SZEQX v Minister for Immigration

[2007] FMCA 2091

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2091

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the second Refugee Review Tribunal was obliged to invite the applicant to come to a further hearing – whether the Tribunal complied with s.425 Migration Act 1958 (Cth) – whether the Tribunal made irrelevant findings or findings not based on the evidence – whether the Tribunal’s decision is vitiated by apprehended bias – whether the second Refugee Review Tribunal adopted findings of the earlier constituted Refugee Review Tribunal.

Migration Act 1958 (Cth), ss.424A;425(1);474

SZILQ v Minister for Immigration and Citizenship [2007] FCA 942
NBKM& Ors v Minister for Immigration and Citizenship [2007] FCA 1413
Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541In SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713
SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100
QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Othersv Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264

Applicant: SZEQX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3775 of 2006

Judgment of: Emmett FM

Hearing dates: 17 July 2007 & 10 December 2007

Date of last submission: 10 December 2007

Delivered at: Sydney

Delivered on: 14 December 2007

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner, Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr D. Godwin

Solicitors for the Respondent: Mr O. Young, Blake Dawson Waldron
Ms S. Kantaria, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3775 of 2006

SZEQX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant claims to be entitled to a protection visa by reason of a fear of persecution in India from Hindu extremists and the Bharatiya Janata Party government by reason of being a Muslim.

2. The applicant is a citizen of India who arrived in Australia on a Subclass 456 (Temporary Business) visa on 30 December 2003 (“the Applicant”).

3. On 27 January 2004, the Applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). In his protection visa application the Applicant stated that he feared persecution if he were to return to India from Hindu extremists by reason of being a Muslim. He stated in the application that he would provide further details, however, no further information was received by the Department from the Applicant or his migration agent.

4. On 31 March 2004, a delegate of the Department refused the Applicant a protection visa. The delegate noted in its decision that the Applicant’s claims were “very generalised, and unsubstantiated and brief.” The Tribunal noted there was no evidence or detail to corroborate the Applicant’s assertions and that the Applicant had provided only “minimal information”.

5. On 27 April 2004, the Applicant lodged an application with the Refugee Review Tribunal for review of the delegate’s decision.

6. The Applicant provided a statement in support of his claims to the Refugee Review Tribunal. In that statement the Applicant stated that when his brother married a Hindu girl in Gujarat the brother fled from India to Pakistan to avoid murder. The Applicant stated that his brother’s marriage to the Hindu girl was “a big issue for the Hindu fundamentalists RSS” resulting in the Applicant’s family becoming the target of attack. The Applicant stated that the Hindu girl’s father was a “very influential Hindu fundamentalist” who bribed the police to protect the Applicant and his family.

7. The Applicant stated that at the beginning of 2001 he went to the home of the Hindu girl’s father to seek to resolve matters, however, he sated the father called the RSS members who beat up the Applicant and made their dog bite him. The Applicant stated that he “went through medical treatment for 2 years for the dog bite.” The Applicant stated that he reported “torture and threats” to police who failed to act.

8. The Applicant stated that he then went to live with his uncle in Chennai and when members of the RSS discovered he was in Chennai they came in search of him, destroyed his home and attacked his wife and children. The Applicant stated that his uncle attempted to protect them but was immediately killed by the RSS members who then kidnapped his wife and children. The Applicant stated that his parents were also kidnapped and his elder brother tortured by the RSS. The Applicant stated that he then fled to Mainpur and stayed with a friend of his uncle’s, however, the RSS again found him.

9. The Applicant then stated he fled to Calcutta and was searching for his wife, children and parents. The Applicant stated that he noticed he was being followed in Calcutta so he returned to Chennai where he met with a friend of his uncle’s who was a travel agent and who arranged a passport and visa for him to enter Australia.

10. On a date prior to 17 September 2004, the Applicant attended a hearing before the Refugee review Tribunal at which he gave evidence and presented oral arguments.

11. On 10 August 2006, by consent the decision of the Refugee Review Tribunal was quashed and the matter remitted to the Refugee review Tribunal for determination according to law pursuant to an order made by Justice Dowsett of the Federal Court of Australia.

