ETI17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 115

Federal Circuit and Family Court of Australia

(DIVISION 2)

ETI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 115   

File number(s):

MLG 2302 of 2017

Judgment of:

JUDGE TAGLIERI

Date of judgment:

17 February 2023

Catchwords:

 MIGRATION – protection visa application – application for judicial review – whether the interpretation of the hearing was correct – whether the interpreter engaged by the Tribunal spoke the correct language – whether the Tribunal actively and properly listen to the evidence relied upon – whether the Tribunal did not properly consider the claims of the applicants – whether the conduct of the Tribunal denied the applicants a fair hearing – jurisdictional error not established – application for review dismissed  

Legislation:

Migration Act 1958 (Cth) ss 360, 476

Cases cited:

Bodige v Minister for Immigration and Border Protection & Anor [2018] FCCA 1841

CDK16 v Minister for Immigration and Border Protection [2020] FCA 1837

CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132

COY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 294

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

MZZNK v Minister for Immigration and Border Protection [2015] FCA 217

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

NAOX v Minister for Immigration and Citizenship [2009] FCA 1056

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437

SCAA v Minister for Immigration [2002] FCA 668

Seivadurai v Minsiter for Immigration and Ethnic Affairs & Anor (1994) 34 ALR 347

SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

SZOAF v Minister for Immigration and Citizenship [2010] FCA 431

SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045

VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

WABC of 2002 v Minister for Immigration [2002] FCAFC 286

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

58

Date of hearing:

15 and 25 November 2022

Place:

Hobart

For the First Applicant:

In person

For the Second Applicant:

In person

For the Third, Fourth and Fifth Applicants:

The First Applicant and Second Applicant as litigation guardians

Counsel for the First Respondent:

Mr A Anastasi

Solicitor for the First Respondent:

Clayton Utz

ORDERS

MLG 2302 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ETI17

First Applicant

ETJ17

Second Applicant

ETK17 (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE TAGLIERI
DATE OF ORDER:	17 February 2023

THE COURT ORDERS THAT:

1.The application filed 25 October 2017 is dismissed.

2.The applicants pay the first respondent’s costs in the fixed sum of $7,467.00.

3.If the applicants seek to set aside the order for costs at Order 2 of these Orders, they must do so within 7 days of the date of these Orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Taglieri

1. On 25 October 2017, the Applicants filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 13 October 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).

   BACKGROUND

2. The Applicants are non-citizens who applied for Protection Visas on 13 May 2015, which were refused by a delegate of the First Respondent on 28 October 2015.  On 11 November 2015 the Applicants applied to the Tribunal for review of this delegate’s decision.

3. The Tribunal conducted a hearing on 8 September 2017 with the assistance of an interpreter; the language of this interpreter is one of the issues raised at the review hearing before me. The Applicants represented themselves at the Tribunal hearing, and the First and Second Applicant gave evidence.

4. On 13 October 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visas.

   BASIS OF tRIBUNAL DECISION

5. The Tribunal summarised the Applicants’ claim as follows:

   (a)If they return to Malaysia, there is a foreseeable risk that they will be harmed by loan sharks to whom the First Applicant’s former business partner accrued a debt while they were jointly operating a business;[1]

   (b)In late 2008 and February 2009, men came to the First Applicant’s home concerning the loan.  On the first occasion they sought the location of the former business partner, then on the second occasion they took money from the First Applicant and indicated that they would return for more;[2]

   (c)On six occasions between July and September 2014, men came to the First Applicant’s home in relation to the loan.  They variously assaulted the First and Second Applicants, demanded payment within a set time, threatened further assault of the First Applicant and his family if he did not pay or if he reported the matter to police, stole money and property from the Applicants, and damaged their house;[3]

   (d)The First Applicant reported the behaviour of these men to police on three occasions and to political leaders,[4] but that the government and police are corrupt and that the Applicants cannot get protection from the government as they are Indian;[5] and

   (e)The First and Second Applicants fear that the loan shark will have them killed if they return to Malaysia.[6]

   [1] Tribunal’s reasons at [17(a)].

   [2] Tribunal’s reasons at [17(b)] and [17(b)].

   [3] Tribunal’s reasons at [17(c)] to [17(h)].

   [4] Tribunal’s reasons at [17(c)] to [17(d)], [17(g)] and [17(i)].

   [5] Tribunal’s reasons at [17(j)].

   [6] Tribunal’s reasons at [17(l)].

6. The Tribunal stated that the evidence given by the First and Second Applicants as largely consistent with their written claims.[7]

   [7] Tribunal’s reasons at [22].

