SZEYL v Minister for Immigration - [2008] FMCA 815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 815

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to put information to the applicant pursuant to s.424A – whether reasonable apprehension of bias on the part of the Tribunal – Tribunal put to the applicant information that was the reason or part of the reason for affirming the decision under review – Tribunal not required to conduct further investigations or inquiries – no reasonable apprehension of bias – no jurisdictional error – application dismissed.

Migration Act 1958, s. 424A, 427

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Applicant VEAL (2005) 224 CLR 88
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471
SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia

Applicant:

SZEYL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3338 of 2006

Judgment of:

Nicholls FM

Hearing date:

4 December 2007

Date of Last Submission:

21 December 2007

Delivered at:

Sydney

Delivered on:

20 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Eddy Neumann Lawyers

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The reference to the first respondent be amended to read “Minister for Immigration & Citizenship.”
The application made on 15 November 2006 and amended on 4 December 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3338 of 2006

SZEYL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is an application made on 15 November 2006 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“he Tribunal”) signed on 29 September 2006 and notified to the applicant on 19 October 2006 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Hearing Before the Court

At the hearing of this matter, Mr L Karp of Counsel appeared for the applicant, and Mr J Smith of Counsel appeared for the first respondent.
Leave was granted for the filing of an amended application in Court (no objection was taken). The application is in the following terms:
“The grounds of the Application are:
The Tribunal committed jurisdictional error by failing to comply with the requirements of section 424A of the Migration Act.
Particulars
(a) Failure to disclose in writing, as is required by that section, information that was a part of the reason for affirming the decision under review that being information that an anonymous informant had informed the Department of Immigration that the applicant’s family, ‘…live happily in Dakar (sic Dacca) unmolested by the Bangladeshi authorities.’”
There is a reasonable apprehension of bias.
Particulars
The Tribunal indicated that it would not make enquiries of the authors of a letter because it was certain that the authors would perjure themselves by verifying the truth of documents that the Tribunal thought were false.”
Relevant material before the Court is:
1.A bundle of relevant documents filed by the first respondent (the Court Book – “CB”), and marked as respondent’s Exhibit 2.
2.Respondent’s Exhibit 1, being a report of an allegation, received by the first respondent's Department, concerning the applicant.
3.Written submissions filed on behalf of the applicant.
4.Written submissions filed on behalf of the first respondent.
The Court also had the benefit of submissions by Counsel at the hearing.

Background

The material before the Court reveals the following background.
The applicant arrived in Australia on 19 December 1996 (CB 16.3), and applied (for a second time – see [11] below) for a protection visa on 5 February 2001 (CB 1 to CB 28). The applicant claimed that he was stateless (neither a citizen of Pakistan nor Bangladesh), and although born in Bangladesh, he claimed to be a “Bihari" or a “stranded Pakistani.” The applicant claimed that if he were to return to Bangladesh he would be detained and his life would be “at stake” because he was politically active in support of the Bihari community against the Bangladeshi government's discriminatory action against them, and because of his involvement in a political party (“SPGRC”). He also claimed to fear harm from others in Bangladesh opposed to the Biharis.
This application was refused by a delegate of the first respondent on 30 April 2001 (CB 29 to CB 37). The delegate was unable to accept that the applicant faced discrimination as a Bihari in Bangladesh (CB 36.8). Further, the delegate found that his claims were “very general, inconsistent and unsubstantiated,” (CB 37.1), and that even if the applicant’s claim of involvement in the SPGRC was accepted, the delegate had: “difficulty accepting that his profile or history of past activities would attract any sort of attention from the Bangladeshi authorities upon return.” (CB 37.2)
The delegate also had: “difficulty in accepting as plausible; the applicants [sic] claim of arrest and detention … and consider that the applicant has fabricated this claim for the purpose of enhancing his case for refugee status” (CB 37 .2). The delegate also did not: “accept as factual the assertion that the authorities” were looking for the applicant or that he would “be subjected to capital punishment by the authorities upon return” (CB 37.3).
The applicant sought review of this decision on 22 May 2001 (CB 38 to CB 41). He was assisted by the same migration agent who assisted him in his previous application for a protection visa.
In this regard, it appears that the applicant first lodged an application for a protection visa in January 1997. That application was refused (the “first” delegate’s decision). This decision was subsequently affirmed by the Tribunal. However, the Federal Court (by consent) set aside that decision because it would appear that the protection visa application itself was said to be “invalid” (see applicant’s submissions at paragraph [3] and CB 253.3).
From the material before the Court, it appears that the decision of the Tribunal currently before the Court is the third in a series of decisions involving this application for review (four differently constituted Tribunals have considered the applicant’s claims), as earlier decisions (made by the differently constituted Tribunals) in July 2002 and June 2004 were also remitted to the Tribunal for reconsideration. The decision that is currently before the Court is reproduced at CB 252 to CB 289.

