SZDWI v Minister for Immigration - [2005] FMCA 837

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWI v MINISTER FOR IMMIGRATION

[2005] FMCA 837

MIGRATION – RRT decision – Nepalese former Maoist – claims disbelieved by Tribunal – procedural unfairness and bias by Tribunal not established.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.36(2), 422B, 424A(1), 425, 425(2)(a), 483A, Pt 7, Pt 8

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158

Applicant:

SZDWI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1881 of 2004

Judgment of:

Smith FM

Hearing date:

8 June 2005

Delivered at:

Sydney

Delivered on:

13 July 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1881 of 2004

SZDWI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 May 2004 and handed down on 27 May 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error.
I do not have power myself to decide whether the applicant should be believed in relation to his refugee claims, nor whether he qualifies for a refugee visa.
In the present case, the applicant arrived in Australia in September 2003 on an entertainment visa in company with a group of other Nepalese people who had obtained their visas on the basis that they were members of a theatre group performing at the Melbourne Fringe Festival. On 16 October 2003, he applied for a protection visa without any apparent involvement of a migration agent.
In his application he said: “I will submit supportive documents as far as possible I receive from Nepal”. Section C of the application form invited him to set out all his reasons for claiming to be a refugee, and suggested that a separate sheet could be attached if there was not enough room for the details. The form advised: “You should, wherever possible, provide dates, locations etc in respect of any events/occurrences to which you refer. You should provide any evidence that you have which supports your claims”. Notwithstanding this advice, the applicant’s claims were expressed very briefly and without any detail or supporting evidence. He said:
Reasons for claiming a refugee status – political.
I believed in Communist philosophy in the past which Communist party now is known as “Nepal Communist Party” “Maoist”. Because of their violent activities and I stopped to be involved and support them. And now I don’t believe this party’s activity. So I have been a main target to them. Due to my past political opinion the current govt. security official are targetting me to be killed.
I will submit details statements and documents as far as possible.
No further material was presented before the delegate made a decision which refused the visa on 3 November 2003. The delegate’s reasons, which were sent to the applicant, included a survey of country information concerning the Maoist insurgency in Nepal, and concluded:
The fact that the applicant did not experience any adverse treatment from the authorities even when he presented himself to the border authorities suggests that he is not known as an insurgent nor a supporter of the Maoists. It is more likely that he is considered as an ordinary citizen who has not come under any suspicion. Therefore the chance of the applicant being persecuted by the government forces should he return to Nepal in the foreseeable future is remote.
The applicant lodged an application for review by the Tribunal on 25 November 2003, again, without any apparent assistance. In the section inviting him to: “Please tell us why you consider yourself to be a refugee”, he inserted some general statements about the Maoist insurgency, but no more details about his own experiences. He said: “For details, I will submit my full statement, documents and evidence as soon as possible”.
The form itself advised him: “With this application you should give us any information, documents or submissions that you want the Tribunal to consider, or send them to us as soon as possible”.
No such material was forwarded to the Tribunal, and on 16 February 2004 it sent a letter informing the applicant that: “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”. It invited him to a hearing “to give oral evidence and present arguments in support of your claims”. It told him to “send us any new documents or written arguments you want the Tribunal to consider”.
The hearing first notified was changed to 28 April 2004, and the applicant attended on that day. The Tribunal gives a summary of what occurred in its reasons, and I consider that this is not inaccurate. The applicant tendered a transcript of the hearing which, with some insignificant corrections, was accepted as accurate by the respondent. I have read it all.
At the start of the hearing, the Tribunal noted that the applicant had presented some documents “yesterday”. These were a card dated “30 Dec 2000”, which the applicant claimed was his membership card for the Maoist Communist Party, and three pages of internet news reports concerning Nepal.
The Tribunal member told the applicant that he would ask some questions, “and, before I end, I will make sure there’s nothing further you want to say, to me”. He said: “So, my first question is, what do you fear, if you return to Nepal?” The applicant understood this to invite him to explain his fears, and did so in the same generalities with which his application had been framed. The Tribunal then sought to clarify this information, in particular as to the dates when the applicant had joined and left the Maoist party. There were then some questions as to his occupation, which he said was “farmer”.