7. Of particular relevance, the Tribunal noted that:

   (a)The First Applicant’s former business partner borrowed RM 85,000 from loan sharks and that the loan sharks demanded repayment of RM 135,000 from the First Applicant in late 2008;[8]

   (b)It accepted that the loan sharks attended the Applicants’ residence on 18 February 2009 to recover the money owed, threatened the First Applicant, and stole money;[9] and

   (c)It accepted that the loan sharks had no contact with the Applicants for four and a half years and did not persist in the demands for repayment, possibly as they were recovering the debt by other means;[10]

   (d)It accepted that the loan sharks demanded that the First Applicant repay about RM 1,000, which he assumed to be the balance of the loan, and that he refused.[11]  In response to questioning by the Tribunal, the First Applicant gave evidence that the Applicants could afford to repay the outstanding amount and that would have avoided the risk of harm from the loan sharks.  When asked why he did not repay the money, the First Applicant was not able to provide an answer;

   (e)It did not accept that the loan sharks assaulted the Second Applicant on 18 September 2014 as she did not report the assault to police in circumstances where the First Applicant had reported all other assaults;[12]

   (f)It accepted and found that the loan sharks did not contact the Applicants between 18 September 2014 and 10 April 2015;[13]

   (g)The Second Applicant could not elaborate upon her written claim that the Applicants were prevented from leaving town ‘many times’, and so the Tribunal did not accept that this occurred;[14]

   (h)When asked, the First and Second Applicant said that the loan sharks had not prevented them from leaving Malaysia.[15]

   [8] Tribunal’s reasons at [25] and [27].

   [9] Tribunal’s reasons at [28].

   [10] Tribunal’s reasons at [29].

   [11] Tribunal’s reasons at [30].

   [12] Tribunal’s reasons at [33].

   [13] Tribunal’s reasons at [34] and [37].

   [14] Tribunal’s reasons at [35].

   [15] Tribunal’s reasons at [36].

8. In addition, the Tribunal considered the Department of Foreign Affairs and Trade Country Information for Malaysia and discussed its contents with the First and Second Applicants at the hearing.[16]  It accepted, based on this information, that:

   (a)the practice of loan sharking is widespread in Malaysia despite being illegal;[17]

   (b)Indian Malaysians do not face day-to-day discrimination, though they are generally in a lower socio-economic position;[18] and

   (c)The Malaysian government acknowledged the existence of police corruption, and has implemented reforms to address it.[19]

   [16] Tribunal’s reasons at [38].

   [17] Tribunal’s reasons at [43] and [44].

   [18] Tribunal’s reasons at [38].

   [19] Tribunal’s reasons at [41].

9. The Tribunal, while it accepted the evidence about the loan and about the loan sharks’ demands for repayment, did not accept that the Applicants will suffer serious harm if they return to Malaysia.  It concluded that the Applicants’ behaviour is not consistent with a fear of serious harm, such as their refusal to pay the lesser amount of RM 1,000 when demanded and that the First Applicant ignored the loan sharks’ warning about making reports to police.[20]  Further, the Applicants’ departure from Malaysia was directly preceded by a period of seven months when they were not contacted by the loan sharks.[21]

   [20] Tribunal’s reasons at [52] and [54].

   [21] Tribunal’s reasons at [52].

10. For these reasons the Tribunal concluded that:[22]

    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 Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s36(2)(aa).

    [22] Tribunal’s reasons at [58].

    Court Review

11. The Application for judicial review of the Tribunal’s decision came before me on 15 and 25 November 2022 for hearing.  At the hearing, the First and Second Applicants represented themselves and the other Applicants with the assistance of a Tamil interpreter.  The First Respondent was represented by Counsel.

12. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal.  What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

13. The review hearing took place over two days.  At the conclusion of the initial hearing day on 15 November 2022, I adjourned to 25 November 2022 as the First and Second Applicants indicated that they intended to rely on an audio recording of the Tribunal proceedings on 8 September 2017. 

14. Counsel for the First Respondent indicated that he had access to the audio recording and could submit it to the Court.  I made an order to that effect, and a copy was provided to the Court and the Applicants on 16 November 2022. 

15. On the adjourned hearing, the Applicants indicated that they wished to rely on the audio recording to demonstrate problematic translation and it was received in evidence and marked as Exhibit A-1. I have listened the audio recording to which I was directed during submissions by the Applicants for the purpose of evaluating their submissions and giving judgment.