The Tribunal Decision

The Tribunal found that the applicant was not “a witness of truth” (see CB 287.7, and for what this finding is based on, see CB 279.2 to CB 287.6). The Tribunal rejected the applicant’s claim to be a Bihari or a “stranded Pakistani” and found the applicant to be a citizen of Bangladesh (see CB 287.7). During the course of its consideration, the Tribunal gave weight to information provided by an anonymous informant that the applicant was a citizen of Bangladesh (relevant to Ground 1). It had also received from the applicant a letter dated 24 August 2006 (under cover of a letter from the applicant’s advisers dated 28 August 2006) signed by persons in Bangladesh who asserted that the applicant was a stranded Pakistani and an active member of the SPGRC. How the Tribunal dealt with this letter is relevant to Ground 2 below.

Ground 1

The applicant’s first ground asserts jurisdictional error on the part of the Tribunal in that it failed to comply with s.424A of the Act. The complaint is that information that was a part of the reason for affirming the decision under review, which is said to be information that an anonymous informant had informed the first respondent's Department that the applicant’s family: “live happily Dakar (sic Dacca) unmolested by the Bangladeshi authorities,” was not disclosed to the applicant in writing as required by section 424A(1).
The material relevant to the consideration of this ground is as follows.
Respondent’s Exhibit 1 is a copy of a report of an anonymous (telephone call) made to the first respondent’s Department. The details of the allegation are set out in the following terms (the “Allegation Received Report”):
“A Bangladeshi national (male) named [the applicant’s name] (43 years?) lives at [an address in Sydney]. He has lodged a Protection Visa application in Australia but is not really a refugee.
He came by plane from Bangladesh to A/a on an Indian passport in a false name which he bought in India. He arrived in A/a on 61/12/1996. He subsequently sent the passport back to India. The informant does not know the details of the Indian passport.
He claims that he and his family are residents of a refugee camp in Bangladesh because they are a minority who neither Pakistan nor Bangladesh accept as citizens. These claims are false as he and his family are Bangladeshi citizens and live happily in Dakar, unmolested by the Bangladeshi authorities.
He worked in Bahrain for many years and then went to India and purchased an Indian passport which he used to come to A/a. He then told DIMA a false story about arriving by boat and travelling from Darwin by bus.
The informant does not want to give [deleted] name because [deleted] is scared [the applicant] will harm [deleted].”
During the course of the review of the first delegate’s decision (14 June 2000) the Tribunal had, at that time, received an anonymous letter. Two copies of this letter were subsequently sent to the applicant’s then advisors on 6 February 2004 (see CB 170). The covering letter explained that one copy showed the text of the letter in full, and the other showed the text of the letter with an accompanying photograph of the applicant.
These copies are reproduced at CB 123 and CB 124. The complete version at CB 124 is in the following terms:
“[The applicant’s name] (Illegal Immigrant from Bangladesh)
Unmarried Age: about 35–40. (Actual age is 42 but I think he looks younger than his age and could be using a different age).. Has few deep cut marks on his arm (left or right don’t remember). Skin colour :medium fair colour. Thin long hair (not totally bald). Medium height about 5 –3” .. medium built.
The person flew to Australia by plane from Bangladesh around end of 1996 (perhaps in Oct/Nov). He sent the passport (which he used for entering into Australia) back to Bangladesh and claimed refugee status by falsely stating that he came by boat without a passport. He also falsely stated to Australian immigration that he entered Australia via Darwin (or Perth) .
He is currently living in
[an address in Sydney]
Tel no: [number given]
The unit he rented is in his name and I think the telephone is also in his name. He bought a car and got drivers license about three months back. He works in a furniture factory in Rosebery but I don't know the address.
He normally comes home late so the best time to get hold of him is after midnight. There are three other people who live with him in the unit.
I am enclosing a small photograph for your convenience.”
The applicant’s then advisers responded to the Tribunal (at that time differently constituted) on 2 March 2004 (CB 125 to CB 129). The advisers submitted that the letter “deserves no more attention that [sic] what it is: a ‘typical dob in letter’ motivated by malice.” Attached to the submission was a statutory declaration from the applicant who insisted that he had arrived in Australia by boat and stated that he did not “mix much with the Bangladeshi community in Australia” as he had “heard about false allegations made by the community for reasons of malice and jealousy.”
The applicant appeared at a hearing before the (last constituted Tribunal on 21 July 2006 (CB 185). In a letter following the hearing, and dated 25 July 2006, sent to the applicant’s migration adviser, the Tribunal invited him to comment on information (the “section 424A letter”). It contained the following relevant references (at CB 188.8):
“The fact that you speak Hindi is relevant to your application because it casts doubt on the submission that the combination of languages which you speak is characteristic of Biharis and indicative of the fact that you are, as you claim, a Bihari or a ‘stranded Pakistani’. The fact that you speak Hindi, and that an anonymous informant told the Department in 2000 that you had spent many years working in Bahrain before going to India where you purchased the false Indian passport on which you travelled to Australia, is likewise relevant to your application because it casts doubt on your claims that you spent all your life in Bangladesh before leaving that country on 30 November 1996 and travelling to Australia, where you arrived on 19 December 1996, that the Government of Bangladesh does not recognise you as a Bangladeshi citizen and that you were therefore unable to obtain a Bangladeshi passport. This information is also relevant to your overall credibility, that is, to whether you can be believed.”