The Tribunal’s review and decision

1. On 14 September 2006, the Refugee Review Tribunal, as reconstituted, (“the Tribunal”) wrote to the Applicant informing him that:

   ‘The Member may do one or more of the following:

   ·    seek further information

   ·    seek your comments on particular information

   ·    invite you to a hearing

   before making a decision on your case.”

2. On 20 September 2006, the Tribunal wrote to the Applicant and identified inconsistencies in the Applicant’s written claims and oral evidence given to the first Refugee Review Tribunal, including new claims made by the Applicant. The letter informed the Applicant that the information is relevant because the inconsistencies in the Applicant’s evidence may lead the Refugee Review Tribunal to conclude that the Applicant’s claims lack credibility and that, therefore, the Tribunal may be unable to be satisfied that the Applicant has a well-founded fear of persecution in India. The letter invited the Applicant to comment and informed the Applicant that if comments were not received by 13 October 2006 the Tribunal may make a decision on the review of your case without further notice.

3. On 11 October 2006, the Applicant’s migration agent wrote to the Tribunal addressing the Tribunal’s letter dated 20 September 2006. The Applicant’s response also enclosed a statement from the Applicant expanding on his claims; a copy of the Applicant’s prescription for Dilantin; reports from the Applicant’s treating doctor in Australia, Dr Krishnan, dated 21 November 2005 and 12 October 2006; and, a letter from a Mr Omar from New York who said he had been to India on business and sought to learn more about the Applicant’s family. Mr Omar’s letter stated that the Applicant’s family members “were still being kidnapped by RSS thugs.” Mr Omar stated he was unable to find “any clue about them.” Mr Omar’s letter also stated that the RSS thugs were looking for the Applicant and that the Applicant’s future could not be guaranteed if he were to return to India.

4. On 18 October 2006, the Tribunal wrote to the Applicant inviting him to come to a handing down of the decision on 7 November 2006. On 1 November 2006, the Applicant wrote to the Tribunal expressing surprise that he had not been invited to a further hearing before the Refugee Review Tribunal, as reconstituted.

5. On 2 November 2006, the Tribunal responded to the Applicant’s letter informing him that the presiding Member had considered the Applicant’s letter of 1 November 2006, however, had decided not to invite the Applicant to attend a further hearing. The letter stated that, if the Applicant believed he had information that would warrant the holding of a second hearing, he should present it to the Tribunal before the date on which the decision was scheduled to be handed down. The letter stated that “The Member would be prepared to hold a second if new facts presented require it.”

6. No further material was provided by the Applicant to the Tribunal and its decision was handed down on 28 November 2006.

7. In its decision the Tribunal identified the written and oral claims made by the Applicant.

8. In particular, the Tribunal referred to: the information in the Applicant’s protection visa application; the Applicant’s statement dated 19 April 2004; the Applicant’s application for review dated 27 April 2004; the Applicant’s oral evidence given to the Refugee Review Tribunal at the hearing on 10 August 2004; the Applicant’s responses to the Tribunal’s s.424A letter dated 20 September 2006; the statement of the Applicant enclosed with his response to the Refugee Review Tribunal’s s.424A letter; the handwritten letter from Mr Omar; two reports from Dr Krishnan, dated 21 November 2005 and dated 12 October 2006; and, a copy of prescription for Dilantin issued in India on 10 December 2003.

9. The Tribunal found the Applicant’s evidence to be “profoundly unsatisfactory.”

10. The Tribunal noted in particular the vagueness of the Applicant regarding the timing of the claimed abductions of his wife, children and parents and found that claim to be “completely unbelievable”; and the Applicant’s differing evidence as to how he found out about his parents abduction.

11. The Tribunal found the Applicant’s evidence to be “similarly vague” about his brother’s relationship with the Hindu woman some time in 1999. In particular, the Tribunal noted that the Applicant had claimed that the relationship lasted 5 years before his brother eloped with the Hindu woman. However, the woman’s father, who appeared to be at the heart of the Applicant’s difficulties with the RSS, did nothing about the relationship during that 5 year period. The Tribunal did not accept that the father did not know of the relationship for that time.