    Grounds of review

16. The application for review filed 25 October 2017 raises a single ground for review, being that:

    1.        The Tribunal failed to properly consider all of my claims.

17. Although failure to properly particularise a ground of review is a basis for dismissal,[23] after discussion with the First and Second Applicant and without objection from the First Respondent, on the first hearing day of 15 November 2022 the Court distilled from what the Applicants said, that there were essentially four complaints about the decision of the Tribunal and I formulated what I understood their grounds to be.  They were:

    (1)The interpretation at the Tribunal hearing was incorrect as the interpreter did not speak the correct language, meaning they were not afforded a fair hearing;

    (2)The Tribunal did not actively and properly listen to the evidence relied upon;

    (3)Because of Ground 2, the Tribunal did not properly consider their claims for protection; and

    (4)Based on the conduct and questioning by the Tribunal, the Applicants did not get a fair hearing.

    [23] WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

    ApplicantS’ CASE

18. The Applicants relied upon their application for review filed 25 October 2017 and did not file any further materials for the purposes of the hearing.  The Second Applicant made most of the submissions at the hearing on 15 November 2022 and on 25 November 2022, although supplemented by the First Applicant. The hearing was conducted with the assistance of the interpreter, whom the First and Second Applicants confirmed was suitable, could be understood, and correctly translated.

19. At the commencement of the hearing on 15 November 2022 I sought confirmation that the Applicants had received the Court Book filed by the First Respondent on 25 July 2017.  The Second Applicant said that they had not, but counsel for the First Respondent told the Court that he had spoken to the Second Applicant by phone to confirm that they had received it. 

20. On further questioning, the First and Second Applicant did not object to the Court having regard to the Court Book, and it was received into evidence as Exhibit R-1.

    Ground 1

21. In relation to Ground 1, the First Applicant submitted that the interpreter provided for the purposes of the Tribunal hearing spoke Malayalam whereas the Applicants speak Tamil, and as such the First and Second Applicant could not fully understand questions put and they were concerned their evidence was not accurately conveyed.

22. I referred the Second Applicant to page 289 of the Court Book, which is the Tribunal’s record for the hearing on 8 September 2018 and includes the names of two interpreters, one for Tamil and the other for Malayalam.  The name of the Malayalam interpreter had been struck through by hand; I put to the Second Applicant this suggested that the Tamil interpreter was the one present at the hearing.  She maintained that the interpreter at the Tribunal hearing spoke Malayalam.

23. On this point, I requested on 15 November 2022 that counsel for the First Respondent make enquiries with the Tribunal as to which interpreter was paid for the hearing.  Counsel for the First Respondent indicated that he would make the enquiries, but suspected that the information would not be available given the passage of time since the Tribunal hearing.

24. When the review hearing resumed on 25 November 2022, the Second Applicant further submitted that Exhibit A-1 evidences that the interpreter:

    (a)Was confused during the proceedings and at one point told the member such, although the Second Respondent could not pinpoint when in the recording this occurred other than it was in the “initial phase”; and

    (b)Could not have fully interpreted the proceedings as they only spoke in short sentences whereas the Tribunal member spoke in lengthy sentences, so the interpreter must have omitted some of what was said.

    Grounds 2 to 4

25. The Second Applicant made submissions as to the issues covered in Grounds 2 to 4 on 15 November 2022, and only provided brief additional submissions on 25 November 2022.  The submissions were made collectively and not directed specifically to any of the grounds I had distilled from their submissions/statements as addressed at [17] of these reasons.

26. The Second Applicant said that they were told at the Tribunal hearing that they could have remained in the same locality in Malaysia if they had repaid the debt owed to the loan shark by selling their property.  However, the Applicants submitted that they had stated the problems would have continued if they remained in Malaysia regardless of repayment and the Malaysian police would not assist them or protect them from the loan shark.

27. Further, they submitted that it would be difficult for the Applicants to survive in Malaysia, whereas in Australia the First Applicant, the Second Applicant and their eldest child are employed and have been living in Australia for seven years.  The thought of returning is distressing to them, given what has happened in the past.

28. Further, they submitted that the Tribunal insisted that the Applicants could have remained in Malaysia and that they could have used the sale proceeds from their property to pay off the debt; the member did not let them talk and stated that he did not believe them.

    FIRST RESPONDENT’S CASE

29. Counsel for the First Respondent relied on the Outline of Submissions filed 3 October 2022 and the List of Authorities filed 9 November 2022, and made oral submissions to the Court at the review hearing on 25 November 2022.

    Ground 1

30. Counsel for the First Respondent submitted that, critically to this Court’s assessment of the ground, the Applicants have failed to demonstrate that any departure from proper translation before the Tribunal was such that it prevented the Tribunal from properly grasping their claim.

