MZZQC v Minister for Immigration

[2015] FCCA 233

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 233

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether Tribunal failed to take into account a relevant consideration – allegation of an apprehension of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 336A, 336E, 336F, 424A,425, 427, 476

Privacy Act 1988 (Cth), ss.6, 15. Schedule 1

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31
MZXBQ v Minister for Immigration &Citizenship [2008] FCA 319
Minister for Immigration & Ethnic Affairs v  Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406
Goldie v Commonwealth of Australia (2000) 180 ALR 609
Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration and Citizenship v SZKTI & Anor [2009] HCA 30
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
SZQSP v Minister for Immigration & Anor [2012] FMCA 890
SZRRX v Minister for Immigration & Anor [2013] FMCA 84

Applicant: MZZQC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1224 of 2013

Judgment of: Judge Nicholls

Hearing date: 30 September 2014

Date of Last Submission: 29 October 2014

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

ORDERS

1. The application made on 6 August 2013 and amended on 17 March 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $8640.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 1224 of 2013

MZZQC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 August 2013 and amended on 17 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 July 2013 [the Tribunal’s decision record reports that the decision was made on “25 July 2012”. In context, this is a typographical error, and should read “25 July 2013”] which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister in these proceedings (“Court Book” – “CB”). The following is relevant as background.

2. The applicant is a citizen of Mongolia. He arrived in Australia on 25 June 2008 as a visitor. He applied for a protection visa on 25 June 2012 (CB 1 to CB 33). His claims to protection were initially set out in a Statutory Declaration (CB 34 to CB 40).

3. The applicant claimed to fear harm from the Mongolian authorities for reason of his, and his father’s, political profile and activities.

4. The applicant claimed that his father had previously been “chief of police” in Mongolia. However, he had been “fired” after he did not cooperate with the “People’s Revolutionary Party” ([4] – [5] at CB 34). His father then became politically active, and following the applicant’s return from Germany in 2004, where he had been studying, he assisted his father in his campaigning ([6] at CB 35).

5. The applicant claimed that he was persecuted and harmed while campaigning for his father ([7] at CB 35). He claimed that in June 2004 he had been targeted, by having shots fired at a group he was campaigning with and, was then “handcuffed… blindfolded”, and driven to an “empty building” where he was “beaten”, until his father was called and told to stop his campaign ([7] – [8] at CB 35).

6. The applicant also claimed that he was released “two or three days later” and had to receive medical attention. He claimed that as a result of the attack on him, his father had told people not to vote for him, as he feared for his family’s safety. Further, the applicant claimed that he had made a complaint about the electoral process, and the harassment, to a “foreign observer”, whose car was later “torched” ([12] at CB 36). Following the election, the applicant claimed that his father “withdrew” from society ([14] at CB 36).

7. The applicant moved to the United States of America (“the USA”) in 2005, where he continued his political activism against the Mongolian government ([15] – [16] at CB 36 to CB 37). The applicant returned to Mongolia in 2008. He claimed that he was visited by “intelligence personnel” and told “this is enough of what you are doing” ([20] at CB 37). The applicant assumed that this was with reference to his previous activism in Mongolia and the USA.

8. The applicant further claimed that his father returned to politics in 2008 for the election, as a member of the Social Liberal Party. The applicant claimed that he became involved in campaigning again, and was present when a riot broke out that damaged government property. After the riot, the applicant feared for his life and left Mongolia, arriving in Australia, via the People’s Republic of China, on a visitor visa.

9. The applicant has been in Australia since 25 June 2008. He stated he had lost his passport about one month before his visitor visa ceased to have effect. However, he said he did not wish to approach the Mongolian embassy to obtain a new one.

10. He stated he had been employed, variously, by a Toyota dealership and by a private car dealership. During this time he was found guilty of “obtaining financial advantage by deception” as a result of writing cheques that could not be honoured. It appears he had also done this in the USA. In Australia, he was sentenced to four years imprisonment with a minimum non-parole period of two years. He was on parole when he applied for a protection visa.

11. The Minister’s delegate wrote to the applicant on 10 September 2012 and invited the applicant’s comment on certain information which the delegate said may lead to an adverse inference being drawn, as to his being a witness of truth. The information related to statements made by the applicant in his protection visa application and other “additional information”, including that he had “committed serious crimes involving identity and document fraud in both Australia and the USA” (CB 103 to CB 104).

12. The applicant’s migration agent responded on 28 September 2012 and attached another Statutory Declaration from the applicant (CB 105 to CB 112).

13. The Minister’s delegate refused to grant the protection visa on 1 November 2012 (CB 114 to CB 140). The applicant, through his migration agent, applied for a review to the Tribunal (CB 141 to CB 146). By letter dated 23 November 2012, the Tribunal invited the applicant to attend a hearing and give his evidence, pursuant to s.425 of the Act. The hearing was scheduled for 31 January 2013 (CB 157 to CB 159).

14. On 4 January 2013 the applicant’s agent made written submissions to the Tribunal and attached a further Statutory Declaration from the applicant, and also attached earlier submissions dated 28 September 2012 (CB 160 to CB 180).

15. The applicant appeared before the Tribunal on 31 January 2013. His agent was present (CB 181). He provided a number of photographs and documents to the Tribunal (CB 184 to CB 211). Translated versions of some of the documents were subsequently provided (CB 218 to CB 225 and CB 227 to CB 229).

16. On 18 February 2013, pursuant to s.427(1)(d) of the Act, the Tribunal sought a report from the department’s Document Examination Unit, as to the “authenticity” of certain photographs submitted by the applicant to the Tribunal (CB 216 to CB 217). [The photographs were said to be of the applicant standing next to the President of Mongolia.]

17. On 18 June 2013 the Tribunal wrote to the applicant, pursuant to s.424A of the Act, inviting his comment on, or response to, certain information which it considered would be the reason, or a part of the reason, for affirming the delegate’s decision (CB 235 to CB 236).

18. The terms of that letter are as follows (at CB 235 to CB 236):

    “…The Tribunal contacted Autommatic to confirm whether David Obenland was employed as VIP Support Engineer in March 2013 and on 18 June 2013 received a response from the HR Lead stating that they had never had anyone by that name in their employment.

    This information is relevant to the review because the email response for the HR Lead that they have never had anyone by the name of David Obenland employed at Autommatic raises serious concerns about the genuineness of the email you submitted from David Obenland and your credibility generally. Subject to your comments, this may lead the Tribunal to find that you did not have a blog on WordPress and that your claims are not credible. This may in turn lead the Tribunal to find that you have not published a blog critical of the Mongolian government or any Mongolian politicians, including the President, as you claimed or therefore that you were of any interest to the Mongolian authorities because of this. If the Tribunal relies on this, this would be the reason or a part of the reason for affirming the decision…”

19. The applicant’s representative responded by letter dated 18 July 2013. Following a grant of further time by the Tribunal for that purpose (CB 250).

