the Tribunal.  The difficulty with that contention is that the Tribunal’s reasons make plain that it put the question of inconsistencies to the appellant and was unsatisfied about his response.  There was no procedural unfairness.  In any event, that matter is not pressed.  It may be, however, that Ground 2 of the grounds of appeal before this Court is a shorthand way of seeking to re‑agitate Ground 1 of the grounds pressed before the primary judge. 

16. Ground 1 of the grounds before the primary judge asserts a constructive failure on the part of the Tribunal to exercise its jurisdiction because it failed to take into consideration the appellant’s oral evidence and other documents put before the Tribunal in relation to his claim to be a refugee.  In other words, the appellant seems to be suggesting that the Tribunal closed its eyes to the appellant’s oral evidence and his documents in purporting to discharge the statutory review function.  The Tribunal’s reasons identify and purport to weigh and assess the appellant’s oral evidence in the context of the documents before the Tribunal.  In effect, the appellant is suggesting that the Tribunal brought a closed mind to that evidence. 

17. I accept the submission of counsel for the Minister that Ground 2 of the grounds of appeal, if it is to be regarded as an attempt to re‑agitate Ground 1 of the grounds pressed before the primary judge, is in substance another way of saying that the Tribunal approached the discharge of the statutory review function in a way reflecting bias or possibly an apprehension of bias. 

18. Thus, it is convenient to deal with Ground 2 along with Ground 4 of the grounds of appeal which assert bias on the part of the Tribunal or a proper basis for an apprehension of bias on the part of the Tribunal. 

19. Ground 3 of the grounds of appeal is unclear. 

20. It is probably intended to mean that the primary judge fell into error by failing to find that the Tribunal had made inconsistent assertions or reached contradictory positions on the question of the credibility of the appellant in the course of the reasons.  The written submissions put on by the appellant do not address the question.  If this ground of appeal is intended to mean that there was inconsistency of treatment of facts or inconsistent findings or inconsistent conclusions in one part of the reasons as compared with another part, on the issue of the Tribunal’s view about the truthfulness of the appellant, no such inconsistencies are identified and none are apparent from the reasons.  If, on the other hand, Ground 3 is, as counsel for the Minister suggests, simply an assertion that the Tribunal ought to have accepted the appellant’s evidence, then the ground is simply seeking to emphatically contest a finding on the merits. 

21. There is no substance in Ground 3. 

22. As to Ground 4, the appellant asserts that the Tribunal approached and undertook the statutory review function with a pre‑determined view or opinion about the evidence in mind and, in effect, closed its eyes to the oral evidence and documents of the appellant.  The appellant says that he was denied natural justice and procedural fairness because the Tribunal reached its decision by ignoring and overlooking the oral evidence of the appellant.  Ground 4 concludes with the statement that whatever the appellant said before the Tribunal was, in fact, true. 

23. The primary judge rejected these contentions agitated as Ground 4 of the grounds before him.  The primary judge observed that the allegations of bias were serious matters which needed to be proved.  As to the question of the test to be applied as a matter of law in determining whether a decision‑maker is biased, the primary judge properly identified the test set out by the High Court in Re Refugee Tribunal; ex parte H (2001) 179 ALR 425 at [27] and [28], Gleeson CJ, Gaudron and Gummow JJ; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at [72].

24. The primary judge concluded that there was no evidence to justify a finding of bias and made this observation at [15]:

    As I say, it is a very rare and exceptional case where such [bias] will be able to be proven and such allegations, for me to act on, must be firmly established.  A finding against the Applicant on matters of credibility does not indicate that there has been pre‑judgment or bias.  When one looks at what it is that the Applicant was saying, even on its face, it was a story that was difficult to accept.  When one then added the country information, that initial feeling was corroborated.  It is difficult to see how the Tribunal could have come to any other decision.  But that in no way could be illustrative of bias.  Therefore, I cannot see that ground 4 has any merit whatsoever. 

25. The observations at [15] are not simply the primary judge substituting his own view for that of the Tribunal.  The primary judge is examining the process of reasoning and analysis in the Tribunal and seeking to discern whether having regard to all of the reasons there is any foundation for a claim that the Tribunal approached the exercise of the statutory review jurisdiction by bringing a closed mind or pre‑judgment to the decision.  The primary judge was not satisfied that the appellant had made good that contention.  In fact, the primary judge could see no basis for it whatsoever.  There is no error on the part of the primary judge in so concluding.

26. Another aspect of Ground 4 of the grounds of appeal is that the appellant contends for a denial of natural justice and a denial of procedural fairness because the Tribunal, when reaching its decision, ignored the appellant’s oral evidence.  This contention is slightly different to Ground 1 of the grounds agitated before the primary judge in that there is no reference in Ground 4 to the Tribunal having failed to consider the appellant’s documents.  As earlier mentioned, the further aspect of Ground 4 is the assertion that whatever oral evidence the appellant gave to the Tribunal, that evidence was true.  This last contention simply agitates jurisdictional error on the part of the Tribunal in failing to accept the oral evidence of the appellant. 

27. As mentioned, Ground 4 has some overlap with Ground 1 agitated before the primary judge.  The primary judge dismissed Ground 1 on the footing that an examination of the Tribunal’s reasons demonstrates that all of the appellant’s oral evidence and the documents put before the Tribunal were considered by the Tribunal.  Not only was the oral evidence considered together with the relevant documents, the consideration of that material forms a large part of the assessment and reasoning of the Tribunal.  All of that material was central to the assessment of the appellant’s claims to be a refugee and his claims to complementary protection.  The appellant’s written submissions do not take the matter any further as they fail to identify any oral evidence which the Tribunal is said to have failed to consider.  The contention must be understood as an assertion that the Tribunal simply did not have regard to the appellant’s oral evidence. 

28. In the absence of any real particularity of this ground; a failure to identify oral evidence overlooked; and reasons which extensively evaluate oral evidence and compare and contrast it with the written documents, there is simply no basis for the contention.  Thus, there is no error demonstrated in the primary judge’s decision on this issue.  It follows that the primary judge did not fall into error by failing to find jurisdictional error on this contended ground.  

29. Each of the claims of the appellant were considered by the Tribunal together with the evidence going to those claims. 

30. There is no substance to Ground 4 of the grounds of appeal. 

31. It follows that leave to rely upon Ground 1 the grounds of appeal before this Court is refused and the appeal must be dismissed together with an order that the appellant pay the first respondent’s costs of and incidental to the appeal. 

I certify that the preceding sixty‑four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        21 August 2015