12. The Tribunal found that the Applicant’s claims that from 2001 onwards he was pursued relentlessly wherever he was in India and that his family was kidnapped, to be claims that defied credibility. The Tribunal comprehensively rejected the Applicant’s claims in this regard.

13. The Tribunal was not satisfied that the Applicant was attacked because of the brother’s relationship. The Tribunal further was not satisfied that the Applicant suffered epilepsy or fits as a result of a dog bite resulting from a visit by the Applicant to the father of his brother’s girlfriend.

14. The Tribunal was not satisfied that the Applicant had suffered persecution as claimed because of any relationship his brother had with a Hindu woman. Accordingly, the Tribunal did not accept that there is a real chance that the Applicant may be harmed for any Convention reason should he return to India.

15. In rejecting the Applicant’s claims, the Tribunal noted that it disregarded inconsistencies in claims made by the Applicant in his protection visa application and made orally to the earlier Refugee Review Tribunal.

16. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented before this Court by his solicitor, Mr Turner. Mr Turner relied on a further amended application that identified the following grounds:

   “1. The Tribunal failed to carry out its statutory duty.

   Particulars

   (a)The Tribunal failed to carry out its duty to invite the Applicant to a hearing by section 425.

   The Tribunal’s obligation was not fulfilled by the earlier hearing as issues arising in relation to the decision under review arose in the mind of the Second Tribunal which were not covered by the First Tribunal.

   2. The Tribunal denied the Applicant procedural fairness.

   Particulars

   (a)The Tribunal made findings of fact without referring those matters to the Applicant for comment.

   (i)          The Tribunal made findings in relation to the Applicant’s epilepsy and the drugs taken without raising those matters with the Applicant.

   3. The Tribunal relied upon irrelevant material.

   Particulars

   (a)The Tribunal relied upon the findings of a former Tribunal which was subject to a writ of mandamus.

   4. The Tribunal’s decision is vitiated by apprehended bias.

   Particulars

   (a)The Tribunal’s decision leads to a reasonable inference that it did not bring an open mind to its tasks by the following:

   (i)          making adverse findings in relation to the Applicant’s credibility without inviting him to a hearing to explain the inconsistencies.

   (ii)     The Tribunal simply “cut and pasted” the former tribunal’s decision without even changing the “first person” description of the Applicant’s questioning.”

Ground 1

1. I understand Mr Turner’s submission in support of this ground to be that the Tribunal found that the Applicant did not suffer from epilepsy and then used that finding to reject the Applicant’s claim of having been bitten by a dog and then, in turn, used that finding to reject the Applicant’s claim for having been harmed for a Convention reason.

2. Mr Turner referred the Court to the recent decision of Buchanan J of the Federal Court of Australia in SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 (“SZILQ”) as support for the proposition that s.425(1) of the Migration Act 1958 (Cth) (“the Act”) requires the Refugee Review Tribunal to invite the Applicant to give evidence and present arguments relating to issues arising in relation to the decision under review.

3. In SZILQ, Buchanan J stated that the decision of the Refugee Review Tribunal in the case before him had commenced the statement of its material findings with a rejection of “all of his material claims” on the basis that the appellant was not a credible witness. His Honour observed that the reconstituted Refugee Review Tribunal and that the reconstituted Refugee Review Tribunal’s adverse credibility finding was not based on evidence taken directly from the applicant. In SZILQ the Refugee Review Tribunal did not put any written questions to the Applicant, the responses to which may provide a foundation for an adverse finding.

4. However, in the proceeding before this Court, the Tribunal identified to the Applicant with particularity the matters that caused it concern about the Applicant’s oral evidence provided to the earlier constituted Refugee Review Tribunal and the Applicant’s written claims and evidence. The Tribunal had particular regard to the detailed response made by the Applicant and the further material provided by the Applicant.