The Tribunal, then, over some pages sought to explore the content and effect of the membership card presented by the applicant. It clearly raised concerns about the appearance of the document, but in my opinion none of its questioning on this, or on other matters up to this point in the hearing (which was more than half way), might suggest to a bystander that the Tribunal had closed its mind or would not give full consideration to the applicant’s evidence. In my opinion, the applicant was given a full opportunity to explain and respond to the Tribunal’s concerns about this document. His responses did not appear clearly persuasive as to the authenticity of the document.
The Tribunal then asked some questions arising from a Minute from the Fraud Analysis Unit, NSW, which it had found on the applicant’s file. This Minute is in evidence before me, with deletions of some details which Counsel for the Minister says are not material to the present matter. It refers to the arrival of the theatre group which included the applicant, and to an investigation into a Customs interception of a parcel addressed to a member of the group (apparently not the applicant). The Tribunal described this Minute in its reasons:
Attached to the applicant’s department file is a Departmental Minute dated 17 December 2003 stating that on 17 November 2003 Customs intercepted a parcel containing official Nepalese stamps and documents in an air courier consignment from Singapore and that these were delivered to an address where members of a Nepalese dance group had been staying subsequent to a Melbourne performance. A subsequent visit by members of the Department’s NSW Fraud Analysis Unit later questioned the people at the address.
At no point in the evidence or the Tribunal’s reasons is there a finding or suggestion by the Tribunal that the document presented to it by the applicant was a document originating from this package or from the persons investigated. The Tribunal’s questioning of the applicant on these matters appears in the transcript:
Q. 049 (Tribunal Member): Were you present when the Immigration Department Officials, in Australia, came about false documents that had been mailed, to Australia?
A. (Interpreter): I, I was not aware of that! I don’t know anything about the false document coming, here.
Q. 050 (Tribunal Member): Did you perform, in Melbourne?
A. (Interpreter): Yes! We had a concert, also, in, in Melbourne.
Q. 051 (Tribunal Member): The Department of Immigration , I think, you know, intercepted a parcel with a lot of false documents that could be used to make false things like this.
A. (Interpreter): I, I don’t know anything about the false document, and it is the genuine, and is/has (unclear/inaudible) not been used for this Certificate.
Q. 052 (Tribunal Member): I haven’t got very good copies. But this is what they look like. What, what does that say?
A. (Interpreter): This says, Nepalese Congress.
Q. 053 (Tribunal Member): Nepalese Congress! OK! And, this one is?
A. (Interpreter): This is Communist! This is Nepal Communist Party, MLA (unclear/inaudible).
Q. 054 (Tribunal Member): Right!
A. (Interpreter): And, this is the Membership ID.
Q. 055 (Tribunal Member): Right!
A. (Interpreter): And, the letter is the Communist, again.
Q. 056 (Tribunal Member): Letterhead, yeah!
A. (Interpreter): And, this is the Seal, Government Seal. And, this is the Police, is from the Police Office.
Q. 058 (Tribunal Member): Right! And, there are a lot of stamps, as well! I, you know, I beg your pardon! Is there one there? No! No, there’s not one. I, I, was looking! But it’s not the same. Not all of them were recovered.
A. (Interpreter): I don’t know, I don’t know anything about that one. But this is, you know, I got it from, from Nepal, from the Party. I don’t know anything about that false document.
I do not consider that this questioning was inappropriate in the circumstances, nor that it gives rise to an apprehension that the Tribunal did not or would not consider with an open mind the applicant’s responses to its concerns arising from it. Although the Tribunal referred to the Minute and its questioning of the applicant in its reasons, it drew no adverse inference against the applicant from it. I am not persuaded by anything in the evidence before me to accept the applicant’s submission that the Tribunal might appear to have closed its mind against the applicant prior to the hearing, as a result of its reading of this Minute.
I have considered whether the Tribunal’s reading and reference to this document gave rise to a breach of obligations of procedural fairness or under s.424A(1) of the Migration Act. In relation to the former, I am satisfied that the Tribunal’s oral questioning of the applicant on the document at the hearing sufficiently afforded him a reasonable opportunity to respond to any adverse suggestions concerning him which might arise from the Minute or its presence on the file read by the Tribunal. In relation to the latter, I note that, as held in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, a failure to serve a written invitation for comments may give rise to jurisdictional error in circumstances where no apparent unfairness has resulted. However, I accept the contention of Counsel for the Minister that no obligation arose under s.424A(1) in the present circumstances, since it is clear from the Tribunal’s statement of reasons that no information contained in the Department Minute provided “the reason, or part of the reason, for affirming the decision that is under review” (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [29-33], and VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [52-54]).
After this questioning, the Tribunal asked further questions about the card to which the applicant referred in his last response I have set out above. The applicant said: “I can’t explain … why they did write, in English. Because I ask for the ID or Certificate, and they just give like that to me”.
The transcript shows the hearing being completed as follows:
