SZEFM v Minister for Immigration

[2005] FMCA 1351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEFM v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1351

MIGRATION – Refugee – actual bias – bad faith.

Migration Act 1958, ss.36(2), 65, 422B, 424A, 424A(1), 424A(1)(a), 424A(1)(b), 424A(2), 424A(3)(b), 425, 425A, 425(1), 427, 427(1)(b), 474, 474(1), 474(2)
Federal Magistrates Court Rules 2001, r.21.02(2)(a)

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
Abebe v The Commonwealth (1999) 197 CLR 510 at 576
NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Refugee Review Tribunal Ex parte H [2001] HCA 28
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2003 v Commonwealth of Australia (2003) HCA 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109
SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200

Applicant: SZEFM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2587 of 2004

Judgment of: Nicholls FM

Hearing date: 12 September 2005

Date of Last Submission: 18 August 2005

Delivered at: Sydney

Delivered on: 21 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. A. Alex

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Refugee Review Tribunal to be joined as the second respondent in the proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $4600 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2587 of 2004

SZEFM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 19 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2004 and handed down on the 6 August 2004 to affirm the decision of a delegate of the respondent Minister made on 27 February 2004 to refuse protection visas to the applicants. The Tribunal is joined as the second respondent in these proceedings.

2. The applicants are husband and wife who are both citizens of India and who arrived in Australia on 3 February 2004. Only the applicant husband made claims to be a refugee pursuant to the Refugees Convention and these are particularly set out in an accompanying statement to his protection visa application which is reproduced at Court Book 37 to CB 38. The applicant wife did not have any claims to be a refugee in her own right and applied as a member of the applicant husband's family unit. Following refusal of the protection visa application the applicants sought review by the Tribunal and the application is reproduced at CB 61 to CB 64 and in particular the applicant husband put forward as his claims, as set out at CB 63, that he was not satisfied with the “the Department” decision and sought a more favourable decision from the Tribunal on the basis that his claims were genuine. The applicants were assisted by a migration consultant who had been nominated as the authorised recipient in relation to receiving correspondence on the applicants’ behalf (CB 62). The Tribunal's decision record at CB 80.8 to CB 82.1 also sets out the applicant's claims which were that he was a Hindu and that he and his father were supporters of the Congress Party who came into conflict with the opposition BJP, and that he and his father, following riots in Gujarat in 2001, set up a camp for people who had been displaced and helped them in many ways. This particularly brought them into conflict with the BJP who wanted to kill them, and that he and his father had been bashed by supporters of the BJP which resulted in them being hospitalised.  Following the burning of his shop, and an attempt to kidnap his son, the applicant went to the local police station to lodge a complaint and was told by police that they could not give any protection. The harassment from the BJP, and in particular the leader of the BJP in his area, escalated and the family moved to another area to avoid persecution, but were mistreated by local BJP supporters in that new area where the local police assisted in the mistreatment of Congress supporters. He returned to his home area and threats and harassment continued which then led to his leaving India.

3. The applicant husband appeared before me unrepresented and the applicant wife did not appear. He was assisted by an interpreter in the Gujarati language. Ms. Alex appeared for the respondents and tendered 3 documents which, after having them translated for the applicant and seeking his comments, I marked as:

   1.“Respondent’s Exhibit 1”, being a copy of a letter dated 23 April 2004 from the Tribunal to the applicants inviting them to a hearing of the Tribunal on 4 June 2004.

   2.“Respondent’s Exhibit 2”, being a Tribunal file note dated
   10 June 2004 reporting on a discussion with the applicants’ migration adviser.

   3.“Respondent’s Exhibit 3”, being a copy of a facsimile transmission from the applicants’ migration adviser dated 11 June 2004 and sent to the Tribunal advising that the applicant husband would not attend the hearing and wanted the decision to be made ‘on paper’.