20. The Tribunal affirmed the delegate’s decision on 25 July 2013 (CB 256 to CB 278). The Tribunal accepted some aspects of the applicant’s factual account of claimed events in Mongolia ([34] – [35] at CB 267 and see further parts of [36] – [40] at CB 268). While the Tribunal accepted that the applicant’s father was “fired” from his position in the Mongolian police, it found that this did not impact on the applicant, or result in his being of interest to the authorities ([36] at CB 268).

21. The Tribunal found a large part of the applicant’s central claims and evidence to not be credible, or plausible, and therefore, did not accept these claims ([39] at CB 268, [41] – [49] at CB 268 to CB 270, [54] at CB 271, [56] at CB 272, [61] – [64] at CB 273 to CB 274, [69] at CB 275 and [72] at CB 276). Further, the Tribunal did not accept other claims, because of what it found to be an absence of support for them, in country information before it ([65] – [66] at CB 274 to CB 275) and on the basis of information it obtained from Autommatic Inc, that it found undermined the applicant’s claim to have “hosted” a particular “blog” ([52] – [53] at CB 270 to CB 271).

22. The Tribunal expressed concerns about the veracity of the photographs the applicant had submitted because of information it received from the Minister’s department. However, it found that the photographs were genuine, but went on to find that the photographs did not establish that the applicant had any political relationship, or was of interest, to the President of Mongolia, as he had claimed ([58] at CB 272 to CB 273).

23. The Tribunal also had concerns about the copy of the “Order to Remand” document which the applicant had submitted during the hearing. The Tribunal gave little weight to this document ([71] at CB 275 to CB 276). The Tribunal found, based on its factual findings, that the applicant did not satisfy either of the criteria at s.36(2) of the Act for the grant of the protection visa.

Application before the Court

1. The grounds of the amended application are in the following terms:

   “Grounds 1(a), 1(b): Jurisdictional Error: Denial of Procedural Fairness

   - Grounds 1(a) Refusal to provide original documents for Applicant’s comment

   The Second Respondent’s decision was affected by jurisdictional error when the Second Respondent denied the Applicant procedural fairness, namely by denying him:

   (a) any opportunity to be heard; or

   (b) any reasonable opportunity to be heard

   in relation to matters the Second Respondent:

   I. when invited the Applicant to comment on an information dated Tuesday, 18 June 2013, Second Respondent refused to provide the original document namely the response from Automattic Inc of the USA to the Second Respondent; and

   II. took into account when it made the Second Respondent’s decision.

   PARTICULARS

   1. See: Second Respondent’s Decision, Thursday, 25 July 2013: P-16, paragraph 53 (inclusive).

   2. See: Letter to Second Respondent, Thursday, 18 July 2013 P-1, paragraph 2 (inclusive).

   3. See: FOI Request Decision, Partial Release, Wednesday, 11 December 2013

   - Ground 1(b): Biased decision

   The Second Respondent’s decision was affected by jurisdictional error when the Second Respondent denied the Applicant procedural fairness, namely by denying him:

   (a) any opportunity to be heard; or

   (b) any reasonable opportunity to be heard,

   when, in all the circumstances of the case, the Second Respondent:

   I. shown an excessive attention to the Applicant’s credibility and questioned it throughout the Second Respondent’s decision-making process and when it made its decision rather than taking into account the Applicant’s protection claims which is the core of his application for protection visa class XA, and

   II. made the Second Respondent’s decision mostly purely based on the Applicant’s credibility, not the protection claims and evidence, and

   III avoided to verify the originality of all the documents and evidence provided, and

   IV. took in into account when it made the Second Respondent’s decision.

   PARTICULARS

   1. See: Second Respondent’s Decision, Thursday, 25 July 2013: All inclusive.

   Further Ground(s) and Particulars may be provided prior to final hearing.

   Grounds 2(a), 2(b), 2(c) & 2(d): Jurisdictional Error: Failure to Take Validly into Account Relevant Considerations.

   - Ground 2(a): Photographs with ex-President of Mongolia Enkhbayar Narnbar

   Second Respondent’s decision was affected by jurisdictional error when the Second Respondent failed to take validity into account a relevant consideration, namely that:

   (a) at the time of the hearing of the Tribunal proceedings; and

   (b) at the Time of the Tribunal decision,

   in relation to matters the Second Respondent:

   I. received original photograph’s from the Applicant proven to be genuine by the Document Examination Unit (DEU) upon Second Respondent’s request to this Unit; and

   II. refused to accept the Applicant’s credibility when the First Respondent’s findings prior to the hearing proven to be implausible according to DEU’s information; and

   III. refused to acknowledge the importance of these photographs, even after they have been proven to be genuine by DEU, completely ignoring claims by the Applicant, which leads to the fact that the Second Respondent

   IV. failed and/or refused to invite the Applicant to comment on the location they were taken and/or circumstances of the event under section 424 of the Migration Act 1958; and

   V. failed to take into account important documents, namely being the photographs with the ex-President of Mongolia Enkhbayar Nambar, when it made the Second Respondent’s decision.

   PARTICULARS

   1. See: Second Respondent’s decision, Thursday, 25 July 2014: P-17, paragraph 58 (inclusive).

   2. See: link See: Copies of original photographs with ex-President Enkhbayar Nambar,

   - Ground 2(b): Email from Autommatic Inc of the USA to the Applicant

   Second Respondent’s decision was affected by jurisdictional error when the Second Respondent failed to take validly into account a relevant consideration, namely that

   (a) at the time of the hearing of the Tribunal proceeding; and

   (b) at the time of the Tribunal decision,

   in relation to matters the Second Respondent:

   I. refused to takin into account a relevant information, namely an email from Automattic INC of the USA to the Applicant, based on a  response from Automattic Inc of the USA to the Second Respondent which wasn’t presented to the Applicant for comment or response; and

   II. failed to take into account a relevant information when it made the Second Respondent’s decision.

   PARTICULARS

   1. See: Second Respondent’s decision, Thursday, 25 July 2013:

   P-16, paragraph 53 (inclusive).

   2. See:

   - Email from Automattic Inc of the USA to the Applicant sent on Tuesday, 19 March 2013 at 01.33am

   - Forwarded Message to Ms Sally Szmerling, the Applicant’s legal representative, of the Applicant’s attempts to contact Automattic Inc of the USA to appropriately respond to the Second Respondent’s invitation to comment, given the fact that the Second Respondent refused to provide the Applicant with appropriate original document to comment, sent on Wednesday, 17 July 2013 at 2.36 pm.