Further, in that letter, at CB 195.5:
“As referred to at the hearing on 21 July 2006, the Department received information in 2000 to the effect that you were a citizen of Bangladesh and that you had arrived in Australia by air in October or November or December 1996. This information was obviously provided by a person or persons who knew you and your circumstances since not only did they know roughly when you had arrived in Australia and that you had used a false Indian passport (as you claim to have done) but they also provided a photograph of you and described the scars which you have on your left arm (which you confirmed you have in paragraph 11 of your satustory [sic] declaration dated 11 December 2003). The information provided by this person or persons is relevant because it likewise suggests that you are not telling the truth either in your evidence with regard to the manner in which you arrived in Australia or in the claims you have made in your applications for refugee status.”
In its decision record, where it reported on its “section 424A letter,” the Tribunal similarly noted (at CB 264.5):
“The Tribunal stated that the fact that the applicant spoke Hindi was relevant to his application because it casts doubt on the submission that the combination of languages which he spoke was characteristic of ‘Biharis’ and indicative of the fact that he was, as he claimed, a ‘Bihari’ or a ‘stranded Pakistani.’ The Tribunal stated that the fact that the Applicant spoke Hindi, and that an anonymous informant had told the Department in 2000 that the Applicant had spent many years working in Bahrain before going to India where he had purchased the false Indian passport on which he had travelled to Australia ...”
Further, at CB 272.4:
“The Tribunal noted that, as referred to at the hearing on 21 July 2006, the Department had received information in 2000 to the effect that the Applicant was a citizen of Bangladesh and that he had arrived in Australia by air in October or November or December 1996. The Tribunal noted that this information had obviously been provided by a person or persons who knew the Applicant and his circumstances since not only had they known roughly when the applicant had arrived in Australia and that he had used a false Indian passport (as he claimed to have done) but they had also provided a photograph of him and had described the scars which he had on his left arm (which the Applicant had confirmed he had in paragraph 11 of his statutory declaration dated 11 December 2003). The Tribunal stated that the information provided by this person or persons was relevant because it likewise suggested that the Applicant was not telling the truth either in his evidence with regard to the manner in which he had arrived in Australia or in the claims he had made in his applications for refugee status.”
In the course of setting out its reasoning in this matter the Tribunal also stated (at CB 284.2):
“As the Tribunal also noted in its section 424A letter, an anonymous informant told the Department in 2000 that the Applicant had spent many years working in Bahrain before going to India where he had purchased the false Indian passport on which he had travelled to Australia. The informant said that the applicant was a citizen of Bangladesh and that he had arrived in Australia by air in October or November or December 1996. As the Tribunal noted, while I would not normally give much weight to information provided by an anonymous informant, I consider that this information was obviously provided by a person or persons who knew the Applicant and his circumstances since not only did they know roughly when the Applicant arrived in Australia and that he had used a false Indian passport (as he claims to have done) but they also provided a photograph of him and described the scars which he had on his left arm (which the Applicant confirmed he had in paragraph 11 of his statutory declaration dated 11 December 2003).”
Further, at CB 285.3 the Tribunal said:
“As I have said, if I attribute weight to the information provided by the anonymous informant or informants it is because it is apparent that the person or persons in question know the Applicant and because the Applicant’s own evidence is so unsatisfactory. The Applicant has not provided any credible explanation as to why such persons would be motivated by malice to make false allegations against him. I remain of the view that the information provided by this person or persons casts doubt on the Applicant’s claims that he spent all his life in Bangladesh before leaving that country on 30 November 1996 and travelling to Australia, where he arrived on 19 December 1996, that the Government of Bangladesh does not recognise him as a Bangladeshi citizen and that he is therefore unable to obtain a Bangladeshi passport. I consider that the information suggests that the Applicant is not telling the truth either in his evidence with regard to the manner in which he arrived in Australia or in the claims he has made in his application for refugee status.”
Even further at CB 287.9:
“Finally, as indicated above, I also give weight to the information provided by an anonymous informant that the Applicant is a citizen of Bangladesh because, as I have said, I consider that the information received by the Department was obviously provided by a person or persons who knew the Applicant and his circumstances and because the Applicant’s own evidence is so unsatisfactory. As noted above, the Applicant has not provided any credible explanation as to why such persons would be motivated by malice to make false allegations against him.”
Mr Karp’s submission was that while the Tribunal sent the applicant a “section 424A letter,” which made reference to the anonymous information, the letter did not disclose in its terms any reference to the information received as part of the anonymous communication that is, the applicant's family “live happily in Dhaka unmolested by the Bangladeshi authorities.”