5. Mr Turner submitted that the Tribunal made a finding that the Applicant did not suffer from epilepsy in the face of a medical report stating that the Applicant had been given anti-convulsive medication for his epilepsy and that this was an issue of which the Applicant was entitled to be made aware of and have an opportunity to respond. The particular paragraph the subject of Mr Turner’s submissions is as follows:

   “Much has been made of the dog bite and the applicant’s subsequent epilepsy. There is no evidence before me to support the applicant’s claim to suffer from epilepsy. I accept that the drug, Dilantin is used to treat epilepsy. However, although the applicant has produced prescriptions issued in India and Australia for the drug, neither doctor indicates for what illness it is being prescribed or how he came to suffer from the illness. I am particularly concerned that his Australian doctor appears to have prescribed the drug without conducting or having conducted any tests to enable a diagnosis to be confirmed. In the circumstances, I am not satisfied that the applicant suffers epilepsy or fits as a result of a dog bite resulting from his visit to the father of his brother’s girlfriend or wife.”

6. A fair reading of the Tribunal’s words makes clear that the Tribunal did not accept that any epilepsy suffered by the Applicant was as a result of a dog bite that occurred during the Applicant’s visit to his brother’s girlfriend’s father.

7. A fair reading of the Tribunal’s decision makes clear that the Tribunal found that there was no evidence of a confirmed diagnosis of epilepsy in the Applicant. There were two letters provided by the Applicant to the Tribunal from Dr Krishnan. One dated, 21 November 2005, stated that the Applicant was on medication “for his epilepsy from India” and the other dated, 12 October 2006, stated that the doctor had no medical report or investigations regarding the Applicant’s epilepsy. In the circumstances, the Tribunal’s observations about the lack of evidence of a confirmed diagnosis of epilepsy was open to it on the material and evidence before it and for which it provided reasons.

8. Accordingly, Mr Turner’s contention that the Tribunal made a positive finding that the Applicant did not suffer from epilepsy is rejected.

9. In any event, the issue is not so much whether or not the Applicant suffered from epilepsy as to whether or not the Applicant had suffered past harm for a Convention related reason. Both a dog bite and epilepsy are capable of being considered as harm.

10. However, the Tribunal was not prepared to accept that any harm that may have befallen the Applicant as a result of epilepsy or dog bite was for a Convention related reason. That issue was explored in detail by the earlier constituted Refugee Review Tribunal with the Applicant at the hearing. Those exchanges are reproduced by the Tribunal in its decision. In particular, the earlier constituted Refugee Review Tribunal put squarely to the Applicant questions as to why the Applicant had not obtained a letter from his treating doctor in India setting out his condition of “fits” and the fact that he had been injured. The earlier constituted Refugee Review Tribunal noted the Applicant’s response and noted it again asked the Applicant if the Applicant considered “obtaining some medical evidence regarding the injuries he had suffered.” The Refugee Review Tribunal noted the Applicant’s responses.

11. A fair reading of the Tribunal’s decision where it quotes the earlier constituted Refugee Review Tribunal’s decision record of its exchanges with the Applicant discloses that there were detailed exchanges between the Applicant and the Tribunal about the dog bite.

12. In the circumstances the issues arising from the Applicant’s allegation of suffering epilepsy as a result of a dog bite from a dog that was set upon him by the father of his brother’s girlfriend was an issue squarely raised before the earlier constituted Refugee Review Tribunal.

13. In its s.424A letter dated 20 September 2006, the Tribunal raised with the Applicant the inconsistency in evidence given by the Applicant about medical treatment following the dog bite and when the Applicant commenced experiencing fits. The Applicant responded to the Tribunal’s concerns and those responses were considered by the Tribunal.

14. The Tribunal, having considered the evidence and material before it, made the finding that it was not satisfied that the Applicant suffered epilepsy as a result of the dog bite resulting from the Applicant’s visit to the father of his brother’s girlfriend. As stated above in these reasons, that finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.

Whether Tribunal was obliged to invite Applicant to a second hearing

1. The Tribunal’s letter dated 20 September 2006 concluded by saying that “IF YOU DO NOT GIVE COMMENTS BY 13 OCTOBER 2006 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.” The Tribunal then proceeded to make its decision on the review without further notice and in spite of the Applicant’s response.

