MZYXO v Minister for Immigration

[2013] FCCA 11

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYXO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 11

Catchwords: JUDICIAL REVIEW– Adverse finding of credibility – whether corroborative evidence should be considered if primary evidence is not credible – evidence rejected.

Catchwords: MIGRATION – Adverse finding of credibility – independent unimpeachable basis for decision – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 420A, 424, 426(3), 474.

Cases cited: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195
Aon Risk Services Australia Ltd v Australian National University 239 CLR 175
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 the Minister of Immigration and Ethnic Affairs [1995] FCA 1682
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Haros v Linfox Australia Pty Ltd(ACN 004 718 647) & Anor(2012) 287 ALR 507 (2012) 287 ALR 507
Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177
Minister for Immigration and Citizenship v SZNSP(2010) 184 FCR 485
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
MZYNN v Minister for Immigration & Anor [2012] FMCA 96
MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
Re JRL; Ex parte CJL (1986) 161 CLR 342
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 (2008) 168 ALR 407
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Seltsam Pty Ltd v McGuiness(2000) 49 NSWLR 262
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
Subramaniam, Anadaraj v Minister for Immigration and Multicultural Affairs [1998] FCA 305
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZKJV v Minister for Immigration and Citizenship [2011] FCA 80
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZOZF v Minister for Immigration & Anor [2011] FMCA 364
SZHQC v Minister for Immigration & Anor [2006] FMCA 1275
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872.
Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: MZYXO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 487 of 2012

Judgment of: Judge F. Turner

Hearing dates: 9 October 2012 and 28 February 2013

Date of Last Submission: 28 February 2013

Delivered at: Melbourne

Delivered on: 12 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondents: Mr Horan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 27 April 2012 and amended application filed 17 August 2012 for judicial review are dismissed.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT MELBOURNE

MLG 487 of 2012

MZYXO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 23 March 2012.

2. The decision of the Tribunal affirmed the decision of a delegate to the Minister on 10 November 2010 not to grant the applicant a Protection (Class XA) visa (Court Book “CB” p.125). The decision of the Tribunal was issued more than ten months after the first hearing before it on 6 May 2011, and eight months after the second hearing on 19 July 2011.

3. The grounds in the application for judicial review are set out in the Application filed on 27 April 2012 as follows:

   (1)The reasons of the Tribunal fail to demonstrate the logical, reasoned process required of decision-makers by implication of both the general law and the requirements of s 430 of the Migration Act 1958 (the “Act”). Alternatively, the Tribunal erred by asking the wrong question in relation to the acceptance of the evidence of each witness in that it limited its consideration to assessing whether the applicant’s evidence was reliable.

   Particulars

   The member rejected the evidence of the applicant’s brother, cousin, wife, doctor and psychologist on the basis that the applicant’s evidence was unreliable. The decision if affected by error in the form of illogicality in the manner in which it dealt with the direct eye-witness evidence of the applicant’s brother and cousin. The reliability of one witness as to their own direct experience cannot lawfully be assessed against the reliability of another witness’ evidence where it is evidence of their own and derived from personal experience. This is especially problematic in circumstances where the applicant sought to have these witnesses give evidence and be subject to questioning by the Member during the second hearing and this request was rejected by the Member.

   (2)The decision relied upon a number of findings and statements for which no evidentiary basis was given.

   Particulars

   These findings included:

   (a)That the threatening letter from the Taliban were ‘manufactured’ in the absence of any particular reason why they did not appear genuine to the Member and absent forensic analysis of them;

   (b)That the applicant was untruthful to his medical doctors;

   (c)That a ‘diagnostic imaging report’ showed that the applicant’s mother was not depressed because of her husband and son disappearing. The same report is said to be for an abdominal ultrasound and laboratory tests referring to the liver, kidney, gallbladder, pancreas, spleen, uterus and ovaries.

   (d)That Taliban groups ‘most[ly] lack the ability and resources to locate and harm persons with relatively minor profiles. The willingness or capacity of these groups… is highly questionable’;

   (e)That the Taliban do not have the ‘motivation’ to target and pursue the applicant’s family and the family did not move as a result. The Member describes this, repeatedly, as ‘implausible’;

   Each of these findings is a matter of speculation and the positive findings are made by reference to no substantial material in support or contradiction of the only available evidence, being that of the applicant himself. In this sense, the Member made the decision in a way that failed to comply with his statutory obligations. Speculation does not qualify as reason. Section 430(1)(b) requires the Tribunal to set out its ‘reasons for the decision’.

   (3)Alternatively, the decision resulting from or relying upon the above finding is infected by jurisdictional error in that it took into account irrelevant considerations being matters the result of speculation, rather than matters of evidence or fact.

   Particulars

   The applicant refers to and repeats the particulars set out above.

   (4)The decision further breaches the requirements of s 430 of the Act with requires that the Tribunal must prepare a written statement that “…(c) sets out the findings on any material questions of fact….” in that it is also based upon a significant number of findings of no direct relevance to the applicant’s claim to protection.

   Particulars

   These findings include:

   (a)That the applicant was not enrolled in his course in Australia in the second semester of 2009;

   (b)That the applicant did not ask ASIO for advice on what to do about the threatening letters he claimed his family received. (Abandoned in Court).

   Assuming compliance by the Member with this statutory requirement, the Member regarded both of these findings as ‘material questions of fact’. Since neither relate to anything in Pakistan nor, directly, to his claims for protection it cannot be said that they are in any way material as findings. The finding in relation to ASIO in particular could not even be said to be linked to an assessment of the applicant’s credibility. (Last sentence deleted in Court).

   (5)The Tribunal erred by failing to take into account relevant considerations when determining the truthfulness of the applicant’s evidence.

   Particulars

   The Tribunal failed to consider whether the applicant was truthful because his evidence was, in part:

   (a)corroborated by other witnesses;

   (b)confirmed by medical opinion in relation to both his own and his mother’s medical situation.

   (6)The Tribunal erred by failing to observe the requirement to ‘act in a way that is fair and just’ (s 422B of the Migration Act 1958) in that it rejected the opportunity to receive evidence from the applicant’s brother and cousin Pakistan by telephone; and ASIO in relation to its dealings with the applicant.