Mr Karp relied on what was said in its SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 per Moore J at [18] [ii]:
“... the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 ; [[2001] FCA 56] at 218 [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; irrespective of whether it is reliable or has a sound factual basis: Win, at [19]–[22] …”
He submitted that that part of the anonymous allegation (“he and his family are Bangladeshi citizens and live happily in Dakar, unmolested by the Bangladeshi authorities”) is information for the purposes of s.424A.
The Court was taken to the Tribunal’s “Findings and Reasons” to submit that where the Tribunal referred to the anonymous information (at CB 284.2, CB 285.4 and CB 287.9) (see[24] to [26] above) that the Tribunal was referring to, and therefore relied on, the information in the “Allegation Received Report” as a whole. That while the Tribunal did not subsequently cite certain information, it obviously considered that all of the informant’s information was entirely reliable. On this basis, therefore, the fact that the Tribunal so considered the entirety of the anonymous information to be reliable, meant that it had to disclose particulars of that information in writing pursuant to s.424A.
Mr Karp submitted that, with reference to the Tribunal’s decision record, it clearly relied on this information which was obtained from a third party. That in the current case, the circumstances were even “beyond” the circumstances before the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 because in that case the applicant was at least informed “orally” of what the witness had said, whereas in the current case, the information received anonymously that the applicant and “his family are Bangladeshi citizens and live happily in Dakar, unmolested by the Bangladeshi authorities” was never put to the applicant, and certainly not in the Tribunal’s “section 424A letter.”
The elements therefore of Mr Karp’s submission are that the Tribunal considered all of the anonymous information as being pertinent (that is, derived from its reasons), that the information that the applicant and “his family are Bangladeshi citizens and live happily in Dakar, unmolested by the Bangladeshi authorities” was not put to the applicant in the manner required by s.424A(1) of the Act, even though it was a part of the reason for affirming the decision under review.
Mr Smith’s response was that there was no obligation pursuant to s.424A(1) in respect of the “particular information” focused on now by the applicant, namely that “he and his family are Bangladeshi citizens and live happily in Dakar, unmolested by the Bangladeshi authorities.” Mr Smith’s submission was that paragraph [17] in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) forms part of the High Court’s reasoning for its decision in that case, and that this Court should therefore follow what was said SZBYR in preference to what was relevantly said in SZEEU at [182], and to a lesser extent, at [215]. The submission was that what was said by the High Court in SZBYR at [21] is supported by what the Court said [17] and [18]. In SZBYR at [21] the Court, in concluding its analysis in the preceding paragraphs, said:
“The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.”
The submission was that [17] of SZBYR directs the focus of the relevant consideration of s.424A to the Tribunal exercising a power of review necessary in terms of the statutory obligation set out in s.65 and the criteria for the grant of a protection visa (s.36). The emphasis on “would be” is not on how the Tribunal ultimately made its decision (with reference to the applicant’s submission and reliance on the Tribunal’s decision record) but on the nature of the material in question and how it relates to the satisfaction of the relevant criteria for the grant (relevantly in this case) of a protection visa.
When viewed in that way, what is relevant is the applicant’s claim that he was not a Bangladeshi citizen but a Bihari, and that he was a member of the SPGRC. The submission was that the question of whether or not his family was harassed by Bangladeshi authorities does not, on its face, determine whether the applicant was a Bangladeshi citizen or a member of the SPGRC, nor whether the applicant and “his family are Bangladeshi citizens and live happily in Dakar, unmolested by the Bangladeshi authorities.”
This submission was that the actual matter relevant to the Tribunal’s decision was whether or not the applicant was a Bangladeshi citizen. As the Tribunal ultimately found that he was a Bangladeshi citizen, his fear of persecution was not made out.
Mr Smith’s submission was, with regard to s.36 of the Act, that the reason or part of the reason for affirming the decision under review for the purposes of s.424A(1) needs to be considered. In this light, while it is possible to refer to the Tribunal’s decision record, the relevance is to confirm, or not confirm, what would be, or would not be, the reason for affirming the decision.
He also contrasted the circumstances in this case from those found in APPLICANT VEAL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 224 CLR 88, a case where a “dob in letter” was referred to in the Tribunal’s reasons, and the Tribunal specifically stated that it did not act on the information contained in that letter. The Court said (at [12]): “That is reason enough to conclude that s 424A was not engaged.”