2. However, when the Applicant raised its concern about not being invited to a further hearing, the Tribunal wrote to the Applicant on 2 November 2006, inviting the Applicant to provide it with any further information that may warrant the holding of a second hearing. The Applicant declined to provide any further such information.

3. Federal Court of Australia authorities have differed as to whether or not there is an obligation on the Refugee Review Tribunal to invite an applicant to a second hearing.

4. In NBKM & Ors v Minister for Immigration and Citizenship [2007] FCA 1413 (“NBKM”) Siopis J stated at [25] “there is no absolute right to a second hearing when a matter is remitted to the tribunal for hearing according to law”. Nor is there any right to a hearing before the Refugee Review Tribunal member who decides the review (Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; NBKM at [23]-[24]).

5. In SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713, dated 9 November 2007 (“SZJHL”), Finn J at [16] stated that, where the entirety of an applicant’s claims and his credibility were generally at issue in the review then any greater doubts that a second Refugee Review Tribunal may have about an applicant’s credibility does not raise new or unexpected issues for which in fairness a further opportunity for comment ought to be provided. Finn J held that “To hold otherwise in the present case would be to give rise to what in a s.424A context, the High Court has described as a “a circulus inextricabilis” of invitation and comment: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [20].”

6. However, in SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100 (“SZHLM”), dated 23 October 2007, Cowdroy J at [34] found that a “reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place.” Cowdroy J is the only authority for the proposition that a reconstituted Refugee Review Tribunal is required to invite an applicant to a hearing. There is no reference in Cowdroy J’s decision to NBKM, although SZHLM was decided after NBKM. In the circumstances I do not regard myself as bound by SZHLM and I propose to follow NBKM and SZJHL.

7. The Tribunal made clear the circumstances in which it would consider inviting the Applicant to a second hearing. The Applicant did not provide any further information to the Tribunal. The Tribunal identified to the Applicant concerns it had about the evidence and material before it in its s.424A letter dated 20 September 2006 and noted the Applicant’s responses to that letter. In the circumstances, the Tribunal was entitled to conduct the hearing in the manner in which it did.

8. The issue before the Tribunal in the proceeding before this Court was whether or not the Applicant had a well-founded fear of persecution arising from his claims of suffering epilepsy as a result of a dog bite from a dog set upon him by the father of his brother’s Hindu girlfriend. As referred to above in these Reasons, that was an issue arising from claims made by the Applicant before the earlier constituted Refugee Review Tribunal and maintained before the Tribunal. The Tribunal’s rejection of those claims was open to it on the evidence and material before it and for which it provided reasons.

9. In the circumstances, there was no obligation on the Tribunal to invite the Applicant to a further hearing to explore further that issue.

10. Accordingly, ground 1 is rejected.

Ground 2

1. For the reasons referred to above, the Tribunal’s findings that it was not satisfied that the Applicant suffered from epilepsy or fits as a result of the dog bite resulting from his visit to the father of his brother’s girlfriend was not a finding made by the Tribunal without the issue having been raised with the Applicant by the Tribunal.

2. Accordingly, ground 2 is not made out.

Ground 3

1. Mr Turner identified three findings in his written submission upon which this ground is based which he submitted were irrelevant or in respect of which there was no evidence:

   “(a)The manner in which young unmarried women are supervised in India.

   (b)That the Applicant’s brother’s partner’s father knew about their relationship before they eloped.

   (c) That the Australian doctor did not confirm the diagnosis.”

2. In relation to (a), Mr Turner submitted that there was no evidence to support such a finding. He referred the Court to QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918 (“QAAA”).

3. In QAAA, Collier J at [33] found that a finding by the Refugee Review Tribunal about the view that Iranian authorities may take of an applicant’s United States navy service did not appear to be based on any evidence before it and was therefore not open on the evidence before it.