   (7)The Tribunal failed to exercise its inquisitorial role in that the Member inferred from a lack of documentation about the applicant’s contact with ASIO that he had no such contact, in circumstances where such information was available and this was known to the Tribunal; and from a lack of country information from the Tribunal about the targeting of Sunnis for sending their children overseas to study that there was no such targeting in circumstances where there was positive evidence from the applicant.

4. The grounds in the amended application filed on 17 August 2012 are as follows (Ground 4(b) was abandoned in Court):

   (1)The Tribunal’s decision if affected by jurisdictional error in that it was issued more than ten months after the first hearing, from which adverse credibility findings were made.

   Particulars

   (a)The first hearing was held on 6 May 2011 and the second on 16 June 2011.

   (b)The final correspondence between the Tribunal and the Applicant was on 19 July 2011.

   (c)The Tribunal’s decision was dated 23 March 2012 – over a year after the first hearing. The decisions and reasons provide no explanation for the delay, but do acknowledge it.

   (d)A substantial reason for denying the protection visa claim was adverse findings in relation to the credibility of the applicant.

   (e)The delay caused real and substantial risk that the Tribunal’s capacity for competent evaluation of the applicant’s claims was diminished.

   (2)The Tribunal’s decision is affected by jurisdictional error by virtue of a reasonable apprehension of bias of the Member as demonstrated by findings of credibility on irrelevant matters and the timing of the delayed decision.

   (a)The member made adverse findings against the Applicant in relation to matters unrelated to his application, including findings that the Applicant:

   (i)was not enrolled in his course in Australian in the second semester of 2009;

   (ii)did not ask ASIO for advice on what to do about the threatening letters he claimed his family received.

   (b)Following a lengthy delay, the decision by the Minister was given the day before the Tribunal was required to consider the Applicant for a claim on complementary protection grounds pursuant to s 36(2)(aa) of the Act.

   (3)The Tribunal erred by:

   (a)failing to consider corroborative evidence on the basis of adverse credibility findings of the applicant such as to demonstrate an illogical reasoning process; and/or

   (b)denying the applicant procedural fairness by so rejecting corroborative evidence.

   Particulars

   The member rejected critical evidence of the Applicant’s brother, cousin, wife, doctor and psychologist on the basis that the Applicant’s own evidence was unreliable.

   Moreover the Tribunal failed to consider whether the Applicant was truthful because his evidence was, in part:

   a.corroborated by other witnesses;

   b.confirmed by medical opinion.

   The member declined the wish of the applicant that he take oral evidence of people giving evidence of their own experiences (and not hearsay). The Member’s decision was based on the Member’s own allegation that it would result in harm.

   (4)The Tribunal erred by failing to give genuine and realistic consideration to a request of the Applicant that it receive evidence from:

   (a)the applicant’s brother and cousin in Pakistan by telephone; and

   (b)ASIO in relation to its dealings with the Applicant (abandoned in Court).

5. At the hearing before the Court on 9 October 2012, Mr Albert of Counsel appeared for the applicant and Mr Horan of Counsel for the first respondent. The hearing concluded at 4.34pm before submissions for the first respondent were put to the Court. The Court therefore ordered that the first respondent file and serve written submissions in reply on or before 30 October 2012, and that the applicant file and serve any written submissions in response on or before 20 November 2012.

The applicant’s oral submissions to the Court on 9 October 2012

1. Mr Albert submitted that the applicant’s father received a letter from the Taliban threatening to kill the applicant if he returns to Pakistan, as he had become a non-Muslim (CB p.32-33).

2. Mr Albert submitted that in March 2010, the applicant’s father received a second letter from the Taliban wanting the applicant and his brother to join the Jihad and seeking financial assistance (CB p.36-37).

3. Mr Albert submitted that in May 2012, the applicant’s family received a third letter from the Taliban giving a warning for the last time (CB p.34-35).

4. After extensive analysis of the first letter (CB p.401), the second letter (CB p.402) and the third letter (CB p.403), the Tribunal found at CB p.404.3:

   “… in combination with further findings below, including credibility findings, that the applicant has manufactured the evidence of the threat letters and the claims surrounding those letters.”

5. It is for the Tribunal to accept or reject evidence as it thinks appropriate. As stated by the Federal Court in Lee v Minister for Immigration & Multicultural & 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.”

6. The Tribunal did not accept, as it found it implausible that:

   “… extremists would have the motivation to target and pursue the applicant’s family through a multiple of different address (sic “addresses”) throughout various cities in Pakistan, despite their best efforts to remain hidden.” (CB p.404.2)

7. The use of the description “implausible” was approved in Durairajasingham (post), as expressing the reason for disbelieving evidence, being that the Tribunal found it “inherently unlikely that events had occurred as alleged”.

8. The Tribunal found the applicant’s submissions concerning other family members or neighbour’s alerting the Taliban to the whereabouts of his family to be contrived and speculative, and that the applicant’s account of his family being located after moving so many times as “implausible” (CB p.404.9). The Tribunal set out details of its extensive analysis in reaching those conclusions (CB p.404-406).

9. The Tribunal did not accept that ASIO interviewing the applicant could have been a reason to fear harm in Pakistan (CB p.407.2). The Tribunal found that the applicant does not have a well-founded fear of harm in Pakistan on account of having been interviewed by ASIO (CB p.409.3).

10. The Tribunal considered the statement by the applicant’s brother and concluded that it did not accept that the brother had any expertise in relation to extremist threats of violence, and placed little weight on the bother’s statement (CB p.412.3). It is for the Tribunal to decide what weight it gives to evidence: see Lee (supra).

11. The Tribunal considered claims about the applicant’s brother and father and a referral from Dr Hossain to Tessa Young (a psychologist), and her report about the applicant (CB p.311). The Tribunal noted that the information recorded by Dr Hossain and Ms Young is “significantly different to that provided by the applicant to the Tribunal” (CB p.413.5). The Tribunal placed little weight on the report from Ms Young and the referral by Dr Hossain (CB p.413.10) [Lee (supra)], and did not accept that the reports corroborate the account given by the applicant of events in Pakistan (CB p.414.2)

12. The Tribunal did not accept “that the applicant’s father and brother have disappeared as he has claimed” (CB p.414.3).

13. The Tribunal found that the:

    “applicant does not in fact have a subjective fear of harm (much less a well-founded fear) from extremists in Pakistan on account of his having studied in the West, on account of his father’s business, on (sic “or on”) account of being generally westernised.” (Ibid)

14. The Tribunal did not accept that photos of the applicant with alcohol, with young women and in a Christian church were in fact placed on the applicant’s Facebook page (CB p.415.3). The Tribunal found that the applicant would not be at risk on account of being imputed to be a Christian (CB p.415.4).