Consideration

I agree with Mr Smith that in considering this ground, this Court should be instructed by what the High Court relevantly said in SZBYR.
1)In this regard I note relevantly (at [15]):
“Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.”
2)Further, at [17]:
“The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.”
3)And even further at [17]:
“… the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case.”
As was the circumstance in SZBYR the applicant in the current case sought a protection visa, the relevant, and appropriate, criterion of which was to be found in s.36 of the Act. The information caught by s.424A(1) therefore, is information that: “the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.” That is, the “reason or part of the reason” for affirming the decision under review was that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.
In the current case, the applicant claimed that Australia owed him protection under the Refugees Convention because he is a “Bihari” or a “stranded Pakistani.” The applicant claimed that although he was born in Bangladesh, he is “stateless,” and because of his Bihari status and his active support of a party promoting the interests of Biharis in Bangladesh (SPGRC) he would not only face discrimination and harassment in Bangladesh as a Bihari, but would be subject to serious harm from the Bangledeshi authorities and others. That these are the applicant’s claims is not in dispute. (See, for example, paragraphs [6] to [9] of the applicant’s written submissions).
The definition of “refugee” is derived from Article 1A(2) of the Refugees Convention. One of the key elements of that definition is that the applicant must be outside the country of nationality. The threshold issue to be determined by the Tribunal, therefore, is whether an applicant is a national of the country in respect of which the persecution is claimed.
In this case, however, the applicant does not claim to be a national of the country of claimed persecution. In fact, quite to the contrary, his fear of persecution is said to arise because the authorities of that country do not recognise him as a citizen and perceive to be a “stranded Pakistani” whom the Bangledeshi authorities seek to harass and evict from Bangladesh.
In this case, therefore, the issue of the applicant’s nationality is of far greater and central importance to determining the review than perhaps in many other cases involving persons seeking protection in Australia.
In the current case, therefore, the question to be determined is what would be the reason (“determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case” – SZBYR at [17]) for affirming the decision under review. In my view, when seen in this light, the obligations in s.424A(1) are engaged on the facts of this case in respect of information that would be the reason or part of the reason informing a finding on the applicant’s nationality.
In my view, s.424A was enlivened in the circumstances of the current case, to the extent that the Tribunal was obliged to put to the applicant, in writing, information (which did not fall within any category of exception in s.424A(3) of the Act) which went to the issue of his claimed lack of nationality. The Tribunal plainly recognised the central, and threshold, importance of this issue at the hearing that it conducted with the applicant on 21 July 2006. The applicant has not put any evidence before the Court to contradict the Tribunal’s own account of what occurred at the hearing.
In this regard, the Tribunal’s report of what occurred at the hearing reveals that at the beginning of the hearing, after listening to the applicant’s representative summarise written submissions (at CB 262.3), the Tribunal immediately went to the central and threshold issue in determining this review. That is, whether the applicant was, or was not, a Bangledeshi national. The Tribunal reported (at CB 262.4):
“I asked the Applicant if he claimed to be stateless, that is, that he was a citizen neither of Bangladesh nor of Pakistan.”
After addressing issues relating to his claimed lack of citizenship (and his medical condition) the Tribunal reports that it squarely put to the applicant concerns about his credibility (at CB 262.9):
“I outlined to the Applicant the problems I had with his evidence. (These problems are set out in the letter which the Tribunal sent to the Applicant after the hearing as required by law, referred to below.)”