31. In support of this, Counsel submitted that both the Tribunal’s hearing record[24] and the Tribunal’s decision indicate that the interpreter at the hearing on 17 September 2017 as being an interpreter of the Tamil language. The Court ought to consider this sufficient certification as to the language they spoke.  No additional information was provided by either party about the existence of records noting which of the two interpreters had been paid to attend the hearing.

    [24] Court Book at page 289.

32. As to the general quality of the interpretation provided at the hearing and the alleged confusion, counsel submitted that the Applicants have not demonstrated that the interpreter was either non-responsive or lacked coherency over the course of the two and half hour recording.  The Applicants have failed to show any departure from proper translation in any significant matter where it would prevent the Tribunal from properly assessing the Applicants’ claim.  In essence, the Applicants have failed to properly particularise this ground or substantiate it.

33. In response to questions from me, counsel for the First Respondent:

    (a)Confirmed that the Tribunal is responsible for engaging interpreters for the purpose of its hearings;

    (b)Said that there is no evidence in the Court Book of the level of qualification or certification of the interpreter engaged in this matter, but he submitted that the issue is whether there was a departure in the translation rather than a question of qualification or certification; and

    (c)Submitted that the Tribunal is under no obligation to specifically query as to the standard of qualification or certification, but practically they ask whether the interpreter and an applicant can understand each other.

1. In conclusion, counsel submitted that the Applicants had two and a half hours of hearing time before the Tribunal to raise any issues or concern about the accuracy or quality of interpretation, but they did not do so.  There does not appear to be any issues with the interpretation on the recording, and the interpreter appropriately sought clarification when required.

   Grounds 2 and 4

2. Counsel for the First Respondent addressed the grounds concerning the Tribunal actively listening to the evidence and affording procedural fairness to the Applicants together.  He submitted that, on the assumption that the translation of the proceedings was to a proper standard, the Tribunal had consideration of:

   (a)The First Applicant’s submissions;

   (b)The Second Applicant’s submissions;

   (c)Oral evidence from the First Applicant at the Tribunal hearing, given in the absence of the Second Applicant;

   (d)Oral evidence from the Second Applicant at the Tribunal hearing, given in the absence of the First Applicant;

   (e)Questioning of the First and Second Applicants together at the Tribunal hearing.

3. The questioning of the First and Second Applicants together addressed the inconsistencies between their accounts and addressed the Tribunal’s concerns about their change of reasoning, such as whether they could have sold their property in Malaysia to pay off the debts they owed. This ensured that the Applicants could comment on the issues for review and accounted for s 360 of the Act.

4. Counsel submitted that the Tribunal approached the hearing with the requisite open-mindedness and allowed the Applicants an opportunity to address concerns it had about the reliability of their claims. He submitted that the manner in which the Tribunal member questioned the First and Second Applicant was within the orthodox way Tribunal hearings ought to be conducted.

   Ground 3

5. As to proper consideration of the claims, Counsel for the First Respondent relied on the written outline of submissions filed 31 October 2022 at [13] and [14].  In essence, that:

   (a)The claim regarding the Applicants’ debt to loan sharks was covered extensively in the Tribunal reasons at [16] to [58].  It was a matter for the Tribunal as to whether it accepted the claims, and its rejection of those claims was not due to unreasonableness of lack of procedural fairness;[25]

   (b)As the Tribunal found that the Applicants did not meet any of the mandatory criteria for protection, it was not required to consider whether they met any of the other criteria.[26]

   EVALUATION

   [25] COY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 294 at [55]; CDK16 v Minister for Immigration and Border Protection [2020] FCA 1837 at [19] to [20].

   [26] Bodige v Minister for Immigration and Border Protection & Anor [2018] FCCA 1841 at [24].

   Ground 1

6. The First and Second Applicant pressed the ground in respect of the accuracy of interpretation at the Tribunal proceedings at the resumed hearing on 25 November 2022.  At this point the First Respondent had received the audio recording of the Tribunal proceedings.

7. The Applicants allege that, as evidenced by Exhibit A-1, the interpreter spoke Malayalam rather than Tamil, must have missed sections of what was said as the interpreter only spoke in short sections, and admitted to the member during the Tribunal hearing that they were confused.  However, they could not, when asked, provide exact time stamps in the two and half hour recording at which this is evident.  As such they have not properly particularised this ground, even after having had opportunity during the adjournment of the hearing to identify when the problematic interpretation is alleged to have occurred.

8. When taken specifically to the Tribunal hearing record in the Court Book at page 289, at which the entry for the Malayalam interpreter has been struck out by hand, leaving a Tamil interpreter’s name in place, the First and Second Applicant asserted that the record is incorrect and did not direct the Court to any evidence in support of this assertion.