15. The Tribunal found “unresolved inconsistencies in the applicant’s evidence” (CB p.416.3).

16. The Court adopts the following statements of the law:

    a)In Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at pp.558 to 559 the Full Federal Court said:

    “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”).  Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.”

    b)In Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467, Mansfield J stated at [36]:

    “It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated.”

1. The Tribunal here found that the applicant:

   “does not have a subjective fear of such harm, much less a well-founded fear on account of his attendance at a Christian school, on account of being imputed to be a non practising Muslim or on account of being imputed to be a Christian.” (CB p.416.4)

2. Here, the Tribunal did not accept that the applicant is a Christian, or has studied the Christian religion with his parents; and found that such evidence was contrived for the purposes of the application (CB p.416.9).

3. The Tribunal rejected the applicant’s evidence of having studied the (Christian) church (CB p.417.1).

4. The Tribunal gave little weight to the statement of Ms Aqeel (the applicant’s wife) (CB p.417.5).

5. The Tribunal found:

   “that the threat letters and a significant portion of the applicant’s evidence has been contrived or manufactured.” (CB p417.8)

6. The Tribunal found not credible, the applicant’s assertion that they (the applicant and his wife) might be targeted if they were in Pakistan as others might perceive them to be unmarried, or perceive them to be against their religion (CB p.418.2)

7. The Tribunal did not:

   “accept that the applicant will face a real chance of harm in Pakistan on account that his wife is perceived to not be a practising Muslim or on account of her clothing, on account of her having spent time in Australia, or on account of her perceived marital status” (CB p.418.5).

8. The Tribunal considered the delay by the applicant in lodging his claim for protection, and found that the applicant made a claim for protection motivated by a desire to stay in Australia as his student visa was due to expire, rather than any fear of harm for a Convention-related reason. The delay in making a claim for protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear of persecution: Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347

9. In Subramaniam, Anadaraj v Minister for Immigration and Multicultural Affairs [1998] FCA 305, Carr J held that even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.

10. Here, the applicant arrived in Australia on 14 July 2008 and applied for a protection visa on 18 August 2010 (CB p.354.3). The delay was just under two years. The Tribunal found the delay to be significant (CB p.419.1).

11. The Tribunal found that the applicant was:

    “attempting to be misleading in asserting that his mother had been hospitalised.” (CB p.419.5)

    And that:

    “The applicant has provided contradictory evidence concerning whether his mother was hospitalised. He subsequently conceded however, that she was not hospitalised.” (CB p.419.7)

12. The Tribunal found that:

    “the credibility of the applicant’s evidence has been significantly undermined by multiple inconsistencies and the implausibility of particular evidence he has given.” (CB p.419.10)

13. The Tribunal did not accept that the applicant or his family has been threatened with harm if he returns to Pakistan, unless he joins an extremist group (CB p.420.1).

14. The Tribunal did not accept that the applicant’s family in Pakistan had received threatening letters on account of the applicant’s study or time in Australia, or the decision by the applicant’s father to send him overseas to study (CB p.420.2).

15. The Tribunal did not accept that the applicant’s father and brother have been kidnapped or that the applicant faces harm in Pakistan on account of perceived anti-religious views (CB p.420.3).

16. The Tribunal did not accept that the applicant faces harm on account of his activities in Australia, or on account of him allegedly posting photographs of himself on Facebook (CB p.420.4).

17. The Tribunal did not accept that the photos were in fact posted on Facebook (Ibid), or that the applicant’s friends or family might be Taliban (Ibid).

18. The Tribunal found that the business of the applicant’s father is “not associated with western interests nor is it perceived to be so” (Ibid).

19. The Tribunal did not accept the applicant’s claim to have an actual or imputed political opinion of being supportive of western countries, or that he is imputed as a traitor (CB p.420.5).

20. The Tribunal was not satisfied that the applicant has a well-founded fear of harm on his return to Pakistan on account of:

    ·His own actual or imputed religious beliefs;

    ·Actual or imputed political opinion;

    ·His father’s actual or imputed religious beliefs; or

    ·On account of his belonging to a particular social group (to the extent that it could be described as such) of persons returning to Pakistan who have studied or lived in western countries (CB p.420.6).

21. The Tribunal did not find that such groups are particular social groups (Ibid). Findings of fact are not amenable to review.

22. The Tribunal did not accept that any meetings the applicant had with ASIO agents in Australia would place him at risk of harm in Pakistan (CB p.420.7). The Tribunal found that the applicant as a returnee from the west, or someone who had lodged a claim in Australia, would not face a real chance of harm in Pakistan for that reason, as country information “simply does not support such a contention” (CB p.420.8).

23. Having found that the applicant is not at risk of harm for a Convention reason now or in the reasonably foreseeable future, the Tribunal concluded that the applicant does not have a well-founded fear of harm arising from any imputed religious or political belief, and that he does not have a well-founded fear of harm arising from membership of a group of persons whose father’s undertake business, who have fathers who are successful businessman selling western goods, or have such a western style of marketing (CB p.420.9).

24. The Tribunal did not accept that the applicant has a well-founded fear of harm now or in the reasonably foreseeable future on account that his wife is perceived (or could be perceived) as not being a practising Muslim, on account of her imputed marital status, on account of her dressing in western style clothes, on living a western style life, or for having lived or studied in Australia (CB p.421.2).

25. The Tribunal did not accept that the applicant had a well-founded fear of persecution on his return to Pakistan now or in the reasonably foreseeable future on account of others imputing that he and his wife did not get married in a mosque or that she is an “Aussie girl” (CB p.421.4).

26. The Tribunal then assessed the applicant’s claims on a cumulative basis and found that there were:

    “significant inconsistencies and contradictions in the applicant’s claims such that the Tribunal has found the applicant has contrived the various claims he has to fear harm…”. (CB p.421.5)

    The Tribunal was correct in taking inconsistencies and contradictions into account Kopalapillai and Kamal (supra).