Q. 061 (Tribunal Member): All right! OK! Yes, I have a copy! Thanks! If, if you were being sought by the Government, why would they give you a Passport in your own name?
A. (Interpreter): Because I didn’t have any protection, except, you know, in, in, in Nepal, from the both sides, from the Maoists, and also from the Government, I want to go overseas, anywhere. And, I met some persons who organise the trip, outside, to go to overseas. And, I give a certain amount of money, as a fee, to the Agent, and they prepare my documents.
Q. 062 (Tribunal Member): Because also if the Government was looking for you, they could pick you up, at the Airport, when you departed because there is, always, identity checks?
A. (Interpreter): I don’t know why they didn’t arrest me. And, it was, when I was in the Airport, it was very busy. All the Officials were very busy.
Q. 063 (Tribunal Member): I find it very hard to believe your story. If, I’m sorry!
A. (Interpreter): It was, it was true that I was a Maoist, and I didn’t like, you know, that, the work Maoists were doing, and I abandon or left the Maoists because of that; because their violence activities are not, you know, good.
Q. 064 (Tribunal Member): You said that before but they have had a People’s War from 1996? So, why did it take you seven years to decide to leave?
A. (Interpreter): At that, that time they were involved in lots of good jobs.
Q. 065 (Tribunal Member): OK! Is, is there, I don’t have any other questions. Is there anything else that you wish to say to me that you haven’t told me yet? Before you answer, I need to make a quick call. [Yes! Ron Whitton in 11, if someone could come for the close? Thank you!] Yes! Is there anything else?
A. (Interpreter): Nothing else, Sir!
Q. 066 (Tribunal Member): OK! What I will do is I’ll look at what you’ve told me. I will then make a Decision. When the Decision is made the Tribunal will contact you. Thank you very much for coming.
In its reasons for decision handed down on 27 May 2004, the Tribunal referred to the applicant’s claims, and the course of the hearing which I have described above. It extracted a description of the situation in Nepal from a US State Department country report, and then gave short reasons for affirming the delegate’s decision:
FINDINGS AND REASONS
The applicant claims that he was for a time a member of the Maoist Communist Party in Nepal but left it and was subsequently threatened by the Maoists who feared he would divulge information to the authorities, and that he also felt threatened by the government and army who may not have believed he had left the party.
The Tribunal does not believe the applicant and finds that he has fabricated his claims. The reasons for the Tribunal making this finding are as follows. The Tribunal finds his statement that it was only in January 2003 that he became disillusioned with the Maoists not to be believable in that the party had been pursuing violent tactics since the beginning of its “People’s War” in 1996. Further, had the Maoists wished to do the applicant harm, they would have had considerable opportunity to do so in the period between when he claims he left the party until the time he departed Nepal. The applicant claims that the Maoists kept contacting and threatening him the whole time, and so his evidence is that they knew of his whereabouts and so could harm him had they wanted to. The fact that he was not harmed indicates to the Tribunal that either they were not serious in their threats, or, and the Tribunal finds that this is the case, that such threats were not occurring because he never had been a member of the Maoists. The Tribunal finds that he was able to procure a passport and depart Nepal indicates that the authorities had no interest in him. Similarly, prior to his departure, the authorities would have had ample opportunity to find and interrogate the applicant and the fact that this did not occur further strengthens the Tribunal in its finding that he was of no interest to the authorities since he had never been a member of the Maoists. The Tribunal is further strengthened in its misgivings as to his credibility by the fact that the purported Maoist membership card was filled out in English with a Western (rather than Nepalese) date provides to the Tribunal prima facie evidence that it is a fabrication designed to mislead the Tribunal.
In the light of the evidence before it, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
There are aspects of the above reasoning which are not compelling, but in my opinion it reveals no misunderstanding of the applicant’s claims, nor of the relevant law to be applied to them, and reaches conclusions of fact which were reasonably open on the material before it. I can find no jurisdictional error arising from the Tribunal’s reasons. Nor, for the reasons given above and further addressed below, can I find jurisdictional error arising from the procedures followed by the Tribunal at the hearing or otherwise before reaching its decision.
The applicant has not had any assistance from legal representation in the course of these proceedings, but has sought to present a full argument to identify flaws in the Tribunal’s decision and proceedings. I intend no disrespect for his efforts and those who may have helped him, when I say that most of the arguments in the documents and oral submissions he has presented went only to challenging the factual assessments made by the Tribunal, and did not identify possible jurisdictional errors which would vitiate the Tribunal’s decision.
Other propositions in the applicant’s documents alleged grounds of jurisdictional error in such generality that I was unable meaningfully to identify their relevance to the decision of the present Tribunal. These documents are on the file, and I do not consider that it is necessary for me to deal expressly with most of the contentions in them.