   - Ground 2(c): Order to Remand the Applicant Under Custody

   Second Respondent’s decision was affected by jurisdictional error when the Second Respondent failed to take validly into account a relevant consideration, namely that:

   (a) at the time of the hearing of the Tribunal proceeding; and

   (b) at the time of the Tribunal decision,

   in relation to matters the Second Respondent:

   I. refused to take into account a relevant genuine document, namely the Order to Remand Suspect Under Custody issued by Criminal Police Authority of Mongolia on 22 October 2012, Order No 6/275; and

   II. refused to take into account special circumstances of the Applicant, namely fear for his and his family members’ lives and safety, and ignored Applicants protection claims and fear of persecution and torture, when the Second respondent coerced the Applicant to provide the original document; and

   III. refused to take into account Applicant’s statement of fear for his parents’ safety, if approached the Mongolian authorities for the original document on submission dated 25 February 2013; and

   IV. refused to take into account that such request might cause the Applicant and the Applicant’s family even further risk of harm and/or death; and

   V. failed to take into account a relevant Information when it made the Second’ Respondent’s decision.

   PARTICULARS

   1. See: Second Respondent’s decision, Thursday, 25 July 2013:

   P-20, paragraph 71 (inclusive).

   2. See: Order to Remand Suspect Under Custody, Monday, 22 October 2012.

   - Ground 2(d): Specific Circumstances of the Applicant’s case

   Second Respondent’s decision was affected by jurisdictional error when the Second Respondent failed to take validly into account a relevant consideration, namely that:

   (a) at the time of the hearing of the Tribunal proceeding; and

   (b) at the time of the Tribunal decision,

   in relation to matters the Second Respondent:

   I. refused to take into account a relevant consideration, namely the purpose of the Applicant’s protection claims, fear for his and his family members’ lives, fear of persecution, when the Second Respondent coerced the applicant to provide the original document stated in Ground 2(c) of this application; and

   II. failed to take into account a relevant consideration, namely the finding made by Her Honour Judge Wilmoth of the County Court of Victoria when Her Honour sentence the Applicant on 28 October 2011 about the Applicant’s fear of persecution if returned to Mongolia and

   III. failed to take into account a relevant consideration when it made the Second Respondent’s decision

   PARTICULARS

   1. See: Second Respondent’s decision, Thursday, 25 July 2013:

   P-20, paragraph 71 (inclusive).

   2. See: Reasons for Sentence, Friday, 28 October 2011:

   Paragraphs 25, 26 (inclusive).

   Further Ground(s) and Particulars may be provided prior to the final hearing.

   Ground 3: Jurisdictional Error: Unreasonableness

   - The Second Respondent’s decision was affected by jurisdictional error, namely that by reason of the matters set out in Grounds 1(a) to 2(d) (inclusive) above and the Particulars sub-joined thereto and in all the circumstances of the case, the Second Respondent’s decision was so unreasonable, that no reasonable Tribunal would have made such a decision.”

1. At the hearing before the Court the applicant appeared in person. He raised a number of additional matters at the hearing. Both he, and the Minister, were granted leave to file further written submissions in relation to these matters. The applicant’s affidavit of 17 March 2014, annexing various documents, was read into evidence (no objection by the Minister). The applicant’s affidavit of 28 October 2014, annexing a copy of an email from Automattic Inc dated 30 September 2014, was also read into evidence. The Minister objected on the basis of prejudice, given that the affidavit was presented on the day of the hearing. However, and ultimately, the Minister was content to proceed on the basis of leave being granted to file further written submissions.

Consideration of the Grounds of the Application

1. Ground1(a) of the application asserts that the applicant was denied procedural fairness because when the Tribunal invited his comment on information from Automattic Inc dated 18 June 2013(see [19] above), it subsequently refused to provide him with the “original document” from Automattic Inc.

2. Before the Court the applicant explained his ground as follows. He received an email from Mr David Obenland of Automattic Inc on 19 March 2013 (reproduced at CB 228 to CB 229). The email stated amongst other things that the applicant had “hosted a free blog” under a particular domain name (CB 228.5).

3. The applicant gave a copy of this email to the Tribunal in support of his claim that he had hosted such a blog site (CB 227). The applicant submitted that the Tribunal then contacted Automattic Inc and reported the result of their inquiry to him in the letter of 18 June 2013 (CB 235).

4. Before the Court the applicant explained that the denial of procedural fairness was that the Tribunal did not provide him with clear particulars of the information that it received from Automattic Inc, as it was obliged to do, pursuant to s.424A(1)(a) of the Act.

5. At best, I understood the complaint to be that the requirement to provide “clear particulars”, obliged the Tribunal to give him the document containing the information received from Automattic Inc.

6. The Minister’s response was that the obligation in s.424A(1) of the Act was not engaged because the material in question, that is that a “Mr Oberland” was not employed by Automattic Inc, was, in itself, “neutral in character”. The Minister sought to rely on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17] per Gleeson CJ, Gummow, Callinan, Heydon And Crennan JJ:

   “[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”

   [Emphasis added.]

   (The Minister also referred to SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106 at [104] per Perram J and generally to Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 and MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319 at [27] and [29] – [30] per Heerey J)

7. In short, I understood the Minister’s argument here to be that the Tribunal considered “neutral” information, but it was the various inconsistencies in the applicant’s account, that led to the Tribunal taking an adverse view of his credibility. That is, that the Tribunal’s reasoning process, as expressed in its decision record, is not “information” for the purposes of s.424A(1) of the Act.

8. I agree with the latter part of the Minister’s submissions, set out immediately above, that the view the Tribunal took of the applicant’s evidence is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]). However, it is not necessary to consider this further, because the alternate argument put by the Minister against ground 1(a) must be accepted.

9. That is, that the Tribunal’s letter of 18 June 2013, sent pursuant to s.424A(1) of the Act, did provide to the applicant “clear particulars” of the information that the Tribunal said would be the reason, or a part of the reason, for affirming the decision.

10. In essence the Tribunal’s letter referred the applicant to his own evidence (which of itself came within the exception to the obligation in s.424A(1), set out at s.424A(3)(b) of the Act), which was that he had received an email from “David Obenland”, and that the email said that he had published a “free blog”. It then told the applicant that it had information from Automattic Inc that they had never had anyone of that name in their employ.

11. In my view, the Tribunal did provide “clear particulars” of this information. The Tribunal’s letter also made clear why this information was relevant to the review. Namely, that this raised concerns about the genuineness of the email he had submitted, which in turn may lead to a finding that his claims were not credible. The Tribunal also complied, therefore, with s.424A(1)(b) of the Act. It is difficult to see how a copy of the actual response received from Automattic Inc (the “document” that the applicant complains he should have been given) could have made the situation any clearer.

12. Before the Court the applicant tendered a copy of an email (AEI), dated 30 September 2014, said to be from the “HR Lead/Happiness Engineer” of Automattic Inc. It is in the following terms (see exhibit AEI of 30 September 2014):

    “…Mr [Applicant]

    As I’ve discussed with your fiancée, WordPress can only provide you with limited and general information to your questions, given the fact that we couldn’t be completely satisfied of your proof of identity, to protect the privacy of the parties involved.

    Nonetheless, here are the answers to some of your questions.