27. The Tribunal concluded that:

    “the applicant has invented many of the claims he has made in support of his protection application.” (CB p421.8)

28. The Tribunal then set out a summary of which claims it did not accept (Ibid), and found that the applicant does not have a fear of harm in Pakistan for the reasons he outlines, and that he will not be subject to serious harm, much less for a Convention-related reason, on his return to Pakistan (CB p.422.5).

29. The decision shows that the Tribunal considered all integers of the applicant’s claims and did not accept most of his evidence based primarily on inconsistencies and implausibility. The Tribunal made findings of fact which are not amenable to review.

30. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “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. 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 the merits of the case put to the Tribunal.”

31. And at [11]:

    “By s 420(2)(a) of the Migration 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.”

32. As stated in Selvadurai (supra):

    “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.”

33. The Court refers to the following decisions:

    ·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

    “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the 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.”

    The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact par excellence.

    ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai (supra) and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.

    ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

    ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

    “… there is no error of law… in making a wrong finding of fact…”.

34. In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 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.”

35. As stated in Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”

    The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

    The Court does not make that finding in this case.

36. 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.”

37. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (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]:

    “While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

    ·     the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and

    ·     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] HCA 14; (1999) 197 CLR 510.”

38. The Tribunal made adverse credibility findings, which are findings of fact per excellence: Durairajasingham (supra). The decision of the Tribunal was therefore based on rejection of evidence and adverse findings of fact, including credibility. Those findings are not amenable to review. There is therefore an independent basis for the decision of the Tribunal which is not affected by the alleged errors raised by the applicant.

39. Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].

40. The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:

    “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”

    [1] [1994] 1 SCR 202 at 228.

    [2]  Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].

41. As stated by Kirby J in SZBYR (supra) at [88]-[89]:

    “In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.

    When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”

42. Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [11]-[12]:

    “… ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [90].

    As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 at 400:

    ‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’ (emphasis added)

    See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).

43. The Court refers to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] by Tracey and Foster JJ and applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28]:

    “Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision.”

The applicant’s oral submissions to the Court on 9 October 2012 (continued)

1. Mr Albert submitted that the applicant fears harm because of membership of a particular social group:

   ·Of a returnee from a western country;

   ·Of members of the family of a successful business person engaged in international commerce, or

   ·People approached by foreign, national security personnel namely, in this case, ASIO.

2. The Tribunal considered the claims before it as to particular social groups (CB p.397.5 and p.420.9), and found that such particular social groups did not exist or that the applicant did not have a subjective fear of harm on those bases. Those findings of fact are not amenable review.

3. Mr Albert submitted that the applicant has a well-founded fear on the basis of his imputed political opinion by virtue of his ties to, and education in, Australia. As set out above, the Tribunal made a finding of fact rejecting that contention. That finding is not amenable to review.

4. Mr Albert submitted that the applicant has a well-founded fear of persecution on the basis of imputed religious beliefs by virtue of now being a non-practicing Muslim who has had interactions with Christian institutions. The Tribunal rejected that contention, which rejection is not amenable to review.

The ten month delay

1. Mr Albert submitted that the decision of the Tribunal is affected by jurisdictional error as it was issued more that 10 months after the first hearing (on 6 May 2011), from which adverse credibility findings were made (Transcript “T” p.4, l.38). The Tribunal’s decision is dated 23 March 2012. Mr Albert referred to para.13 of the written Outline of Submissions for the applicant (filed on 17 August 2010), which contains references to various adverse credibility findings. It is alleged that the delay led to a real and substantial risk that the Tribunal’s capacity to assess the applicant’s credibility was impaired.

1. However, regard must be had to the following statement by the Tribunal at CB p.394 [125]:

   “The Tribunal acknowledges that this matter has taken a considerable time to finalise. In reaching its decision the Tribunal has listened closely to the recordings of both hearings and has reviewed all of the written material submitted in support of the application and considerable country information. The delay in finalising the reasons for decision has not affected the findings or conclusions about the claims or evidence.”

2. It is clear therefore that the decision of the Tribunal is based on the recorded record and the material; and not primarily on the demeanour of the applicant.

3. Mr Albert referred to the decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 per Gleeson CJ at 174.

4. At [8] Gleeson CJ stated that in that case:

   “… there were a number of examples of findings by the tribunal, adverse to the appellants, that turned on an assessment of their credibility in circumstances that must have been influenced by the tribunal’s observation of their demeanour.” (emphasis added)

Written submissions for the first respondent

1. Mr Horan submitted that the case of NAIS (supra) is distinguishable from the present case as:

   (1)“…the Tribunal’s central findings were not based solely or even significantly on matters of demeanour…”;

   (2)Here, there was a nine month delay between the second hearing (on 16 June 2011) and the decision, whereas in NAIS there was a four and a half year delay;

   (3)The Tribunal here “acknowledged and made allowances for the time taken to finalise its decision…” by listening closely to the recordings of the hearings and reviewing all the written material.

2. Mr Horan made submissions in relation to the decision of Whelan FM in MZYNN v Minister for Immigration & Anor [2012] FMCA 96 that a 15 month delay in reaching a decision created a real and substantial risk that the Tribunal’s capacity to assess the evidence was impaired so that the applicant was denied a fair hearing. That decision was overturned on appeal to the Federal Court in Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177.

3. In MZYNN on appeal (supra), Gray J considered whether a 15 month delay to the decision by the Tribunal was too long and meant that the decision of the Tribunal was invalid. Gray J considered the decisions in NAIS (supra) and Aon Risk Services Australia Ltd v Australian National University 239 CLR 175, and did not apply the statement in NAIS that “the findings on credibility must have been based on demeanour, or the resulting inference”. Gray J found that the assessment of evidence in MZYNN was based on the applicant’s own evidence; That is what occurred in the present case. As in MZYNN, the Court does not find that the Tribunal’s assessments were based on the applicant’s demeanour – and even if they were, the delay here does not amount to jurisdictional error by denial of procedural fairness.

4. The Court finds that the decision in NAIS (supra) is limited to the facts in that case, including the inordinate delay of four and a half years. NAIS was a “particular, unusual case”: NAIS at [4]. The Court finds the decision in NAIS to apply to circumstances where there are delays of four and a half years or more; the Court therefore does not apply NAIS to this case. “The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare”: NAIS at [5].

5. The delay here, as in MZYNN, is in part explained by the fact that the decision occupies 69 pages and contains 248 paragraphs. As distinct from NAIS (at [3]), the delay here is recognised in the reasons at [125]. The Court does not find that the Tribunal drew out its “procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished”: NAIS at [11].

