MZYVT v Minister for Immigration - [2012] FMCA 689

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYVT & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 689

MIGRATION – Assessment that the family are not people to whom Australia has protection obligations under the Convention – application for judicial review – whether IMRA procedurally fair – whether assessed according to correct legal principles – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 91(R)

Abebe v Commonwealth (1999) 197 CLR 510
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

First Applicant:

MZYVT

Second Applicant:

MZYVU

Third Applicant:

MZYVV

Fourth Applicant:

MZYVW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DR P. MCDERMOTT IN HIS CAPACITY AS INDEPNDENT MERITS REVIEWER

File Number:

MLG 227 of 2012

Judgment of:

Turner FM

Hearing date:

30 July 2012

Date of Last Submission:

30 July 2012

Delivered at:

Melbourne

Delivered on:

30 July 2012

REPRESENTATION

The First Applicant appeared In Person with the assistance of a Farsi Interpreter

Counsel for the First Respondent:

Ms Burchell

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application for judicial review filed on 21 March 2012 is dismissed.
The first and second named applicant’s are jointly liable to pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 227 of 2012

MZYVT

First Applicant

MZYVU

Second Applicant

MZYVV

Third Applicant

MZYVW

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR P. MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

The first named applicant, being MZYVT (the “applicant”), arrived at Christmas Island by boat on 31 August 2010 (Court Book “CB” p.205). The second named applicant is the spouse of the applicant; the Refugee Status Assessment (“RSA”) found her to be a member of the family unit involved in this matter. The third named applicant is the seven year old daughter of the first two applicants and was found by the RSA to be a member of the family unit in this matter (CB p.135). The same finding was made in relation to the fourth named applicant, who is now just under three years old.
All applicants are ethnic Faili Kurds born in Hamedan Province, Iran. The parents claim to be stateless (CB p.206.5). They claim to have no Iranian or Iraqi citizenship or no right to regain such citizenship (CB p.206.8). They claim that even if they are assessed to be refugees, they are unlikely to be allowed to re-enter Iran (CB p.206.8).
The applicants claim to have been discriminated against, verbally insulted and physically abused on many occasions, at the hands of Iranian state and non-state agents, by reason that they are Faili Kurds. The applicants were the subject of a RSA, which on 13 December 2010 found that they did not meet the description of a refugee in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (the “Convention”) (CB p.128).
The applicants then requested an Independent Merits Review Assessment (“IMRA”) which by a decision dated 27 January 2012, recommended that the applicants not be recognised as a person (sic “persons”) to whom Australia has protection obligations under the Convention (CB p.229). The applicants seek judicial review of the IMRA.
The application for judicial review contains the following grounds:
(1)The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations, the IMR was not procedurally fair.
(2)The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protections obligations, the IMR did not proceed by reference to correct legal principles, correctly applied.
By orders dated 3 April 2012 of which the applicant told the Court he received a copy, the applicants were to file and serve written submissions not later than 14 days before the hearing today. This was not done. The applicant represented the family unit before the Court today and Ms Burchell represented the first respondent.
The Court invited the applicant to make oral submissions in support of their applications but no submissions of substance have been made. Indeed, the applicant seems unaware of who even wrote the grounds in his application. The Court put to the applicant the content of ground 1, being that the IMRA was not procedurally fair. The Court then asked the applicant what he wished to say in support of that ground. The applicant stated that he did not write that ground and that “I am a Faili Kurd” and “similar cases have been given refugee status”.
The Court then put to the applicant the gravamen of ground 2 of his application, being an allegation that the IMRA did not proceed by reference to correct legal principles. Nothing was put to the Court to establish that ground.
The first respondent filed and served written submissions in this matter on 19 July 2012; Ms Burchell identified a copy of the submissions that the applicant had with him as proof that he had received them. However the applicant states that he was unable to understand the submissions. That is a matter for the applicant to decide. If he receives a copy of the document it is for him to obtain an understanding of that document.
The major findings of fact in the IMRA are as follows:
·It was found that Iranian authorities would not learn of the applications for asylum by the parents as such asylum applications are kept confidential (CB p.219.6). The Court assumes that what is meant by that is they are kept confidential by Australia.
·The assessor found, relying on advice from the Department of Foreign Affairs and Trade, that there is no reason why the applicants cannot return to Iran (CB p.219.7). The assessor found that the applicant would have the support of his brother who could also verify his identity.
·The assessor found that as he accepted the applicant’s evidence that “he left Iran with the permission of a senior official of the ‘governorship office’”; he concluded that the applicant would not face a real risk of persecution on return (CB p.220.1).
·The assessor did not accept that the applicants have any belief that they would be imprisoned on their return to Iran because they made no such claims at their entry interview. The Court referred the applicant to the finding at CB p.220.7 that “I do not accept that (the applicant) was ever imprisoned. I also do not accept that he was tortured in prison”.
·The assessor found that the claims of threatened imprisonment were implausible. And as stated, the assessor did not accept that the applicant had been tortured or imprisoned. The assessor was not satisfied that the applicant received threats from a senior official of imprisonment or death if he returned to Iran, as such claims had not been made at the entry interview (CB p.221.3).
·The assessor did not accept the applicant’s evidence that he could only work with the permission of the police as there was “no credible evidence… that the holder of a white card needs the permission of the police to work” (CB p.225.8).
·The assessor found that the UNHCR report from Ottawa about people’s work permits being terminated and they being forced to leave their long term jobs, did not apply to the applicant who has been self-employed (CB p.226.3).
·The assessor did not accept that the applicant had ever been imprisoned or detained by the police, and did not accept that the applicant suffered economic hardship or that he had to pay bribes to the police (CB p.226.5).
·On the basis of country information, which indicated that education, health services, and employment are available to non-Iranians, the assessor was not satisfied that the applicants suffered serious harm through a denial of basic services (CB p.226-227 [130]-[132]).
·The assessor was not satisfied that there was “cumulative harm as (“sic “that”) would amount to persecution for Convention reasons” (CB p.227.6).
·The assessor found that the applicants do not have a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social ground such as Faili Kurds or political opinion (CB p.228 [137]).
The above findings of fact or any other of the adverse findings of fact by the assessor are not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal”.
The Court observes that that statement of law applies to the IMRA.
“To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
“By s.420(2)(a) of the Migration Act (the “Act”), the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI Supra at [11].
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
The Court refers to the following decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
In this matter the applicant complains that the assessor did not accept his evidence. Those findings were for the assessor to make and are not amenable to review.
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:
“Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
And at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
“Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.
The Court refers to the following passages in Quin (supra) at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.
The Court does not find the exercise of power here to be so unreasonable that no repository of the power could have done it.
A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].
Here, the issue the applicants seek to agitate is no more than an impermissible attack on the factual findings of the IMRA. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said at [16]:
“I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.

Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 at [31]:
“This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal. The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]). Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’. No error is established”.
Although the above decisions refer directly to the Tribunal, they apply to the reasoning of the IMRA and establish that findings of fact by the assessor are not amenable to judicial review.
The assessor did not find the 2011 report of the UK Border Agency relevant to the applicant, in circumstances where they left Iran with the permission of a senior officer, and the parents had not been critical of the Iranian Government (CB p220.3 and p.220.4). The weight that the assessor gave to country information is a matter for the assessor, (applying NAHI (supra) at [11]). Both the choice and assessment of country information is a matter for the assessor. (Again, applying the decision in NAHI at [13] to the IMRA).
The assessor found that, given the applicant’s evidence that he had to surrender the white cards in return for obtaining permission to leave Iran (CB p220.9) the second named applicant’s evidence that the white cards had been lost was inconsistent. The assessor did not accept that the applicant surrendered the white cards at the Governorship Office (CB p.221.5). The assessor found that there was no evidence before him by which he could make a finding as to what happened to the white cards (CB p.221.8).
As stated by the Federal Court of Australia in Lee (supra) at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
The assessor made this correct statement of the law at CB p.227 [136]:
“The claimants assert that that they are stateless. It is difficult for me to make a finding that the claimants are stateless in view of the comment of (the second applicant) that she believes she had a genuine Iraqi passport. However, even if this contention is accepted I am bound by a decision of the Federal Court of Australia which establishes that mere statelessness is not sufficient to bring a putative refugee within the ambit of the Convention. In Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168 it was held by a Full Court of the Federal Court of Australia that a stateless person who was unable to return to that person’s country of former habitual residence was not entitled to be treated as a refugee where that person did not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”

Ground One

Ground 1 of the application before the Court is that the IMRA was not procedurally fair. The Court finds that the country information relied on by the assessor was put to the applicants and to their migration agent for comment. The Court refers to the following paragraphs of the IMRA where that is made evident – [19], [21], [28], [29], [60], [63], [91], [120] and [125]. Also, the applicants were put on notice of the issues concerning inconsistencies in their evidence and the failure to mention key claims during their entry interview – [18], [31], [35]-[40], [43], [57], [64], [68], [97] and [107], [110] and [114].
The Court finds that the applicants had a reasonable opportunity to present their case and to meet the arguments and material raised against them.
A denial of procedural fairness has not been established.
Ground 1 is dismissed.

Ground Two

Ground 2 of the application for judicial review alleges that the assessor did not proceed by reference to correct legal principles. The Court invited the applicant to put submissions in support of that contention but nothing was put to establish this ground.
The Court finds that the assessor correctly identified that the issue was “whether the applicants satisfied the criteria in s.36(2) of the Migration Act 1958 (the “Act”)” (CB p.205-206 at [6] to [9]).
The assessor made a finding that he was not satisfied that the applicants faced any threat of being killed or detained if returned to Iran and that they did “not have a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion” (CB p.228 [137]).
They are the correct tests to apply under Article 1A(2) of the Convention, being the definition of a refugee (CB p.205).
The assessor made a finding of fact that the applicants were not at risk of persecution as defined in s.91(R) of the Act. The assessor considered whether the applicants had a well-founded fear of persecution for a Convention reason (CB p.228 [137] – [140]).
The finding that the applicants were not at risk of persecution as set out in s.91(R) of the Act is set out at CB p.226 [128], [129] and [132]. It has not been established that the assessor did not proceed by reference to correct legal principles correctly applied.
Ground 2 is dismissed.
The applicant put to the Court that perhaps the assessor had some personal reason to reject his claims or not to accept them:
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
To establish bias the applicant would have to show that the assessor “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see e.g., Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507 (Jia) at 531 per 531 per Gleeson CJ and Gummow J.
A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.
The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:
“Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.
Further, the fact that the assessor did not believe the applicant’s claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.
The allegation of bias has not been clearly made and established. The applicant appears to be saying that the assessor must have been biased because he didn’t accept the applicant’s claims in circumstances where similar claims have been accepted. There is nothing to establish bias in this matter.
The application for a judicial review by the first-named applicant is dismissed.
The applications by the other members of the family unit are dependent on the outcome of this application for a judicial review. They are therefore dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 9 August 2012