4. Mr Turner submitted that the Tribunal’s disbelief of the Applicant’s claim that his brother’s girlfriend’s father did not know of their relationship for 5 years was based on the Tribunal’s view of “The manner in which young unmarried women are supervised in India”. Mr Turner submitted that there was no evidence before the Tribunal of that fact.

5. However, I do not accept that the Tribunal’s finding in the proceeding before this Court is analogous to that in QAAA. In QAAA the appellant had contended that the cumulative effect of factors relevant to him, including his United States navy service meant that he had a well-founded fear of persecution in Iran. In QAAA, the Refugee Review Tribunal found that Iranian authorities were unlikely to persecute him in Iran because of his 20 years of United States navy service despite finding that the United States was a “sworn enemy” of Iran. Collier J found that there was no evidence to support the Refugee Review Tribunal’s finding in circumstances where the Refugee Review Tribunal accepted that the United States was a sworn enemy of Iran.

6. However, in the proceeding before this Court, the Tribunal totally rejected the Applicant’s claims of his brother’s relationship with a Hindu woman. The Tribunal did not accept that the woman’s father did not know of her relationship with the Applicant’s brother for 5 years. Part of the Tribunal’s reason for that finding was because of the manner in which young unmarried women are supervised in India.

7. However, that finding is neither illogical or unreasonable in the way in which the finding of the Refugee Review Tribunal in QAAA may have been. For example, in QAAA the Refugee Review Tribunal accepted that Iran was the sworn enemy of the United States and that the appellant had spent 20 years of conspicuous service in the United States navy.

8. In the proceeding before this Court, the Applicant’s claims are altogether rejected. The Tribunal found that the persecution alleged by the Applicant defied credibility and was “not satisfied that anything of the kind had occurred.” The Tribunal’s findings, including the adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it gave reasons. Credibility findings are a matter “par excellence” for the Tribunal (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407).

9. In the circumstances, there is no error going to the Tribunal’s jurisdiction by reason of its finding that, because of the manner in which young unmarried women are supervised in India, the Tribunal did not accept that the girl’s father did not know of her relationship with the Applicant’s brother where the relationship had been going on for 5 years.

10. In relation to (b) above, Mr Turner submitted that the Tribunal irrelevantly found that the Applicant’s brother’s girlfriend’s father knew about the relationship before they eloped. However, the Tribunal made no such specific finding. A fair reading of the Tribunal’s decision makes it clear that the Tribunal rejected comprehensively all the Applicant’s allegations about his brother having a relationship with a Hindu woman.

11. In any event, there is no error on the part of the Tribunal going to its jurisdiction in making a finding of the kind made in circumstances where it may not have been obliged to make that finding.

12. As referred to above in these Reasons, those findings were open to it on the evidence and material before it and for which it gave reasons.

13. In relation to (c), Mr Turner submitted that the Tribunal wrongly made a finding that the Australian doctor did not confirm the diagnosis.

14. However, a fair reading of the reports from Dr Krishnan, referred to above in these Reasons, make it clear that Dr Krishnan had not confirmed the diagnosis of epilepsy. Indeed, the Tribunal expressed concern that Dr Krishnan was continuing to prescribe medication for a medical condition that he had not confirmed. Dr Krishnan’s letter most recent report, dated 12 October 2006, makes clear that he had no medical reports or investigations regarding the Applicant’s epilepsy.

15. In the circumstances the Tribunal’s finding that Dr Krishnan did not confirm the diagnosis was open to it on the material before it and for which it provided reasons.

16. Mr Turner also submitted that ground 3 alleges that the Tribunal relied on findings of the earlier constituted Refugee Review Tribunal. Such an allegation is not made out. The Tribunal quoted in its decision the entirety of the Claims and Evidence section of the earlier constituted Refugee Review Tribunal decision. That decision disclosed in detail the exchanges it had with the Applicant about his evidence and concerns it raised with the Applicant about his evidence and noted the Applicant’s responses. In the circumstances, a fair reading of the Tribunal’s decision does not suggest that the Tribunal failed to have regard to the Applicant’s oral evidence given to the earlier constituted Refugee Review Tribunal.