Further, the Tribunal reports (at CB 263.3):
“I indicated that I considered that the problems with the Applicant’s evidence went to his overall credibility, including whether he could be believed in regard to his claim that he was a ‘Bihari’.”
I should also note that the applicant’s representative appeared to concede that there were clear inconsistencies in the applicant’s evidence (at CB 263.8):
“The Applicant’s representative said that there were clearly inconsistencies in the evidence but there were many possible explanations for the inconsistencies.”
The Tribunal did write to the applicant pursuant to s.424A. Its letter of 25 July 2006 is reproduced at CB 188 to CB 197. A plain reading of the letter reveals that the Tribunal gave to the applicant, for comment, ten groupings of information that it considered would be the reason or part of the reason for affirming the decision under review.
The applicant now relies on the argument that although the Tribunal made reference in its letter, in two places, to the information received from the anonymous informant (CB 188.8 and CB 195.5), it made no reference to information also received from that informant that the applicant’s family “live happily in Dakar, unmolested by the Bangladeshi authorities.”
In my view, there is a plain reason for the Tribunal not having done so, and not being obliged to do so, for the purposes of s.424A(1). That the applicant and his family lived: “happily in Dakar, unmolested by the Bangladeshi authorities” was not information that would be the reason or part of the reason for affirming the decision under review. Nor was it considered so by the Tribunal. The information that would be the reason for affirming the decision under review, and which was considered to be so by the Tribunal, was information relevant to the disposition of the applicant’s claim to be stateless, and not to be a citizen of Bangladesh. In the circumstances of this case, what “would be” the reason for affirming the decision under review was a finding that the applicant was in fact not stateless, and was a citizen of Bangladesh. Once that finding would be made, all of the other claims made by the applicant (his claimed political involvement, et al) fall away.
The information from the anonymous informant, which was a part of this reason, was put to the applicant. That is, that the applicant worked in Bahrain for many years, worked in India where he purchased a “false Indian passport,” which he used to travel to Australia, and that he was a citizen of Bangladesh when he arrived in Australia in 1996. That the applicant and his family lived “happily in Dakar, unmolested by the Bangladeshi authorities” is not part of the issue as to whether the applicant is a Bangladeshi national or not. In my view, therefore, s.424A(1) was not enlivened in relation to the particular relied on by the applicant now. This ground therefore does not succeed on this basis.
Further, that this particular information would not be the reason, or part of the reason for affirming the decision under review can be confirmed with reference to the Tribunal’s decision record. Any plain reading of the Tribunal’s analysis reveals that its ultimate conclusion, that is, the fulcrum on which its decision to affirm the delegate’s decision turned, was that on all the evidence before it, the Tribunal found that the applicant was a citizen of Bangladesh.
Towards the end of its decision record, the Tribunal states (at CB 288.1):
“For the reasons given above, I find on the evidence before me that the Applicant is a citizen of Bangladesh. I do not accept that the Government of Bangladesh does not recognise him as a citizen of Bangladesh, that he is unable to obtain a Bangladeshi passport or that he is stateless, as he claims.”
This then led the Tribunal, logically, to the following (at CB 288.5):
“Since for reasons given above I do not accept that the Applicant is a stateless ‘Bihari’ or a ‘stranded Pakistani’, as he claims, I do not accept that there is a real chance that he will be discriminated against, harassed or otherwise persecuted for that reason if he returns to Bangladesh now or in the reasonably foreseeable future, whether that claim is regarded as falling under the Convention ground of race, nationality or membership of a particular social group.”
This inevitably led to the conclusion (at CB 288.9):
“For the reasons given above I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.”