    1. Do WordPress employees use aliases or nicknames when responding to an email, and why, if yes?

    It’s possible that our employees use aliases, nicknames, middle or maiden names when responding to certain requests, especially if it involves an information on blogs of criminal, political or religious natures. The privacy and safety of our employees are as equally important to us as of yours as a client.

    2. I am currently in immigration detention in Australia, and my claims for political asylum were refused in several steps of the process, and my case is at the Australian Federal Court stage. Australian Refugee Review Tribunal claims that they’ve contacted WordPress about my statement of correspondence with David Obenland, your VIP Support Engineer. But the Tribunal refused to disclose those material to me in full because of Australian Privacy Act. Can you please provide an information of their correspondence with you, if such exist? To make it easy, the correspondence between you and the Tribunal may have happened between 20 March 2013 and 18 June 2013.

    I confirm that there was a correspondence between us and the Australian Refugee Review Tribunal in that timeframe in relation to your blog ALL4MONGOLIA.WORDPRESS.COM and the length of our cooperation with you. According to our privacy policies we refused to reveal any of your details to an Australian Tribunal Officer without your consent.

    That is the only information I can provide you with at this stage. I hope it reaches you before your court appointment, and will be of any help.

    Sincerely,

    Lori

    HR Lead/Happiness Engineer.”

13. This document does not assist the applicant in proceedings before the Court now. First, this email, and the information in it, was not before the Tribunal. The email, and, it would appear, the questions posed by the applicant’s “fiancé” to Automattic Inc, was created after the date of the Tribunal’s decision. In this circumstance, it was not available for the Tribunal to consider it. In this light, the tender of the letter is made to support the applicant’s pursuit of impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).

14. Second, as set out above, the Tribunal made its own inquiry to obtain information from Automattic Inc. The result of that inquiry was communicated to the applicant in its letter of 18 June 2013. The applicant was invited to comment. The Tribunal found adversely to the applicant as set out above.

15. I understood the applicant’s tender of the email now to seek to challenge the Tribunal’s finding. The applicant submitted that it was open to conclude, given what is stated in answer to question 1 in the email, that the name “David Oberland” was a pseudonym, and that he did receive the original email from “him”, as he had submitted to the Tribunal.

16. There are a number of answers to this. One, as set out above, this document was not given to the Tribunal. It cannot be said to have failed to take into account a relevant consideration.

17. Two, to the extent that the applicant urged this “explanation” on the Court now, he seeks impermissible merits review (Wu Shan Liang).  Three, and in any event, what is stated in the email, in this regard, does not support the applicant’s argument that there is an explanation on which to base his argument that “David Oberland” exists, and that he sent the first email to the applicant. There is insufficient in the email to link what is said to the applicant’s proposition. In any event, this was a submission to put to the Tribunal, not the Court.

18. Third, ground 1(a), as pleaded, asserts a denial of procedural fairness. As set out above, the particulars explain this as a failure to give him the copy of the response from Automattic Inc, to the Tribunal’s inquiry to it. In submissions, the breach was said to arise from s.424A(1) of the Act.

19. To the extent that the applicant sought to rely on the “second” email (AEI) to argue any failure of procedural fairness, there is nothing before the Court to indicate that the applicant sought further time from the Tribunal to make any such further inquiry. The information the Tribunal obtained, in relation to the applicant’s “first” email, was put to the applicant for comment (CB 235 to CB 236).

20. Before the Tribunal the applicant’s representative sought further time to respond. The Tribunal agreed to give the applicant further time (CB 237 to CB 247). The applicant, through his representation, ultimately responded to the Tribunal’s invitation (CB 250 to CB 251). No further request was made of the Tribunal in this regard. No legal error is revealed here.

21. Fourth, before the Court, the applicant raised the question of a breach of “privacy” by the Tribunal. This was the subject of further written submissions by the applicant (leave was granted by the Court).

22. The applicant’s complaint is as follows. In making its inquiry of Automattic Inc, the Tribunal breached the applicant’s “privacy” by seeking information in relation to his blog.

23. There is nothing in the evidence contained in the Court Book to support the applicant’s assertion that the Tribunal made an inquiry about his blog. The only evidence in the Court Book of what the Tribunal asked and obtained from Automattic Inc was (at CB 235.6):

    “…The Tribunal contacted Autommatic to confirm whether David Obenland was employed as VIP Support Engineer in March 2013 and on 18 June 2013 received a response from the HR Lead stating that they had never had anyone by that name in their employment.”

    That says nothing about the applicant or his blog.

24. However, in the “second” email tendered to the Court, the following appears (exhibit AEI of 30 September 2014):

    “…I confirm that there was a correspondence between us and the Australian Refugee Review Tribunal in that timeframe in relation to your blog ALL4MONGOLIA.WORDPRESS.COM and the length of our cooperation with you. According to our privacy policies we refused to reveal any of your details to an Australian Tribunal Officer without your consent…”

25. There are a number of elements for consideration arising here, in relation to the assertion of a breach of privacy. One, the applicant submits that the Tribunal disclosed “personal information” to Automattic Inc, which meant he was “reasonably identifiable” by a third party (with reference to s.6 of the Privacy Act 1988 (Cth) (“Privacy Act”), and that the Tribunal was in breach of s.15 of the Privacy Act because it did so without the applicant’s consent.

26. Section 6 of the Privacy Act defines “personal information” for the purposes of that Act. Section 15 requires an “agency or an organisation” (as defined – see s.6 of the Privacy Act) to comply with the Australia Privacy Principles (“APP”)(as set out in Schedule 1 of the Privacy Act as at the relevant time). The applicant’s submission seeks to invoke APP 6, which he says concerns the seeking of information from a third party without his consent.

27. It must be noted that APP 6 (and s.15 of the Privacy Act) is not concerned with the “seeking” of information, as the applicant submits, but with the disclosure of information, in certain circumstances. To the extent that the applicant complains that the Privacy Act was breached by the Tribunal because it sought information, such a complaint does not assist him in the context of the Privacy Act.

28. In any event, in relation to the complaint that in seeking the information, the Tribunal disclosed “identifying information of the Applicant” ([7] of the applicant’s further outline of submissions), the Minister submits that the evidence does not reveal that the Tribunal breached the applicant’s privacy because the Tribunal did not disclose any of the applicant’s “personal information”.

29. The applicant’s submissions do not satisfactorily explain what “personal information” (within the meaning of that term given by the Privacy Act) was disclosed by the Tribunal, to Automattic Inc. On the applicant’s evidence (exhibit AEI of 30 September 2014), the Tribunal sought information about what the applicant claimed was his blog. The email of 30 September 2013 (exhibit AEI of 30 September 2014) states that the Tribunal sought information about the applicant’s blog.

30. It must be noted that Automattic Inc was a “platform” facility to enable the operation and dissemination of information, of, and through, a person’s blog. The applicant gave evidence to the Tribunal that he had such a blog, and that Automatic Inc was, in effect, the provider of the platform for his blog. The Tribunal did no more than seek to verify that claim. There is no evidence that in doing so it released “personal information”.