17. In any event, the Tribunal made clear that it was only matters referred to by the Tribunal in the Findings and Reasons section of its decision that constituted reasons or part of the reasons for its decision.

18. Accordingly, ground 3 is not made out.

Ground 4

1. Mr Turner acknowledged that an allegation of apprehended bias was serious.

2. Mr Turner submitted in his written submission that the Tribunal made adverse findings in relation to the Applicant’s credibility without giving him the opportunity to appear before it.

3. However, the Applicant was put on notice about the credibility of his claims by the Tribunal in its s.424A letter dated 20 September 2006 and to which the Applicant responded.

4. Accordingly, such an allegation is rejected.

5. Mr Turner also alleged that the Tribunal “cut and pasted” the first Tribunal’s decision without even changing the “first person” description of the Applicant’s questioning.

6. However, a fair reading of the Tribunal’s decision makes clear that it was intending to quote the entirety of the Claims and Evidence section of the earlier constituted Refugee Review Tribunal’s decision. There can be no fairer way than that to identify the oral claims that were made by the Applicant to the Tribunal. As referred to above in these Reasons, the Tribunal identified all the evidence and material provided by the Applicant with specificity.

7. Accordingly, such an allegation is rejected.

8. Mr Turner also submitted that findings of the earlier constituted Refugee Review Tribunal were adopted by the Tribunal recklessly.

9. Mr Turner identified the relevant paragraph from the earlier constituted Refugee Review Tribunal’s decision as follows:

   “I put to the Applicant that on 10 December 2003 (date of doctor’s document) the Applicant had already obtained a visa to travel to Australia. I reminded the Applicant that he had obtained a visa on 18 November 2003. I asked the Applicant why he had not obtained a letter form the doctor at that time, setting out his condition and the fact that he had been injured. The Applicant replied that when he asked the doctor he was told that he did not need a letter because the tablets concerned could be obtained in any country. I asked the Applicant if he had considered obtaining some medical evidence regarding the injuries he had suffered. He replied that he did not think of getting any of these documents when he was coming to Australia. I asked the Applicant why he did not think of obtaining this evidence. He stated that he was only thinking about going overseas for the safety of his life.”

10. It is clear that the matters referred to in the quoted paragraph above are not findings made by the earlier constituted Refugee Review Tribunal. They are merely the Tribunal’s record of matters it put to the Applicant about which it had concerns and in respect of which it noted the Applicant’s responses.

11. Moreover, a fair reading of the decision of the Tribunal does not purport to adopt those as findings. The Tribunal, as stated above in these Reasons, rejected comprehensively the Applicant’s claims about suffering from epilepsy as a result of a dog bite resulting from his visit to the father of his brother’s girlfriend. As referred to above in these Reasons, such a finding was open to it on the evidence and material before it and for which it provided reasons.

12. Accordingly, Mr Turner’s submission that the Tribunal recklessly adopted the finding of the earlier constituted Refugee Review Tribunal is rejected.

13. To the extent that Mr Turner submitted that the Tribunal should not have relied on the first Tribunal’s summary of evidence, the Tribunal did not do so. As referred to above in these Reasons, the Tribunal stated that it was only matters referred to by the Tribunal in the Findings and Reasons section of its decision that constituted reasons or part reasons for its decision.

14. As referred to above in these Reasons, the Tribunal identified with particularity all the evidence and material provided by the Applicant to it, both written and oral. Further, the Tribunal identified the evidence to which it did have regard which caused it to make the adverse credibility findings that it made. As referred to above in these Reasons, those findings were open to it on the evidence and material before it and for which it provided reasons.

15. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached the making of its decision other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Othersv Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115])

16. Otherwise, Mr Turner’s submissions relating to bias are more in the nature of a disagreement with the evaluation by the Tribunal of the evidence before it in concluding that it was not satisfied that the Applicant was himself attacked as a result of his brother’s relationship. As referred to above in these Reasons, that finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.

17. The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court, commenced by way of application filed on 18 December 2006, is dismissed with costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  11 December 2007