4. The Tribunal's decision record at CB 82.2 states that on 23 April 2004 the Tribunal wrote to the applicants advising that it had considered all the material before it in relation to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing before it on 4 June 2004 (“RE 1”). On 25 May 2004 the applicant husband advised the Tribunal that he would attend the hearing. The Tribunal was in Melbourne and was to communicate with the applicant in Mildura through a video conference arrangement. The Tribunal was unable to conduct the hearing as scheduled on 4 June 2004, due to telecommunications difficulties. The Tribunal wrote to the applicants again by letter dated 4 June 2004 (CB 67) making reference to its earlier letter and provided another date and time for the hearing. The applicants’ response is at CB 69. Through their migration adviser the applicants indicated that they did not wish to come to the hearing and consented to the Tribunal proceeding to make a decision without taking any further action to allow, or enable, the applicants to appear before it. This was signed and dated by the applicants’ adviser on
   11 June 2004. The applicants’ adviser had previously contacted the Tribunal on 10 June 2004 and advised that the applicant husband did not want to attend the hearing, and wanted the decision “on paper”. This was confirmed by a facsimile transmission on 11 June 2004 from the adviser to the Tribunal (“RE 3”). 

5. The Tribunal then proceeded to determine the application on the evidence available. Its decision record clearly shows that the Tribunal noted and looked at all of the claims which the applicant husband had made. The Tribunal found that he had not provided sufficient information for it to be satisfied that there would be a real chance that he would suffer serious harm if he were to return to India. The legislative scheme provides that the Minister, pursuant to s.65 of the Migration Act, in dealing with an application for a visa, must be satisfied that the applicant meets the requirements for that visa. Relevantly, in relation to protection visas, one criterion is set out in s.36(2) of the Migration Act. The applicant for a protection visa must meet the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. The relevant legislative scheme requires a positive state of satisfaction as to whether protection obligations are owed and if that level of satisfaction cannot be reached, a refusal decision is mandated; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15]-[16]:

   “[15] It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s.36(2) of the Act is;

   ‘...that the applicant for the visa is:

   (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
   (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

   (i) is mentioned in paragraph (a); and

   (ii) holds a protection visa.’

   [16] It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister:

   ‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’

   Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty.”

   See also NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]:

   “[4] In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.

   [5] In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.”

6. In the case before me the Tribunal gave reasons for being unable to be satisfied, which included that there was vague and limited evidence in the application, and there was no evidence regarding the political group in which the applicant claimed to hold a position, and that the applicant provided no detail or explanation for his movement out of, and back to, his local area. Clearly the lack of detailed information and corroborating evidence was the critical factor in the Tribunal finding that it was unable to reach the requisite level of satisfaction that there was a real chance that the applicant would suffer harm amounting to persecution for any Convention ground if he were to return to India.

7. The application to the Court contains a series of complaints which in content, form and style are often seen in this Court. No particulars are provided and the applicants have not complied with orders made at the first Court date in this matter on 15 September 2004, to file and serve an amended application giving complete particulars of each ground of review relied upon by 1 December 2004. In any event, the applicant has filed written submissions on 22 February 2005 and 18 August 2005. From these the following possible complaints can be discerned:

   1)That the Tribunal was biased and acted in bad faith.

   2)That there was a breach of the rules of natural justice.

   3)That the Tribunal misunderstood or misapplied the relevant test relating to an assessment of refugee claims.

   4)That the applicant husband did not get an opportunity to attend the Tribunal hearing because he was not properly informed by the Tribunal of the hearing.

8. At the hearing the applicant complained that he was not able to adequately conduct proceedings before the Court in person but did not have funds to appoint a solicitor because of his financial hardship. His written submissions were that he had been to a number of organisations to receive legal aid but had failed in obtaining such aid and that he had also consulted a number of lawyers but was unable to afford the “extremely high charges”. I note relevantly that the applicant did access the Court's Legal Advice Scheme, and the report from the panel member of that scheme, who had been assigned to give advice to the applicant, was given to the Court on 18 March 2005 indicating that, on that date, written advice was prepared and sent to the applicant. I did not see the applicant’s comments regarding representation as rising above a mere complaint. This was not a situation where there was any prospect of legal representation put forward by an applicant to warrant any further time being provided for this purpose.