Mr Karp emphasised in submissions that where the Tribunal made reference in its reasoning to the information provided by the anonymous informant, and where it said that it gave weight to this information, it was referring to all of the information provided by that informant including the information that the applicant’s family lived: “happily in Dakar, unmolested by the Bangladeshi authorities” and that this information, therefore, should have been put to the applicant in the Tribunal’s section 424A letter.
I note what, relevantly, was said by the High Court in SZBYR at [21] and [22]:
“21 … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. That being so, this case does not require this Court to address the differences in opinion in the Federal Court concerning the ‘unbundling’ of Tribunal reasoning.” [Compare VAF v Minister for Immigration and Multicultural and Indigenous Affairs 206 ALR 471 with SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214)
“22. Once the limited scope of s 424A is appreciated, and once the proper meaning of the word ‘reason’ in s 424A(1)(a) is discerned, the apparent need for ‘unbundling’ is correspondingly reduced. The respondent Minister’s concern about ‘minor’ or ‘unimportant’ matters engaging s 424A is largely to be resolved by the proper application of s 424A itself, not by any extra-statutory process of ‘unbundling’.”
To the extent, therefore, that the applicant’s arguments in support of this ground rely on this Court “unbundling” the Tribunal’s reasoning, then the need for such action is “reduced” and the matters engaging s.424A in this case, in my view, can be resolved by a “proper application of s 424A” as set out above.
But even if the Court were to engage in such a process as invited to do so by Mr Karp, I still cannot see that the applicant would have succeeded in this ground.
Mr Karp took the Court to three parts of the Tribunal’s reasoning where it referred to the “anonymous informant.” These were at CB 284.2, CB 285.3 and CB 287.9 (as reproduced above at [24], [25], [26]).
Mr Karp submitted that where the Tribuanl made reference to the anonymous informant in its reasoning, these were references to all of the information obtained from the anonymous informant. (I should just note that the letters reproduced at CB 123 and CB 124 make no reference to the applicant and his family living “happily in Dakar, unmolested by the Bangladeshi authorities.” The reference is contained in the “Allegation Received Report” put before this Court as RE1).
In my view, however, and certainly on a holistic reading of the Tribunal’s record, that information was not part of the information relevant to the issue of the applicant’s citizenship.
Mr Karp emphasised that at CB 284.2 (see [24] above), the Tribunal referred to all of the information obtained by the anonymous informant when it stated:
“As the Tribunal noted, while I would not normally give much weight to information provided by an anonymous informant, I consider that this information was obviously provided by a person or persons who knew the Applicant and his circumstances since not only did they know roughly when the Applicant arrived in Australia and that he had used a false Indian passport (as he claims to have done) but they also provided a photograph of him and described the scars which he had on his left arm (which the Applicant confirmed he had in paragraph 11 of his statutory declaration dated 11 December 2003).”
While the Tribunal spoke generally about not giving much weight to information provided anonymously, and spoke about information provided by a person who knew the applicant and his circumstances, in my view, what immediately precedes this reference makes it clear that the information which the Tribunal considered to be a part of the reason for its decision was information given by the anonymous informant that the applicant had spent many years working in Bahrain before going to India and where he had purchased a false Indian passport on which he had travelled to Australia. Further, that the informant had said that the applicant was a citizen of Bangladesh and had arrived in Australia in late 1996. The Tribunal’s subsequent references to the weight that it would give to such information, in my view, needs to be read in context with what immediately precedes it. That is, the information provided anonymously that went to the issue of the applicant’s nationality.