6. The requirement for a countervailing consideration, referred to by Gleeson CJ in NAIS (at [10]), is here set out in CB p.394 [125].

7. The delay here was nine months (first hearing 6 May 2011 – decision 23 March 2012).

8. In SZKJV v Minister for Immigration and Citizenship [2011] FCA 80 and MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552 which both post date NAIS, periods of eight months to decision were found not to invalidate the decisions of the Tribunal.

9. In SZKJV (supra) Reeves J at [1], considered:

   “whether the reconstituted or second Tribunal delayed for so long in delivering its decision that it committed jurisdictional error of the kind identified in NAIS”.

10. The delay in SZKJV was between August 2008 and October 2009. The Tribunal found that the evidence provided by the applicant was not truthful (SZKJV at [10]). The grounds in SZKJV for judicial review included:

    “4.    The RRT decision was contrary to the principles in NAIS…”.

    The appeal in SZKJV contained a similar ground. Barnes FM had decided that an eight month delay “could not be categorised as inordinate” SZKJV at [16].

11. Reeves J noted in SZKJV at [25] that in NAIS (supra) Gleeson CJ stated the:

    “circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare”.

12. Reeves J referred at [32] to the decision of Callinan and Heydon JJ in NAIS at [172] about where a Tribunal “permits so much time to pass that it can no longer assess the evidence offered.”

13. Reeves J referred at [34] to the decision of Graham J in MZXRE (supra) that the eight month delay there could not be described as unfair, where her Honour found that:

    “the Tribunal had provided closely reasoned explanations for its findings that the appellant was not a witness of truth, dealing with each of the various aspects of her claims in turn.” SZKJV (supra) at [17]

14. The Court finds that the Tribunal adopted the same approach here.

15. Reeves J observed in SZKJV at [24] that of the decision in NAIS that:

    “it was critical to the decisions of the majority that the Tribunal had based its rejection of the appellants’ claims upon its observations of their demeanour at the hearings before it.”

16. The decision in NAIS is distinguishable from here on a number of grounds. The Tribunal here based its rejection of the applicant’s claims and on inconsistencies in his evidence, and not primarily on his demeanour.

17. After considering all the issues outlined above, the Court finds that the claim that the Tribunal’s decision involved jurisdictional errors of the kind identified in NAIS does not have merit, as the Tribunal’s findings against the applicant here were not solely, or significantly, founded on an assessment of his demeanour, but were based on inconsistencies in the written and oral material presented by the applicant.

18. The Tribunal met the need identified by Kirby J in NAIS at [88] to:

    “say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked.”

19. Reeves J in SZKJV at [42] did not consider the eight month delay to be “lengthy, significant, protracted or serious” as the delay in NAIS was categorised.

20. Reeves J noted at [43] that in the case before him, there was:

    “…nothing on the face of the Tribunal’s reasons to suggest that it took the path to easy resolution that Kirby J mentioned in his decision in NAIS. Nor is there any evidence of them being prepared with undue haste, or with a lack of proper consideration to the claims and issues raised by the appellant. In short, I consider there is nothing in the Tribunal’s reasons to suggest the delay in this case resulted in any relevant unfairness to the appellant.”

21. The Court makes similar observations about the decision of the Tribunal in this matter.

22. The Court refers to the decision of Gray J in MZYNN on appeal (supra) that:

    “What is required is the demonstration of some flaw in the process of arriving at the decision, that can reasonably be attributed to the passage of time…”.

    The Court does not find any such flaw here.

23. In Aon (supra), Heydon J considered ten months was an excessive period to reserve an interlocutory judgment on issues relating to the preparation of a case for trial [152].

24. In MZYNN on appeal (supra) Gray J commented on that passage at [23] by referring to the decision of Whelan FM that:

    “The issue is therefore whether the delay… impaired the Tribunal’s capacity to make an assessment of the credibility of the Applicant or in some other way rendered the decision unsafe.”

25. Gray J stated at [32]:

    “It is abundantly clear from the authorities that the occurrence of a lengthy delay between a hearing or the receipt of submissions and the making of a decision does not itself constitute error (whether jurisdictional error or other error) on the part of the decision-maker. What is required is the demonstration of some flaw in the process of arriving at the decision, that can reasonably be attributed to the passage of time. This is so whether the decision-maker is a court, a tribunal, or some other administrative official. It is true, as the federal magistrate said, that Heydon J in Aon said that 10 months was an excessive period to reserve an interlocutory judgment on issues relating to the preparation of a case for trial. His Honour’s stern statement followed an express recognition of the absence of a “good explanation” for the delay. His Honour went on at [153] to link the delay with deficiencies in the reasons for judgment, namely:

    failure to refer to the affidavit evidence or the cross-examination of ANU’s solicitor, failure to appreciate the gulf between what counsel for ANU said were the reasons for the amendment and what the evidence on the point was, and failure to identify what factors, if any, there were which explained ANU’s failure to appreciate and raise the new claims earlier.

    Those deficiencies clearly had more to do with his Honour’s view that the interlocutory judgment should be reversed than did the mere fact of delay. Heydon J appears to have been the only member of the High Court in Aon to deal with the delay issue.”

26. Gray J observed at [33] that in NAIS two members of the Court dissented (Gummow and Hayne JJ). Gray J referred to the decision in Haros v Linfox Australia Pty Ltd (ACN 004 718 647) & Anor(2012) 287 ALR 507 where NAIS was considered at [27].

27. The Full Court in Haros stated at [28] that:

    “There are dangers in the adoption and mechanical application of a rule such as that a delay in giving judgment of 12 months from the giving of evidence must always be excessive. It is necessary to take account of the circumstances of the particular case.”

    And at [30]:

    “There are many reasons for caution in finding that a judge has denied fairness to the losing party in a case by reason of delay… In determining whether there has been excessive delay, sufficient to deny fairness to a party, much more needs to be examined than simply the length of the delay.”

28. In NAIS Gleeson CJ decided at [5] that “the circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare”. The Court does not find that such circumstances exist here. The findings on the evidence and credibility here were not based mainly on the demeanour of witnesses, but on inconsistencies in the evidence provided by the applicant and the apparent implausibility. The Tribunal was not required to recall the demeanour of the applicant, except to the extent raised by Mr Albert in his written submissions in response (post).