9. In relation to the applicant husband’s complaint concerning the hearing invitation, the applicant now claims that he was unable to attend the adjourned hearing before the Tribunal because of a doctor’s appointment. Clearly on the material before me, not challenged by the applicant husband, there is nothing to show that the applicant advised the Tribunal of any difficulties in attending the hearing on the second date provided by the Tribunal, let alone that the applicant sought any further adjournment. The only advice provided to the Tribunal by the applicant is that contained at CB 69, which clearly shows that acting on his behalf, the applicant’s adviser advised the Tribunal that the applicant did not want to come to a hearing and consented to the Tribunal proceeding to make a decision without taking any further action to allow the applicants to appear before it.  There is nothing before me to show that the applicant took any action in this regard other than what is evident at CB 69 and in “RE 2” and “RE 3”.

10. The applicant husband also complains now that he does not speak, read and write English and seems to imply that this was an impediment in his being properly served with the Tribunal's invitation to a hearing. In this regard I note that the applicant husband was represented by a migration adviser in the course of his application before the Tribunal (CB 62), and that the Tribunal's letter advising of the adjourned hearing date was sent to the migration adviser, with a copy to the applicants. Both letters were sent to the addresses provided in the application to the Tribunal and the letter sent to the migration adviser was consistent with the applicants’ advice in his application to the Tribunal that all correspondence in relation to the application should be sent to the “Authorised Recipient” who was nominated as being the migration adviser, with a copy sent to the applicants’ mailing address. The Tribunal acted consistently with this advice. There is nothing before me to show that the migration agent made any attempt to advise the Tribunal of any difficulties that the applicants had in attending the hearing. On the material before me, what was clearly put before the Tribunal was that the applicant husband, without explanation, and with the benefit of having a migration adviser, did not want to attend the adjourned hearing and did not seek any further adjournment of this hearing date. Nor does the applicant husband now complain, let alone provide any evidence, that the adviser acted without authority in the advice that he gave to the Tribunal.

11. One issue raised by Ms. Alex at the hearing before me was in relation to the nature of the letter of 4 June 2004 from the Tribunal advising of the adjourned hearing date and whether there was any necessity for this letter to comply with the provisions of s.425A, particular as to the time for the giving of the notice (CB 67 to CB 68). Ms. Alex argued that the Tribunal having received the applicants’ application and being unable to make a decision in the applicants’ favour at that time invited the applicants to a hearing before it. That letter of 23 April 2004 (“RE 1”) and the circumstances surrounding it, that is, the relevant time periods for the giving of notice of the hearing, and other relevant notices required to be given to the applicants by the Tribunal, show that the Tribunal was in compliance with all of its relevant statutory obligations. The applicant did attend that hearing at the appointed time and date being 4 June 2004. Ms. Alex submitted that as that hearing could not proceed due to telecommunication difficulties the Tribunal in properly exercising its power pursuant to s.427(1)(b), being a power to adjourn the review from time to time, advised the applicant of a new hearing date, and that the letter of 4 June 2004 advising of the new hearing date of 18 June 2004 should be seen as a notification of an adjournment. Ms. Alex submitted that the requirements of s.425A of the Act which deal with the notice of the invitation made pursuant to s.425 to appear at a hearing before the Tribunal do not apply to the adjourned hearing in the present circumstances where the applicant had already availed himself of the earlier invitation to appear and his appearance of 4 June 2004 was merely stood over to 18 June 2004. She relied on the authority of Conti J. in SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 where his Honour, in considering and dismissing an appeal of the decision in the Federal Magistrates Court, said at [29]:

    “In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of the rescheduled hearing, at least in so far as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Healy J. indicated in NAHF albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act. As Barnes FM reasoned in SZBAZ, in my opinion rightly, ‘[w]ere it otherwise, any delay, even of minutes or hours, at the request of the applicant, would give rise to a failure to comply with s 425A’. Other examples of circumstances where the conduct of a review by the Tribunal could be unreasonably thwarted readily come to mind. It is conceivable moreover that an applicant could set in train an indefinite number of re-schedule hearings in a repetitive context of the requirements of not less than 14 days’ notice. It was I think soundly submitted by the Minister that Scarlett FM’s finding in the present case was correct to the effect that the period of notification given for the rescheduled hearing was reasonable and according to law, albeit involving less than 14 days’ notice. I would dismiss the appeal, which, aside from this controversial issue as to notice, was in any event devoid of any apparency of merit.” 