31. The applicant’s submissions on privacy have also failed to provide any link to the grounds of the amended application, including ground 1(a). That ground, as set out above, asserts a breach of procedural fairness on the part of the Tribunal. The submissions do not explain how any breach of the Privacy Act (even if it could be made out ) reveal a breach of procedural fairness by the Tribunal, or indeed other jurisdictional error on its part. As the Minister submits, compliance with the provisions of the Privacy Act is not a prerequisite to the making of a valid decision (SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 at [32] per Buchanan J, Goldie v Commonwealth of Australia (2000) 180 ALR 609 at [85] – [87] per French J and Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274 at [67] per Beaumont J).

32. It must be remembered that the issue for consideration before the Court as it arises from the amended application, is whether the Tribunal’s decision is affected by jurisdictional error. The applicant contends, through his grounds, that it does. None of the grounds assert jurisdictional error based on the alleged breach of the Privacy Act. Nor has the applicant sought to further amend his grounds. Even if he had done so, for the reasons set out immediately above, any such proposed ground would not lead to a revelation of jurisdictional error.

33. Nor, separately, if it was the applicant’s intention to seek such a declaration from the Court as to any breach of the Privacy Act, does he make any such request in the relief sought in the application, as amended (Goldie at [85] – [86]). Noting, of course, that even if he were successful in obtaining any such declaration it would not, on that basis, lead to the granting of the orders he does seek.

34. The applicant’s ground 1(a) pleads a breach of procedural fairness. The submissions directed attention to s.424A of the Act. There was no express assertion in the ground, or in the submissions, separately to the allegation of a breach of statutory procedural fairness, that the Tribunal’s refusal to give the applicant the actual copy of the communication with Automattic Inc, was revelatory of any other legal error on the part of the Tribunal. The ground as pleaded, and as ultimately, and relevantly, explained in submissions, was to assert that the Tribunal was obliged to give him “any document”, and its failure to do so constituted a breach of s.424A(1) of the Act (certainly s.424A(1)(a) of the Act and possibly s.424A(1)(b) of the Act).

35. For the reasons set out above ground 1(a) is not made out. The applicant gave certain evidence to the Tribunal (the first email from Automattic Inc), in support of his claim that he had published a blog as part of the continuation of his political activities when he went to the USA.

36. At the hearing, the Tribunal put to the applicant, that, amongst a number of other matters in relation to the concern about the credibility of his claims, that it was unable to locate any evidence of his blog. It also noted that he was unable to provide any of the documents that he said he had received and published on his blog ([53] at CB 271).

37. In this context, the Tribunal sought to confirm the provenance of the one piece of evidence that the applicant provided in support of the claim to have a blog (the “first” Automattic Inc email).

38. The Tribunal’s power to obtain information cannot be in dispute (Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 at [15] and [16], Minister for Immigration and Citizenship v SZKTI & Anor [2009] HCA 30 at [27] – [28], [33] and [45] per French CJ, Heydon, Crennan, Kiefel And Bell JJ) (ss.424 and 427(1)(d) of the Act).

39. The Tribunal obtained this information and put it to the applicant, pursuant to s.424A of the Act. Whether it was obliged to do so is not at issue in these proceedings. It did do so, and there is no error in its having done so, even in circumstances where s.424A(1) was not engaged (SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]).

1. In the current case, and for the reasons set out above, the Tribunal complied with the requirements of s.424A(1) of the Act. in relation to giving the applicant “clear particulars” of the information which it considered would be the reason, or a part of the reason, for affirming the delegate’s decision. That is, the information that Automattic Inc had no record of a “David Oberland” being employed by them. The Tribunal took into consideration the applicant’s response, but was not persuaded by this.

2. The Tribunal also noted the applicant’s representative’s request that the applicant be given a copy of the correspondence between the Tribunal and Automattic Inc. The Tribunal formed the view that the applicant had been provided with “clear particulars” of the information. That is, that it had fulfilled the relevant obligation in s.424A(1) of the Act.

3. On the evidence before the Court this finding was reasonably open to the Tribunal. In any event, and further, on any objective basis, the information which the Tribunal considered would be a part of the reason for affirming the delegate’s decision, was that Automattic Inc had no record of the purported author of the email submitted by the applicant. The Tribunal’s letter was clear as to the particularity of the information on which it considered it would rely. In all, ground 1(a) is not made out. Ground (1) (b) (bias) is addressed below at [109]-[115], given its reliance on matters raised in the other grounds.

4. Ground 2 asserts that the Tribunal failed to take into account relevant considerations. The particulars 2(a), 2(b), 2(c) and 2(d) list, in essence, such alleged considerations.

5. A failure to take into account a relevant consideration by the Tribunal may well lead to some revelation of jurisdictional error. However, in the current case the evidence before the Court reveals that the Tribunal did not fail to take into account any relevant consideration, as particularised. Rather, that the Tribunal did not accept that the matters, referred to now in the particulars, were such as to assist the applicant to satisfy the criteria for the grant of the visa. As such, the ground seeks to challenge factual findings made by the Tribunal and fails to establish jurisdictional error, as it really seeks impermissible merits review.

6. The first particular (ground 2(a)) relates to a number of photographs that the applicant gave to the Tribunal. The applicant directed attention to [58] of the Tribunal’s decision (at CB 272 to CB 273):

   “[58] The Tribunal has taken into consideration the photograph the applicant submitted of him and the President of Mongolia together. The Tribunal notes that up until the hearing the applicant had only submitted a photocopy of this photograph and based on this copy the Tribunal expressed some concern about the veracity of this picture. The applicant presented the original photograph to the Tribunal in the hearing and the Tribunal had this verified by the Document Examination Unit (DEU) of the Department. The Tribunal notes the advice from DEU that with digital photographs it is often difficult to tell whether the photograph is genuine, as in this case. While there was no evidence the photograph had been altered, there was some concern the persons in the photograph seemed a little "disproportionate" however it was noted that this could be the result of being closer to the camera and as such it was advisable to err on the side it is genuine. While the Tribunal accepts on the basis of the information from DEU that the photograph is genuine, the Tribunal notes that there is nothing in the photograph to indicate when or where it was taken or the circumstances in which this photo opportunity arose. Based on the Tribunal's findings above, the Tribunal does not accept that this photograph occurred as a result of the applicant being invited onto the grounds of the White House following his protesting out the front. Nor does the Tribunal accept that this photograph establishes that the applicant had any political relationship with or was of any ongoing interest to, the President of Mongolia. The Tribunal finds that the photograph is evidence that the applicant has met the President as a result of a single and opportunistic moment and not of any further connection or relationship with the President.”

   [Note: there were two photographs but of the same subjects: That is of the applicant and the President of Mongolia.]

7. The applicant’s argument is that the “documents” (the photographs) were “proven to be genuine” by the department’s Document Examination Unit, yet the Tribunal “ignored” his claims.