29. The Court rejects the argument that the delay vitiated the decision of the Tribunal in the circumstances of this case.

Bias

1. The applicant makes a claim of apprehended bias against the Tribunal as it handed down its decision one day prior to the commencement of the “complementary protection” provisions contained in s.36(2)(aa) of the Migration Act 1958 (the “Act”). Those provisions commenced operation on 24 March 2012. The Tribunal’s decision is dated 23 March 2012.

2. The fact that the Tribunal handed down a decision the day before a new law commenced does not give reason for a fair minded lay observer to apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.

3. Section 36(2)(aa) of the Act provides:

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.

4. The Tribunal applied the operative law at the time. To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [59].

5. 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 be properly reached, the decision-maker has made up his or her mind and was incapable of being persuaded differently: see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at p.531 per Gleeson CJ and Gummow J.

6. A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Jia (supra). A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.

7. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at p.434, the High Court stated (citing Ebner v Official Trustee in Bankruptcy (M131 of 1999) (2000) 176 ALR 644 at p.647 per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:

   “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”

   There is nothing to show that here a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.

8. The Court refers to the following passage in SCAA v Minister for Immigration & Multicultural & 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.”

9. Further, the fact that the Tribunal did not believe his claims is not evidence of bias: see Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872.

10. Mr Albert relies on the decision in Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85 where the Court said at [43]:

    “... A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure – whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, in the course of a valuable review of the significance of delay in the delivery of judgments: ‘...a long delay can give rise to disquiet ... because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.”

11. The Court observes that here, the length and complexity of the Tribunal’s decision shows that it was not rushed through before the new provisions commenced, nor were the issues too much for the member to grapple with.

12. 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 proved”: see SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22] citing Jia (supra).

13. The Court also accepts that:

    “…it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”

    von Doussa J in SCAA (supra) at [38].

14. The fact that a decision is made the day before new laws commence does not show bias. The applicant claims that if his decision had been delayed until 24 March 2012 (which is when s.36(2)(aa) commenced), he would have had another basis on which to claim relief. That may be so, but the Tribunal is not required to wait for new laws to commence operation before handing down a decision.

15. Pursuant to a direction made by the Principle Member of the Tribunal under s.420A of the Act (1 December 2012) members had been directed that:

    “The anticipated introduction of complementary protection criteria into the Act is not a reason in itself to delay making a decision on a protection visa review. To the contrary, RRT cases that can be decided before the commencement date should be decided before that date.”

    The member was therefore complying with a lawful direction by delivering the decision when he did.

16. The Court finds that s.36(2)(aa) did not apply to the application at the date of decision. Nothing has been put to establish bias. The applicant also alleges bias because of the ten month delay. The Tribunal considered the facts extensively, and wrote a lengthy decision in the matter. Those complaints of bias are dismissed.

17. The third allegation of bias is the extent to which the Tribunal thought it necessary to make negative credibility findings.

18. The Court refers to the following passage in SCAA (supra) 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.”

19. Further, the fact that the Tribunal did not believe the applicant’s claims is not evidence of bias: see SBAN and VFAB (supra)

20. The Court finds no substance in the allegations of bias. All allegations of bias are dismissed.

21. Mr Albert alleges that the Tribunal by failing to consider corroborative evidence, on the basis of adverse credibility findings against the applicant demonstrates an illogical reasoning process.

1. As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [32]:

   “… the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29].”

2. The Court refers to and adopts the following passages in SZOZF v Minister for Immigration & Anor [2011] FMCA 364 at [31]:

   “… as Crennan and Bell JJ in SZMDS make clear, not every lapse in logic will give rise to jurisdictional error.[3] Rather, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence.[4]”

   And at [33]:

   “Further, the assessment of the applicant’s visa was an issue of fact upon which different minds might reach different conclusions.[5] There is no error in the assessment of such evidence where reasonable minds might come to different conclusions and the weight to be given to this evidence was a matter solely for the Tribunal to determine.[6]”

   And at [35]:

   “On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal… Accordingly, the applicant’s description of the Tribunal’s reasoning as being “illogical” or “unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it.[7]”

   [3]  Minister for Immigration and Citizenship v SZMDS & Anor (2010) 266 ALR 367 at [130].

   [4] Ibid. [130].

   [5] Ibid. at [131].

   [6] Minister for Immigration and Citizenship v SZJSS & Ors (2010) 273 ALR 122 at [35].

   [7]  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J.

3. In SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 Greenwood J decided at [32] that a finding not based on logical grounds will give rise to an error of jurisdiction if there is no evidence to support the finding. The Court does not find the reasoning of the Tribunal to be illogical.

4. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. 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 enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has 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] FCA 719; (1999) 93 FCR 220 at [146]:

   A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka[1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] 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.”

5. The Court refers to and accepts the submissions of Mr Horan (post) on SNSP and Applicant 320/2002 (post).

6. This ground is dismissed.

7. Mr Albert submitted next that the Tribunal refused to receive evidence from the applicant’s brother and cousin in Pakistan. It can be seen from the decision that the Tribunal was concerned about contacting those persons by telephone as that may disclose confidential information to extremists (CB p393.5), which could endanger the applicant and his family. An opportunity was provided, and taken, for those persons to give evidence in the form of written signed statements. Those statements were taken into account and addressed (CB p.393 [120]).

8. Mr Albert submitted that the Tribunal should not have raised the security concerns (supra) because in its decision, the Tribunal found that the applicant and his family could not easily be located in Pakistan. However the decision was written at a later stage. It is obvious that the Tribunal had concerns not to breach the security of the applicant and his family at the time it raised the concerns.

9. There is no positive obligation on the Tribunal to obtain further information: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43].

10. Whilst s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. As stated in SZHQC v Minister for Immigration & Anor [2006] FMCA 1275 at [33]:

    “The Tribunal has the power to obtain further information… it does not have a duty to investigate the Applicant’s claims.”

11. In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383, Driver FM stated at [34]:

    In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare.  At [25]-[26] his Honour said:

    “The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:

    ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...

    This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:

    [214]... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.

    The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be “strictly limited”: Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.

    Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.”

12. The Court finds that the Tribunal adopted an appropriate procedure to obtain the evidence of the witnesses –in the form of written signed statements. The Tribunal’s security concerns were a valid issue for it to take into account in exercising its discretion under s.426(3) of the Act. Ground 4(a) of the Amended Application is dismissed.