With the assistance of Counsel for the Minister, I did, however, identify the following issues seriously raised by the applicant and pressed at the hearing, which might give rise to jurisdictional error and which require my express attention.

Apprehended bias

I have foreshadowed the first issue when setting out the course of the hearing above. This was that the Tribunal’s questioning in the course of the hearing, and the form of its reasons, revealed evidence of bias sufficient to establish jurisdictional error.
Counsel for the Minister did not seek to persuade me that jurisdictional error would not arise if I was satisfied under tests of apprehended bias which have been applied to the proceedings of this Tribunal in the past. He did not contend that a duty on the Tribunal to avoid an appearance of bias was not implicit in one or more of the provisions of Division 4 of Part 7 of the Migration Act, so as to survive the effect of s.422B which applies to this matter. In view of this concession, and my conclusion below, I do not need to examine authorities relating to this question.
The High Court has indicated the appropriate test in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27-32]. Their Honours held that the test of “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” was applicable to proceedings in this Tribunal, and suggested that, in view of its administrative and inquisitorial nature, the test might be formulated “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 any apprehension of bias”.
The applicant’s submissions sought to find a basis for an apprehension of bias in the present case, chiefly by reference to the Tribunal’s reference during the hearing and in its reasons to the Departmental Minute concerning the investigation into fraudulent Nepalese documents which had been found in the possession of other members of his theatre group. However, as I have explained above I do not consider that the informed fair‑minded lay‑person would share the applicant’s apprehensions from the Tribunal’s consideration of this document. Rather, I consider that an observer would understand that the Minute was properly found on the applicant’s file, and was properly the subject of questioning at the hearing aimed at eliciting the applicant’s responses to its possible adverse implications. I am unable to find objective support for the applicant’s apprehensions arising from the nature of the Tribunal’s questioning and how it has referred to the Minute in its reasons.
The other aspects of the Tribunal’s proceedings which might give rise to concern in relation to apprehended bias are the brevity of the hearing, the prominence of sceptical questioning, and a concern that the Tribunal might have made greater effort to allow the applicant to present his claims in his own manner. The last of these aspects overlaps with a separate procedural fairness concern of the applicant, addressed further below, that the Tribunal unfairly discouraged him from giving evidence. However, for present purposes, it can also be considered as part of the question whether a reasonable apprehension of bias might arise from the Tribunal’s general conduct of its proceedings.
In Ex parte H (supra), the High Court pointed out that an assessment of ostensible bias in the present context must take into account the different nature of the Tribunal’s proceedings when compared to curial proceedings. Their Honours said:
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair‑minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision‑maker’s view.
In the present case, I have given careful consideration to whether the Tribunal may have inadvertently appeared to have conducted its hearing in a manner which was overbearing or intimidating so as to give rise to an apprehension satisfying the test set out above. The applicant himself claims that he felt intimidated into not elaborating his evidence and, in particular, into not taking up the Tribunal’s invitation to say more. I shall refer to his evidence on this further below, where I conclude that it is possible that this was true. However, an informed lay‑observer would, I consider, in the present case – as in many other proceedings in courts and tribunals – understand that many people emerge from their experiences feeling that they could have said more and that they were discouraged from doing so by the efforts of the presiding member to bring proceedings to a fair and expeditious conclusion. Taking into account the full course of the hearing shown on the transcript, I am not persuaded that the lay‑observer might form the requisite apprehension from how the Tribunal generally conducted its hearing in the present case.
I have further considered whether an apprehension of bias might arise from reading the Tribunal’s reasons in the light of its previous conduct of its hearing. I can understand that the applicant, after he had read the Tribunal’s ultimate adverse conclusions and then reflected upon the questioning which had occurred at the hearing, might feel that the Tribunal had decided against him and had closed its mind prior to the hearing. However, this would ignore that it was the function of the Tribunal to reach findings, including adverse findings on claims, and that an appearance of bias cannot arise merely because an applicant is disappointed by those findings. Moreover, under the legislative structure in which the Tribunal holds its hearings and then reaches its decision, it will inevitably approach the hearing after deciding provisionally that it cannot make a favourable decision (c.f. s.425(2)(a), and NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 per Allsop J at [52]). As the High Court points out, it will then be conducting an inquisitorial hearing in which it will be testing its provisional opinions about the case against the further evidence given by the applicant. Knowledge of this context must be attributed to the lay‑observer whose opinions are assessed under the test of apprehended bias. I do not consider that the lay‑observer would infer, with hindsight provided by the present Tribunal’s reasons, “that there was no evidence that the applicant could have given which could have changed the decision‑maker’s view” (adapting from Ex parte H (supra) at [31]).
Applying the test of ostensible or apprehended bias under Ex parte H (supra), both with and without the added formulation, I do not consider that it is satisfied in the present case.