8. A plain reading of [58] (at CB 272 to CB 273) reveals that the Tribunal accepted, albeit with some concerns, the advice that the photograph of the applicant with the President of Mongolia was genuine. However, the Tribunal reasoned that there was nothing in the photograph to indicate the circumstances in which it was taken. Having regard to its other findings, about the applicant’s credibility, it was not persuaded that the photograph established anything more than, that the applicant had had his photograph taken with the president of Mongolia, and that the applicant had met the President, on that one occasion. It was not persuaded, in all the circumstances, that the photograph provided evidence of any further relationship between the applicant and the President of Mongolia. The Tribunal’s findings were all reasonably open to it on what was before it. As set out above, the particular seeks impermissible merits review.

9. Ground 2(b) relates to the (“first”) email from Automattic Inc purportedly relating to the applicant’s blog (see the consideration in relation to ground one above). The particular here directs attention to [53] of the Tribunal’s decision (at CB 271):

   “[53] The Tribunal also notes, as it put to the applicant in the hearing, that it was unable to locate any evidence of this blog that he claimed he had. Nor did the applicant have any of the alleged documents he received and posted on this blog. The Tribunal notes the  email from David Obenland, VIP Support Engineer with Automattic dated 19 March 2013 which the Tribunal received on 20 March 2013 which purportedly verifies the applicant hosted a free blog between 23 April 2007 and 5 April 2008 and that this blog was terminated due to a written complaint received from the third secretary of the Embassy of Mongolia dated 16 December 2007 because he was posting misleading information about Mongolia and its government. Following inquires made by the Tribunal with Automattic to verify David Obenland's employment, the Tribunal received advice from the HR Lead at Automattic that they had never had anyone by that name in their employment. The Tribunal put this information to the applicant under s424A and on 18 July 2013 the applicant respond stating that he could not comment on why Automattic would state David Obenland is not an employee and that as far as he is concerned he received an email from this individual and took it to be a genuine email from a genuine employee of the company. The Tribunal has taken into consideration the applicant's response however given the Tribunal's concerns regarding the applicant's credibility, as discussed throughout this decision, the Tribunal places considerable weight on the response provided by Automattic and finds the email from David Obenland is not credible. The Tribunal notes the applicant's adviser's reference in the response received on 18 July 2013 to their request for a copy of the correspondence between the Tribunal and Automattic and their concern that the applicant has not been given a full opportunity to comment upon the relevant information because their request was denied. The Tribunal is satisfied that the applicant was provided with clear particulars of the information and a full explanation as to how it is relevant to his case as required by the law. In light of the above, the Tribunal does not accept that the applicant had a blog as he claimed.”

10. It is not necessary to repeat in detail what has been said about this email above. What relevantly emerges from the material before the Court is that the Tribunal did not accept that the applicant had a blog site on which he posted political commentary, as he claimed.

11. The email was one piece of evidence that the applicant had provided in corroboration of that claim. As set out above, the Tribunal sought further information about that email, in particular about the purported author. It put the results of that inquiry to the applicant, considered his response and found, in all the circumstances, that it placed greater weight on the response from Automattic Inc, and found the email was “not credible”.

12. This finding, and those that informed it, were all reasonably open to the Tribunal to make. In these circumstances, again, the applicant seeks impermissible merits review.

13. Ground 2 (c) relates to another piece of corroborative evidence provided by the applicant, to the Tribunal, in support of his claim that he had come to the adverse interest of the Mongolian authorities. The applicant had provided, at the hearing before the Tribunal, a copy of a document headed “Order to Remand Suspect Under Custody” (CB 197).

14. The applicant’s particular directs attention to [71] of the Tribunal’s decision record (at CB 275 to CB 276):

    “[71] As the Tribunal does not accept the applicant's father  was questioned by the police about the applicant, it follows the Tribunal does not accept the applicant's father was told that charges would be laid against the applicant in relation to the protest in 2008. The Tribunal has taken into consideration the order to remand suspect under custody document which the applicant presented to the Tribunal during the hearing, however has placed little weight on this document for the following reasons. As the Tribunal put to the applicant in the hearing, it has some concerns about this document and for this reason it requested the applicant provide the original document. The Tribunal notes the applicant's response in the submission dated 25 February 2013 that he does not wish to ask his parents to send the warrant as he fears this will place their own safety at risk.”

15. This should be read with [72] of the Tribunal’s decision record (at CB 276):

    “[72] The Tribunal also finds it implausible that the applicant would only be under investigation since 2009 and it would then take a further year or so to finally issue the order against him. The Tribunal does not accept the applicant's explanation in the hearing that he only experienced problems after he lost his passport and they probably found out he got his passport illegally, that is through paying a bribe to someone in the passport office. The Tribunal does not accept that this addresses the Tribunal's concern. The Tribunal has also taken into consideration the country information it put to the applicant in the hearing from Freedom House Report, Freedom of the World 2010 - Mongolia which discussed the general amnesty law which was passed in July 2009 covering most civilians still in detention as result of the unrest in 2008.  As the Tribunal put to the applicant in the hearing, in light of this information the Tribunal has difficulty accepting he would be pursued and charged in relation to this protest years later. The Tribunal notes the applicant's reference in the hearing to the relatively recent sentencing a few months ago of the police officers accused of shooting and killing the civilians during the protest on 1 July 2008, four years after the incident. However, the Tribunal does not accept that the applicant's situation is comparable to these police officers. Nor does the Tribunal accept that the Mongolian authorities hands were tied for two years while the applicant was in prison. For the reasons provided above, the Tribunal does not accept that there were charges against the applicant relating to the 2008 riots or that there is a warrant out for his arrest.”

16. The Tribunal did not fail to consider the document. It plainly considered the document, but decided to place “little weight” on it. It gave reasons for doing so. Its reasons were responsive to, and probative of, what had been put before it. The applicant’s complaint now can only be understood as being that the Tribunal should have given more weight to the document. This again seeks impermissible merits review.

17. The particulars of ground 2(c) at II, also allege that the Tribunal failed to take into account relevant considerations, being the applicant’s “special circumstances” as set out in his protection visa claims, and his claimed fear of harm for himself, and his family.

18. As the Minister submits, the applicant’s circumstances, and his claimed fears, were considered by the Tribunal (see in particular [21] – [23] (at CB 259 to CB 265, [25] – [26] at CB 265 to CB 266 and [33] – [77] at CB 267 to CB 277). What can be seen, therefore, as the thrust of the applicant’s ground, is the complaint that the Tribunal was not satisfied, in light of his claims, that he met the criteria for the grant of the visa. Again, he seeks impermissible merits review, in circumstances where the Tribunal’s findings were comprehensive in the consideration of his claims, and reasonably open to it.

19. The particulars at ground 2(c) II-IV also complain that the Tribunal sought to “coerce” him into approaching the Mongolian authorities to obtain the original of the document he had submitted. The allegation is that such a request might cause him, and his family, further harm.