13. Ground 4(b) of the Application was abandoned at the hearing (T p.28, l.40).

14. Mr Albert referred to the decision in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 as to whether the Tribunal was bound to seek evidence from the applicant’s brother and cousin. As the evidence was obtained in the form of written signed statements and is dealt with (supra), no further consideration need be given to this argument.

15. In circumstances where the Court has found that the non-acceptance of most of the evidence is an independent and unimpeachable basis for the decision of the Tribunal, the Court finds it unnecessary to consider the other submissions for the applicant.

Written submissions for the first respondent

1. Mr Horan made extensive submissions on NAIS, MZXRE, SZKJV, MZYNN and Aon (supra) which have largely been accepted by the Court.

2. As to bias, Mr Horan contends that apprehended bias must be firmly established. He referred to Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352 as follows:

   “It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

3. The Court applies that decision here. The Court finds no ground for a reasonable apprehension of bias by the Tribunal.

4. As to the “complimentary protection” provisions, Mr Horan referred to direction 1/2012 of the Principle Member which has been taken into account (supra).

5. Mr Horan disputes that the Tribunal had made findings of fact that were irrelevant to the Tribunal’s reasons. The Court accepts Mr Horan’s summary relating to the relevant facts in paras.17.1 and 17.2 of his written submissions.

6. As to the complaint about the rejection of corroborative evidence, Mr Horan submits that the same submission as the applicant’s submission, “that rejection of corroborative evidence, based on an adverse credibility finding against the applicant, is illogical” was run and lost in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. That is correct.

7. Mr Horan referred to Minister for Immigration and Citizenship v SZNSP(2010) 184 FCR 485 where at [30] North and Lander JJ held:

   “We do not agree with the contention that it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected.”

   And at [33]-[34]:

   “Thus, consistently with Applicant S20/2002… it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

   It was not part of the first respondent's case that the RRT erred in its assessment of the weight of the corroborative evidence. Indeed no such submission could have succeeded. Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.”

   The Court applies that decision here.

8. Katzmann J held similarly at [50], that having reached a conclusion that the applicant had lied, there was:

   “… nothing illogical about deciding that evidence proffered as corroboration of an account found to be false deserves little or no weight. Here, where the credit of the first respondent was very much in issue, there was certainly nothing illogical or irrational in rejecting the document she submitted to bolster it in the absence of any proof that the document was genuine or its contents unaffected or uninfluenced by her”.

9. The Court accepts that the applicant had claimed that the Taliban listened in on telephone conversations. The applicant’s representative confirmed the legitimacy of those fears, and advised the Tribunal to be “very careful” (CB p.387 [99]).

10. Mr Horan submitted correctly that the Tribunal did not ignore or refuse to consider evidence from the witnesses in Pakistan. It allowed written signed statements to be submitted, and after considering them, gave them little weight: see Lee (supra).

11. Mr Horan referred to s.426(3) of the Act which is as follows:

    If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

12. The Tribunal gave real and genuine consideration to the applicant’s wish to lead evidence from those witnesses, and gave reasons why they should not be contacted by telephone. It considered their signed statements.

13. The Court accepts Mr Horan’s submissions that the applicant has not identified any miscarriage in the Tribunal’s exercise of its discretion under s.426(3) of the Act.

Written submissions for the applicant in response

1. Mr Albert submitted that:

   “many of those credibility assessments (of the applicant) were described as being, or were plainly based, upon the applicant’s appearance in the hearing with the member”.

2. Mr Albert refers to the finding that the applicant appeared “unsure” (CB p.377 [59]).

3. “Demeanour” is defined in Butterworths Australian Legal Dictionary as:

   “The conduct, appearance or behaviour of a person, generally a witness, upon which the tribunal of fact may rely in order to determine the credit or reliability of the evidence given by the witness. A witness’ demeanor in the witness-box (of which it is accepted a judge may take account) should be regarded as extending to the manner in which the witness enters and leaves the witness-box: Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304. Observations about those matters made when the witness is outside the witness box must be put to counsel, and an opportunity to respond provided, if the observation is to significantly affect the tribunal’s decision: Government Insurance Office of New South Wales v Bailey; Zantiotis v Zantiotis (1993) 113 ALR 441.”

4. Observing that a witness is “unsure why they did not take a copy of the letter” is an observation as to demeanour.

5. Mr Albert referred to the finding that the applicant “appeared to be speculating” (CB p.379 [66]) and that his “evidence appeared speculative” (CB p.384 [81] and p.416 [218) which are observations about demeanour.

6. Mr Albert referred to the observation that the evidence was also given in a “vague… fashion” (CB p.416 [219]) which is an observation as to demeanour

7. Mr Albert referred to observations that evidence was “contrived”. He referred to:

   ·Passages in CB p.402 [165], but that observation was that the evidence was “tailored and unreliable”;

   ·CB p.404 [174] and the observation that submissions were “contrived or speculative”;

   ·CB p.408 [185] and the observation that a claim about ASIO was “a contrivance”;

   ·CB p.413 [207] that the applicant had “contrived” much of his application. These are not observations of the demeanor of the applicant;

   ·CB p.415 [212] that photos alleged to have been put on Facebook “are contrived”; that is not an observation of the demeanor of the applicant;

   ·CB p.416 [219] that the applicant’s evidence concerning his attendance at churches “…is contrived…”. That is not an observation about the demeanour of the applicant;

   ·CB p.417 [223] that the threat letters were “contrived or manufactured”. That is not an observation about the demeanour of the applicant;

   ·CB p.421 [240] that “the applicant’s evidence, that he or his wife might be at risk of harm because people in Pakistan do not know they are married, is contrived”. Again that is not an observation of the demeanour of the applicant;

   ·CB p.421 [241] that the applicant “contrived the various claims”. Again, that is not an observation about the demeanour of the applicant; and

   ·To para.255. That paragraph does not exist in the decision.

1. The Court finds that there were some observations about the demeanour of the applicant, but does not find that the delay vitiates the decision of the Tribunal. “The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare” [NAIS (supra) per Gleeson CJ).

2. As stated above, the Court does not accept that in each of the instances raised by Mr Albert “the Member was not using these to describe the content of the Applicant’s evidence, but the way he gave that evidence”. In many instances, the findings are about the evidence itself.