1. The submission by Ms. Alex was that similar reasoning should apply in the case before me, that where a Tribunal adjourns a hearing due to telecommunication problems that the subsequent adjournment date was authorised as part of the Tribunal’s adjournment power, and the Migration Act did not prescribe any further or additional notice requirements. The submission was that the letter of 23 April 2004 (“RE 1”) complied with the requirements of s.425(1), and with the period of notice required pursuant to the s.425A, and the other requirements contained in that section. Further that the letter of 4 June 2004 was an exercise of the Tribunal's adjournment power pursuant to s.427 and that there were no prescribed time limits in relation to this notification of the adjournment.

2. It is clear that the circumstances in the case before me can, in some respects, be distinguished from the circumstances before the Court in SZDQO. In that case the Tribunal rescheduled the hearing as a result of the applicant's non-attendance at the original hearing, and at the applicant's own initiative. That is not the situation in the case before me. Clearly the applicant was invited to a hearing and attended at the first hearing date. The rescheduling of the hearing was not as a result of the applicant's non-attendance, or at the applicant’s own initiative, but was due to telecommunication difficulties. There is no suggestion in the case before me that the applicant sought any rescheduling in the context as set out in SZDQO, nor in the context of the case referred to by His Honour at [29], that of SZBAZ, where the Court was dealing with circumstances where the conduct of a review by the Tribunal could be unreasonably thwarted by the actions of the applicant. There is no such suggestion in the case before me that the applicant was seeking to set in train an indefinite number of rescheduled. Nonetheless, I do accept the respondent’s submission in so far as it characterises the letter of 4 June 2004 as an exercise of the Tribunal's adjournment power. Clearly the applicant had been invited to a hearing and all the requisite statutory provisions were complied with. While the hearing did not proceed on the first date, not as a result of any action by the applicant, equally neither was the failure to proceed some capricious or unexplained act on the part of the Tribunal. As the Tribunal itself saw it, as set out in its decision record at CB 82.4, the hearing was “adjourned” due to telecommunications difficulties. It was clear that the Tribunal saw itself as exercising its adjournment power. This course of action was open to the Tribunal in the circumstances before it, and on this basis I can see no error in how the Tribunal proceeded.

3. Ms. Alex also submitted in the alternative that if it were found that the Tribunal was in breach of the requirements of s.425 and s.425A, that the applicant had not been given the requisite 14 day notification requirement as set out in the relevant regulations, that any such breach of these provisions would not sustain relief in the circumstances of this case because any breach would not have made any difference to the outcome given the facts of the situation in this particular case. In this regard I note the observation of Conti J. in SZDQO at [31], handed down on 27 July 2005, and relevantly the corrigendum issued on the
   12 August 2005:

   “I would add that there is force in the submission of the appellant in the alternative, in accordance with the notice of contention filed, that if jurisdictional error has been established, contrary to my present view, then to the extent that the Court has a viable discretion in the circumstances of the case, relief should be declined in any event. In that regard, the appellant did not testify that he wanted to attend the hearing secondly scheduled in lieu of the first hearing, but was prevented from doing so by insufficiency of notice. Nor was there any evidence of indication to suggest that the appellant had further evidentiary material he would have put before the Tribunal in that regard. Moreover for what it may further matter, when informed by the Minister that the Tribunal's decision would be shortly handed down, the appellant did not seek to put further material before the Tribunal, nor seek any further Tribunal hearing antecedently to the handing down of its decision.”