20. Before the Court, the applicant explained that the essence of the complaint here is that the Tribunal should have accepted his explanation that to ask his father to obtain the original of the document would have involved his father approaching the police department, and this would have put his father in danger.

21. The complaint, as pleaded in the amended application, is not made out. The Tribunal did consider the applicant’s relevant explanation, in relation to the procurement of the original document, and more broadly, his claims to fear harm.

22. The matter of the original of this document was only one element of many in the Tribunal’s consideration of the applicant’s claim to fear harm because he had come to the adverse interest of the Mongolian authorities. That interest, relevant to the remand document, arose from the applicant’s claim to have been involved in a protest in 2008, prior to an election in that year (see [65] –[69] at CB 274 to CB 275).The copy of the remand document was one piece of evidence put to the Tribunal, by the applicant, in support of that broader claim.

23. The Tribunal considered the claim relating to the 2008 protest in the context of, his other claims to fear harm for reason of his claimed political activities. Including, for example, the claim that he participated in secret meetings with other political leaders.

24. The consideration of the remand document, which appears at [71] (at CB 271 to CB 276 and see [79] above), must be read in the context of that broader consideration, and specifically with reference to [69] to [74] of the Tribunal’s decision record (at CB 275 to CB 277).

25. The applicant had claimed that his father, and his family, had been under surveillance since his father had been “fired” from his employment. The Tribunal gave reasons for finding that this claim was implausible ([69] at CB 275). The Tribunal subsequently did not accept that his father was questioned by police in 2012 about the applicant, and rejected claims that their phone had been “tapped” ([70] at CB 275).

26. What followed in this line of reasoning was that the Tribunal did not accept that the applicant’s father was told by the police that charges would be laid against the applicant in relation to the 2008 protest. In this consideration, the Tribunal placed less weight on the copy of the remand document because it had asked the applicant to provide the original ([71] at CB 275 to CB 276).

27. The Tribunal noted the applicant’s response as to the claimed difficulty in obtaining the original ([71] at CB 275 to CB 276). However, for a variety of reasons, not dependent on whether the document before it was a copy or the original, it did not accept that there were charges laid against the applicant, as a result of the claimed participation in the 2008 protest, or that there was a warrant for his arrest. These reasons are set out at [72] (at CB 276).

28. I agree with the Minister that it is not clear what claim of jurisdictional error is invoked in the applicant’s complaint. The Tribunal noted his explanation. However, the Tribunal was not persuaded on all the evidence before it that the claim to which the applicant referred to was made out. The applicant’s complaint therefore, again, seeks to challenge the Tribunal’s findings. It seeks impermissible merits review.

29. Ground 2(d) I repeats the claim discussed immediately above. It fails to reveal jurisdictional error for the reasons set out above.

30. Ground 2(d) II-III complain that the Tribunal failed to take into account a relevant consideration, being “the finding” made by Judge Wilmoth in the County Court of Victoria at the time of sentencing the applicant, in relation to charges against him, heard in that Court in 2011. The applicant describes that “finding” as being about his fear of persecution if returned to Mongolia.

31. Again, it is not the case that the Tribunal failed to consider this matter. Based on findings explained comprehensively in its decision record, the Tribunal rejected the applicant’s claims that he would be arrested, or that there was a real chance of being harassed if he returned. The Tribunal gave reasons for this. In relation to the County Court “finding”, the Tribunal found that “any matters raised or connected with his criminal matter” would not give rise to a real chance of serious harm” ([74] at CB 276 to CB 277 and see [75] –[77] at CB 277 for the complementary protection criterion). The ground as pleaded, and the complaint, as explained by the applicant, does not reveal jurisdictional error on the part of the Tribunal.

32. Again, the reasons for the sentencing of the applicant by the County Court, were provided by the applicant as part of his application for the protection visa. At [25] the Court stated (at CB 89):

    “[25] In that year the political situation in Mongolia was volatile with an election being held. You assisted your father who was standing for election as a candidate for the Democratic Party contesting the incumbent Communist Party member. This resulted in threats of persecution and you fled the country, arriving in Sydney in 2008 seeking a better life for yourself and eventually your daughters.”

33. Before the Court the applicant’s complaint was that the Tribunal failed to take into account a “finding” made by the County Court. It is, with respect, not clear whether what was relevantly said by the County Court was a “finding” made by the Court after relevant consideration, that the applicant would face “persecution” if he returned to Mongolia, or, that the Court proceeded on the basis of the factual assertions, as claimed by the applicant.

34. I understood the applicant’s complaint before this Court to be that the Tribunal was in error in not taking this into account, and finding adversely to his credibility.

35. The Tribunal’s task, relevantly, as dictated by the Act, was to conduct the review of the delegate’s decision and to, in effect, determine whether the complaint met either of the criteria at s.36(2) of the Act for the grant of a protection visa. The Tribunal embarked on this task and made findings reasonably open to it, to support its conclusion that the applicant did not satisfy either of the criteria.

36. Even if what was said in the County Court could be characterised as a “finding” it is not, with respect, binding on the Tribunal in the statutory task given to it by the Act. To the extent that the applicant’s complaint extends to seek to make this assertion, this must be rejected as revealing any jurisdictional error in the Tribunal’s decision. The Tribunal dealt with what was said by the County Court in a manner appropriate to the exercise of its jurisdiction. That is, it directed its consideration to the question of whether the criminal matter gave rise to any basis to fear harm in Mongolia. Its finding that it did not, was reasonably open to it. The ground seeks impermissible merits review.

1. Ground 3 asserts that the Tribunal’s decision was unreasonable, and therefore this revealed legal error. To make good this proposition the applicant relies on the matters raised in relation to the other grounds of the amended application.

2. The applicant’s written submissions seek to explain the ground and appear to narrow the factual basis on which unreasonableness was said to arise. That is, that it was unreasonable for the Tribunal to base its decision on, one, the “refusal to provide original documents that would potentially harm the applicant and his family” (with reference therefore to the original of the remand document). Two, that the Tribunal made its own investigation into the genuineness of his documents (with reference to the email from Automattic Inc). Three, by not inviting the applicant’s comments on the matter of the giving of his documents. Four, that the “whole decision” was based on the “alleged correspondence with Automattic Inc” that questioned the applicant’s credibility.

3. The assertions at items one and four above, that the Tribunal’s consideration of the applicant’s claim was limited to the two matters identified above, is not available to the applicant. Any plain reading of the Tribunal’s decision reveals that the subjects of both of these items were a small part of the many matters in the consideration of the applicant’s claims to protection.

4. Similarly with item three. The evidence before the Court is that the Tribunal did relevantly invite the applicant’s comment on its concerns. The fact that the Tribunal did not accept his explanations, or find them persuasive, does not reveal any failure to provide the opportunity to comment. In relation to item two, the Tribunal made an evaluation of the evidence before it. That is its task. None of these matters form any proper basis to argue unreasonableness. The applicant’s disagreement with the Tribunal’s adverse view of much of his evidence and claims does not make its decision unreasonable.