3. Mr Albert submitted that the decision in NAIS (supra) does not mean that a delay has to be of the same length of the delay in that decision in order to vitiate a decision. Having considered authorities (supra), the Court finds that the delay must be significant for it to vitiate a decision. The delay here does not fall within the category of delay considered in NAIS, and is around the length of delays which have been found not to vitiate decisions [MZYNN, SZKJY, MZXRE (supra)].

4. The inference that procedures were unfair as a result of delay, is not available as there is a reasonable explanation for the delay. The closely reasoned decision of 248 paragraphs and 69 pages is of itself a reasonable explanation for the delay. The member considered all integers of the claims and all the evidence. The Tribunal referred to the delay (CB p.394 [125]). The explanation is in the length and complexity of the decision. The inference in NAIS does not need to be rebutted, as the delay here does not give rise to the inference.

5. Mr Albert asked why, if the High Court can issue a decision of 100 pages eight days after a final hearing in (Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144), this Tribunal could not issue the decision earlier? Factors such as the extent and complexity of evidence and workload, may affect how long it takes to issue a decision. Speculation on these issues is of no assistance to the Court.

6. Mr Albert submitted that the decision here took almost three times the average time to decision by the Tribunal. The point is of no consequence. The authorities show that delays of similar periods have not vitiated decisions. Also the delay reflects the complexity and length of the decision.

7. Mr Albert submits that the threat letters should not have been rejected in the absence of evidence that the letters were fake. The Tribunal gave the letters detailed consideration and made findings of fact that are not amenable to review.

8. Errors of fact do not give rise to jurisdictional error if there is some evidence to support the findings.

9. The Court refers to the decision of Collier J in SZINP (supra) at [26]:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (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]:

   “While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

   ·the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and

   ·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] HCA 14; (1999) 197 CLR 510.”

10. A wrong finding of fact is not a jurisdictional error: see Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36 per Brennan J.

11. It was held in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83] that:

    “A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.”

12. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. 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 (supra), 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 enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has 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] FCA 719; (1999) 93 FCR 220 at [146]:

    A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka[1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] 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.”

13. Mr Albert referred to the decision in Seltsam Pty Ltd v McGuiness(2000) 49 NSWLR 262, which the Court finds of no relevance having regard to the authorities cited above.

14. Mr Albert referred to the decision of Whelan FM in MZYNN (supra) and submitted that it is not directly analogous with the case here. Mr Albert submitted that the Tribunal here took a “short cut to a decision”. That submission is rejected; The length and complexity of the decision shows that submission to be unsound.

15. Mr Albert submitted that no explanation was given for critical adverse findings. That is not so. The Tribunal examined the issues extensively before making findings on them.

16. Mr Albert submitted that the Tribunal did not accept evidence about threats to the applicant’s family after he came to Australia. This amounts to a claim that the Tribunal should have accepted certain evidence. It is for the Tribunal to accept or reject evidence proffered as it thinks appropriate in the circumstances: see Lee (supra).

17. Mr Albert submitted that there was jurisdictional error because there were grounds for a reasonable apprehension of bias. He submitted that apprehended bias is based on the decision being handed down just before the “complementary protection” provisions commenced, after a long unexplained delay in handing down the decision. The direction by the Principle Member has been referred to (supra). The Tribunal was acting in conformity with that direction. The fact that the decision was handed down the day before the new provisions commenced does not show bias.

18. Mr Albert considered what his client could have claimed under the “complimentary protection” provisions. The provisions were not operative at the time. The submission is irrelevant. Whether such a claim would fail or succeed is irrelevant conjecture.

19. Mr Albert submitted that the Tribunal making two irrelevant adverse credibility findings is a basis for an apprehension of bias. As decided (supra) the adverse credibility findings were not irrelevant. They do not give rise to an apprehension of bias.

20. Mr Albert restates his submission that a long delayed decision handed down the day before the “complimentary protection” provisions commenced, give rise to an apprehension of bias. The Court does not find that this would give rise to an apprehension of bias.

21. Mr Albert submitted that the Tribunal erred by failing to consider corroborative evidence on the basis of adverse credibility findings of the applicant as that was illogical.

22. The Tribunal explained that it was hesitant to make telephone calls to members of the applicant’s family in Pakistan as they may well breach the security of the applicant and his family.

23. It is claimed that the applicant’s reason for caution was “capricious” [Shorter Oxford Dictionary – “a sudden turn if mind, without apparent motive, fantastic, full of conceit”]. Here the apparent motive was to protect the security of the applicant and his family. That submission as to capricious action is rejected. True it is that the Tribunal found subsequently that there was no basis for such security concerns. Properly, that finding was made after all the evidence and material was in and considered. The fact that the Tribunal made a statement in the first hearing was merely testing what was put before the Tribunal (CB p.380 [69]).

24. Mr Albert submitted that the Tribunal should not have taken a cautious approach. That submission is unsound. The approach taken by the Tribunal was appropriate, and written signed statements were obtained and considered.

25. Mr Albert submitted that the evidence by the applicant’s brother and cousin was critical – that evidence was put before the Tribunal and considered.

26. Mr Albert submitted that such evidence was primary evidence and should not have been dismissed as corroborative evidence of the applicant who has been found to lack credibility. The Tribunal gave the evidence little weight. Weight is a matter for the Tribunal [Lee (supra)]. There was no denial of procedural fairness.

27. Mr Albert submitted that the Tribunal was required by s.426(3) of the Act to make enquiries. Section 426(3) specifically states that the Tribunal “is not required to obtain evidence (orally or otherwise)…”.

28. The Court finds no error in the way the Tribunal exercised its discretion.

29. At the end of the hearing on 4 October 2012, there was insufficient time for Mr Horan to put oral submissions on behalf of the first respondent. As a result, the Court ordered the first respondent to file and serve written submissions on or before 30 October 2012, and the applicant file and serve any written submissions in reply on or before 20 November 2012. Those submissions were filed and served.

30. The first respondent then sought to make oral submissions to address any questions that the Court may have arising from the written submissions. The matter was listed on 28 February 2013 but as no issues arose out of the written submissions which the Court required to be addressed, oral submissions were not heard.

31. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

32. Even if jurisdictional error was established there is an independent and unimpeachable basis for the decision. The decision is based on the rejection of evidence and adverse findings of fact including credibility. Those matters are not amenable to review.

33. The application for judicial review is dismissed.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Date:  12 April 2013