Opportunity to be heard

The applicant’s written submission to me referred to Q.065 at the end of the transcript set out above, and complained:
The member asked me if I had anything more to add and then immediately rang to organize the closure of the hearing. I felt under this situation that I could not say anything more as it is impolite to continue when the Tribunal member had indicated by his actions that he had finished. I felt that he would not hear what I wanted to say as he had indicated that it was time to finish this made me feel very rushed and confused.
He also complained: “The Tribunal did not give me enough time, only about 40‑50 minutes to make my claims”.
In view of this complaint, and the applicant’s other complaints about the hearing, I drew his attention at the commencement of the hearing that the only evidence as to what happened at the hearing was in the transcript which he tendered and the Tribunal’s reasons. I invited him to give further evidence as to any aspect of the hearing which would not appear on the transcript and which might show unfairness. He accepted this invitation, and gave evidence in support of his claim that at the end of the hearing he had felt rushed and prevented from saying anything more.
The content and manner of his evidence left me with some doubt as to the truth of this, and it seemed to me that it was possible that his claimed feelings at the end of the hearing were the construction of hindsight assisted by his and his helpers’ reading of the transcript. However, Counsel for the Minister declined to cross‑examine the applicant, and I do not make a finding that his claims about his subjective state of mind at the end of the hearing are untrue.
However, determining whether under the principles of procedural fairness the applicant was denied a fair opportunity to present his case is to be addressed by the Court’s assessment of all the relevant circumstances, and an applicant’s feelings on the topic are not determinative. In the present case, the applicant’s opportunities to present full details of his claims had commenced when he made his visa application and, as I have indicated above, at several stages he had been prompted to present his case fully with written support. It should have been apparent to him that the hearing would involve an assessment of his written claims and supporting documents, as well as an opportunity to supplement that material. Reading the transcript, the applicant had several opportunities to explain his claims with more details and to answer the significant concerns of the Tribunal. I consider that the hearing he was afforded was sufficient to satisfy the requirements of procedural fairness.
The applicant made much of the fact that at the end of the hearing, after inviting the applicant: “Is there anything else that you wish to say to me that you haven’t told me yet?”, the Tribunal member used the internal telephone to request the return of the hearing officer “for the close”. However, I do not accept that this deprived the invitation of its expressed content. Clearly it did not, since after the telephone call, the member repeated his invitation: “Is there anything else?” In the circumstances, I consider that the interruption would have allowed the applicant to collect his thoughts while deciding whether he did have anything further to say. The applicant has then made a most definitive response: “Nothing else”. If, indeed, at that time he thought of things to say but decided not to say them, then I do not consider that this was the result of unfairness on the part of the Tribunal which rendered the hearing not a “real and meaningful” opportunity to be heard (c.f. NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]).

Adequacy of interpreter

The applicant’s written submission asserted: “The Tribunal was not aware that I have a lot of difficulty with the interpreter and did not clarify some points to find out what I was really trying to say”.
The applicant did not in his oral evidence, written submissions or oral submissions give this complaint any specificity or factual substance. On my own reading of the transcript I am unable to identify evidence of inadequacy of interpretation in the course of the hearing which would give rise to a breach of the Tribunal’s obligations arising from its duty to afford a hearing under s.425 of the Migration Act.

Other complaints

The above procedural issues were, in my view, the only substantial grounds for jurisdictional error arising from the applicant’s contentions, and they provided the focus of his oral submissions.
The applicant also endeavoured to make out submissions that the Tribunal’s reasons for rejecting the evidentiary weight of his party membership card were flawed. He also developed arguments that the Tribunal’s reasoning was flawed where it was based on its perceptions about his departure from Nepal. In support of this he tendered fresh evidence, and invited me to make findings about, for example, the use of English words and calendar in Nepal. In response to these complaints, it is enough for me to say that I consider that these matters concern only factual assessments of the Tribunal which were open to it on the evidence which was before it. The Tribunal might have reached incorrect conclusions on some facts, and the applicant might be able to persuade a different Tribunal to reach different conclusions about them. However, neither of these possibilities establish jurisdictional error, nor allow me to remit the matter in the absence of jurisdictional error.

I have not found such an error.
For the above reasons I dismiss the application.

I certify that the preceding forty‑four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 July 2005