5. As explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 per Crennan And Bell JJ at [130]-[131], and Heydon J at [78], an “unreasonable decision” is one where no logical basis can be discerned. A decision is not unreasonable in circumstances where minds may differ as to the outcome. In the current case, the Tribunal’s decision was reasonable. It accepted some of the applicant’s factual claims but gave cogent reasons as to why those matters did not rise to serious, and subsequently, significant harm ([34] – [35] at CB 267).

6. The Tribunal’s adverse view of the applicant’s credibility was based on inconsistences, implausibilities, and deficiencies in his evidence (see [39] at CB 268, [41] –[44] at CB 268 to CB 269, [47] at CB 270, [49] at CB 270, [52] – [54] at CB 270 to CB 271, [61] – [69] at CB 273 to CB 275), and concerns about how the applicant’s claims to protection were developed and emerged before the Tribunal (see for example [49] at CB 270, [55] at CB 271 to CB 272, [62] at CB 273 to CB 274, [69] at CB 275).

7. In circumstances where the Tribunal’s findings were reasonably open to it, where the Tribunal gave reasons probative of the evidence and where minds may differ as to the outcome, unreasonableness is not made out. Nor, for that matter did the Tribunal’s reasoning and decision lack an “evident and intelligible justification” for findings of fact (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]).

8. Ground 1(b) asserts bias on the part of the Tribunal. The particulars state that bias is shown through the Tribunal’s “excessive attention” to the matter of the applicant’s credibility, and the alleged failure to base the decision on the applicant’s claims, and evidence. Further, that the Tribunal did not give the applicant the opportunity to be heard.

9. Before the Court the applicant explained that the Tribunal did not take into account, or give him a reasonable opportunity to make a comment, in relation to the email (as discussed above) and the photograph of him with the President of Mongolia.

10. The tests for bias and the apprehension of  bias  are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex-parte H”)). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). This is because an allegation of bias, in contrast to other assertions of legal error, is extremely serious to make because it is directed to the very integrity of the relevant decision maker.

11. The relevant test for apprehension of bias in cases such as this is as follows (Ex parte H at [27] – [28] per Gleeson CJ, Gaudron and Gummow JJ):

    “[27] 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. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private.

    [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an  apprehension of bias . Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

12. As set out generally in this judgment, the applicant has used the issue of the photograph, and the email from Automattic Inc, and how the Tribunal dealt with each of those, and the issue of the Tribunal’s adverse credibility finding, as the basis for asserting legal error. The allegation of bias is, in the circumstances, and on the evidence before the Court, another attempt in this vein.

13. Bias, or the apprehension of bias, is not made out simply on the basis that the applicant disagrees with the Tribunal’s findings. In this case the Tribunal’s finding that the applicant was not credible was explained by, and derived from, the material before it. This finding was a finding of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

14. As the Minister submits, an allegation of bias must be clearly made and distinctly proven (Jia Legeng at [69]). The applicant has not demonstrated bias in the current case by simply making the allegation. As to the apprehension of bias, I cannot set that the fair minded lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the review (Ex parte H at [27] – [28]). Ground 1(b) is not made out.

15. During the hearing before the Court, the applicant claimed that he had been denied procedural fairness by the Tribunal because inconsistences in his claims were not put to him for comment. I gave the applicant the opportunity to make further written submissions on this matter to enable any particularity to emerge. However, those submissions, again, refer to matters of the applicant’s “credibility issues”, the Tribunal’s dealing with the email from Automattic Inc, and the alleged breach of the Privacy Act.

16. To the extent that this matter arose in the context of the complaint in Ground 1(a), then what is relevantly said above, stands in answer. The Tribunal’s evaluation of the applicant’s evidence, its adverse view of his credibility, as expressed in its decision record, is not “information” for the purposes of s.424A(1) of the Act.

17. For the remainder, the applicant’s further written submissions appear to assert error on the basis that there was a failure by the Tribunal to put its credibility concerns to the applicant in writing. At best, the applicant appears to rely on the common law for this complaint. It is the case that at common law, an applicant has the right to know the case against them, and to be given the opportunity to comment.

18. However, this does not necessarily require any written notice. In the current case, the applicant, despite opportunity, has not brought any evidence to challenge the Tribunal’s account of what occurred at the hearing. That account reveals that the Tribunal put its relevant concerns to the applicant, and he was given the opportunity to comment.

19. The applicant’s submissions also specifically complain that the Tribunal should have written to him before seeking comment from Automattic Inc, in relation to the email. To the extent that he seeks to invoke the Privacy Act, that is dealt with above. The references in the submissions to s.336F(3), s.366F(4) and s.336E(2) of the [Migration] Act do not assist the applicant in the current matter, as he has not explained how these sections apply to the current circumstances. The definition of “identifying information”, which is the subject of these sections, is defined at s.336A of the Act. In essence, “identifying information” is information obtained by the Minister’s department for the purposes set out at s.5A(3) of the Act, and which is information that is a “personal identifier”, as explained in s.5A(1). That is, for example, fingerprints, a photograph of a person, and the like.

20. In the current case, the applicant gave a copy of an email, said to be from Automattic Inc, to the Tribunal, in support of some of his claims (CB 227 to CB 229). The Tribunal sought to verify the authenticity of this email. In light of the delegate’s adverse findings, as to the applicant’s credibility (see in particular CB 130 to CB 135), the applicant cannot now argue that the question of the credibility of his factual account, and corroborative evidence, was not a live issue at the time of making his application for review.

21. The Tribunal obviously addressed further factual assertions which were not before the delegate. For example, the issue of the email from Automattic Inc. However, in terms of procedural fairness at common law, the applicant would have been on notice that the credibility of this factual account was at issue.

22. The applicant’s submissions also refer to the High Court’s judgment in  SZBEL  v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”). Whether the email from Automattic Inc is an “issue” in the sense discussed in SZBEL, or a part of the substratum of issues (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J, SZIMM v Minister for Immigration & Anor [2008] FMCA 34 at [41] – [72] per Judge Barnes, SZQSP v Minister for Immigration & Anor [2012] FMCA 890 and SZRRX v Minister for Immigration & Anor [2013] FMCA 84) does not matter. The matter of the email, on the evidence before the Court was put to the applicant for comment at the hearing. This, also, and obviously, relates to the matter of a fair hearing pursuant to s.425 of the Act. At common law, the applicant was on notice, given the Tribunal’s letter of 18 June 2013, that the Tribunal had concerns about the email, and the applicant was given the opportunity to respond. The applicant’s complaint, as explained in his written submissions, does not reveal jurisdictional error.

Conclusion

1. In all no jurisdictional error is revealed by the amended application or the applicant’s submissions. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 February 2015