4. In the case before me the circumstances present a somewhat stronger case for the Court to refuse to provide the discretionary relief sought. While the applicant in the case before His Honour Conti J. was said to have not testified that he wanted to attend the secondly scheduled hearing, in the case before me the applicant through his migration adviser positively advised the Tribunal that he did not wish to attend the hearing and was content for the matter to be decided “on the papers”. The insufficiency of notice was not an issue put before the Tribunal, nor as was referred to by His Honour Conti J. in the case before him, was there any evidence or indication to suggest that the applicant before me had further evidentiary material he would have put before the Tribunal in support of his application. Again when informed on 15 July 2004 (CB 72 CB 71) that the Tribunal was intending to hand down its decision on 6 August 2004 a period of some three weeks hence, neither the applicant nor his adviser sought to put any further material before the Tribunal, nor did they seek any further Tribunal hearing prior to the handing down of the decision. I have found there is no jurisdictional error in what the Tribunal has done in relation to the adjournment notification, but would in any event not exercise the discretion to provide the relief sought by the applicant in all the circumstances set out above.

5. In relation to the applicants’ complaint of bias and bad faith, the applicant husband has put nothing before the Court to establish any of the relevant elements as set out in authorities. For the applicants’ benefit I should set out that, allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). No particulars of bias or apprehended bias are alleged. I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias.

   Also, the application fails the test of establishing bad faith as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegations of bad faith are not clearly alleged, no attempt at proof is offered and no personal fault or absence of honesty on the part of the decision maker has been made out.

6. The applicant husband was unable to particularise the claim of a breach of procedural fairness beyond perhaps a reference to the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 and a reference to the High Court decision in Plaintiff S157/2003 v Commonwealth of Australia (2003) HCA 2. To the extent that the applicant seeks to rely on a breach of the rules of natural justice then there is nothing before me to show that any such breach occurred. The applicant made his application to the Tribunal, was given an opportunity to attend a hearing before the Tribunal, attended at the hearing date in the first instance, but without explanation chose not to attend at the adjourned hearing date, responded without any explanation, elaboration, or indication of any difficulties that he did not want to attend the hearing, and knew that the Tribunal could then proceed to make a decision on what was before it. I can see no error in how the Tribunal has proceeded in this regard.

7. I should also note that the applicant stated in his written submission of 22 February 2005:

   “The Tribunal did not treat this matter as a s.424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal. I provided my claim. I refer CB page 37-38.”

8. I understood the applicant to be saying that his claims at CB 37 to CB 38, being the claims submitted to the first respondent's Department, were put before the Tribunal by him, and this is consistent with the applicant's statement in his application to the Tribunal. He stated that he was not satisfied with the decision that was made and was seeking a more favourable decision from the Tribunal, and made a reference to his claims, and that they were genuine. I understood the applicants’ complaint to be that if the Tribunal had difficulties or doubts about the applicants’ claims which had been put before it then this should have been put to him pursuant to s.424A, presumably s.424A(1), and that he should have been provided with an opportunity to comment. I have already dealt with the issue relating to the opportunity to comment at a hearing. In relation to the issue of whether the information, to the extent that the information provided to the first respondent's Department was information on which the Tribunal relied in making its decision, should have been put to the applicant pursuant to s.424A(1) (and with the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 in mind) in the manner set out in s.424A(2), I note that as confirmed by the applicant, such information would fall within the exception contained in s.424A(3)(b) from the requirement to provide such information to the applicant. The applicant confirms that he put this material before the Tribunal. In any event the Tribunal is not required to put to an applicant any adverse inferences or matters going to its thought processes. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason or part of the reason for affirming the decision under review. Clearly s.424A is concerned with knowledge of a fact or circumstances communicated or received by the Tribunal. It is not concerned with the thought process of the Tribunal. In Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 His Honour Justice Sackville said:

   “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”

9. To the extent that the applicants make reference to Plaintiff S157 in the written submissions to make out a complaint that the Tribunal was required to provide procedural fairness, then the High Court in Plaintiff S157 upheld the validity of s.474 of the Migration Act, which is concerned with privative clause decisions as defined by s.474(2), and further provides in s.474(1) that a privative clause decision is not reviewable by the Courts. The Court upheld the validity of s.474, but found that an administrative decision which involves jurisdictional error is not a privative clause decision and is therefore subject to review by the Courts. For the reasons above I can see no error of that type in the Tribunal's decision. This is a privative clause decision. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 21 September 2005