9. I accept the submission of the First Respondent that the onus was on the Applicants to establish the deficiency in the adequacy of translation during the Tribunal hearing, and that they have failed to do so.  Ground 1 does not establish the high level of specifics required in respect of the jurisdictional error asserted.[27]   

   [27] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].

10. Furthermore, it seems more probable that the documentary record maintained by the Tribunal about which interpreter assisted during the hearing is correct.

11. For the foregoing reasons, this aspect of asserted jurisdictional error on the application for review is not established.

    Ground 2

12. The evidence before the Tribunal is as summarised at [35] of these reasons and further the documents identified in the Tribunal’s reasons at [21].  The Tribunal engaged with the contents of the First and Second Applicants’ evidence in its reasons at [22] to [37], then relevantly addressed country information at [38] to [49].

13. The Applicants have not identified the evidence, issue or claim to which they the Tribunal did not actively and properly listen.  Their submissions lacked any specifics, are not particularised and it is impossible to evaluate the generalised complaint. The Applicants have failed to persuade the Court that the Tribunal failed to listen and consider their claims or evidence. This aspect of their submissions is rejected.

14. To the extent that the Tribunal member put to the Applicants that they could have avoided difficulties with the loan shark by repayment of the loan, I consider it is within the reasonable ambit of the function of the Tribunal.[28]

    [28] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [451] per Beaumont J; Seivadurai v Minsiter for Immigration and Ethnic Affairs & Anor (1994) 34 ALR 347 at [348] per Heerey J; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

    Ground 3

15. The requisite level of engagement of the primary decision maker, here the Tribunal, was succinctly summarised in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. It states at [25]:

    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

    [citations omitted]

16. The Tribunal was required to consider all claims by the Applicants, those explicitly outlined by them and all any claims not explicitly advanced but which clearly arose from the materials before it.[29]

    [29] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263.

17. As noted at [45] of these reasons, the Tribunal extensively set out the evidence provided by the Applicants and indicated which parts it accepted and rejected.[30]  That acceptance or rejection is, in general, a matter for the Tribunal and not this Court on review.[31]  The reasons then proceed to give consideration to that evidence and the basis for not being satisfied of the statutory requirements for grant of protection visas.[32]

    [30] Tribunal’s reasons at [22] to [37].

    [31] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48].

    [32] Tribunal’s reasons at [51] to [58].

18. No jurisdictional error has been established on the basis of this ground or complaint.

    Ground 4

19. This complaint concerns the conduct and questioning by the Tribunal members and whether it was fair and afforded procedural fairness.

20. The mere fact that the Tribunal rejected the Applicants’ evidence and claims does not establish bias,[33] and the weight to be given to evidence is a matter for the Tribunal.[34]   Superior courts conducting judicial reviews and appeals from these have commonly accepted that “Robust and forthright testing of the appellant’s claims by the Tribunal… does not sustain a finding of apprehended bias”.[35]   

    [33] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].

    [34] WZATH v Minister for Immigration and Border Protection [2014] FCA 969; CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132.

    [35] SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 per Barker J at [17]; See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [41] to [43] per Spender J; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47] per Logan J; SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 at [18] per Flick J.

21. Finally, it should be noted that the Tribunal was not required to accept uncritically any or all of the Applicants’ evidence, nor was it required to have rebutting evidence available to it before rejecting their evidence.[36]

    [36] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [451] per Beaumont J; Seivadurai v Minsiter for Immigration and Ethnic Affairs & Anor (1994) 34 ALR 347 at [348] per Heerey J; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

22. I have listened to the audio recording and am able to assess the nature of the conduct and questioning by the Tribunal member. I would describe the questioning as robust and intended to test the evidence of the Applicants and the reliability of their claims.

23. I accept the submissions of counsel for the First Respondent that the approach taken by the Tribunal is not extraordinary. I do not accept that the conduct or questioning was demonstrative of pre-judgment or bias. More accurately, it is characterised as within the ambit of acceptable limits discussed in the authorities mentioned at [53] and [54] of these reasons, and is not capable of amounting to a basis for jurisdictional error.

    Conclusion

24. None of the asserted complaints or submissions made in support of the Application for Review have been established. The Application for Review is dismissed.

25. At the conclusion of the hearing, counsel for the First Respondent asked that the question of costs be reserved.  I will hear submissions from the parties as to what order for costs, if any, should be made on delivery of this judgment.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       17 February 2023

SCHEDULE OF PARTIES

MLG 2302 of 2017
Applicants
Fourth Applicant:	ETL17
Fifth Applicant:	ETM17