Mr Karp took the Court to what is set out at CB 285.3 (see [25] above) and again submitted that this contained a reference to all of the information provided by the anonymous informant. I am not persuaded that this is the case. This part of the Tribunal’s reasoning needs to be read with what preceded it, especially at CB 285.4 (“… as I have said if I attribute weight …”), and again, is clearly focussed on the applicant’s nationality and his travel to Australia:
“I remain of the view that the information provided by this person or persons casts doubt on the Applicant’s claims that he spent all his life in Bangladesh before leaving that country on 30 November 1996 and travelling to Australia, where he arrived on 19 December 1996, that the Government of Bangladesh does not recognise him as a Bangladeshi citizen and that he is therefore unable to obtain a Bangladeshi passport.”
When the Tribunal then goes on to say (at CB 285.5): “I consider that the information suggests that the Applicant is not telling the truth …” This is said in circumstances as being relevant to: “…either in his evidence with regard to the manner in which he arrived in Australia or in the claims he has made in his applications for refugee status.”
Again, in context, and when read holistically, it is the information relevant to the applicant’s claim not to be a Bangladeshi citizen that is the central issue under consideration, and it is the information that is provided anonymously that goes to this issue, that is a part of the reason for the decision.
Similarly, this is also the case with what appears at CB 287.9 (see [26]), which is the third part of the reasoning to which Mr Karp took the Court. In my view, in that part of the Tribunal’s decision record, even read on its own, let alone in context, again shows that the Tribunal was referring to information received anonymously (and it must be said amongst many other pieces of information) that went to the issue of the applicant’s nationality. Plainly, the Tribunal states (at CB 287.9):
“… as indicated above, I also give weight to the information provided by an anonymous informant that the Applicant is a citizen of Bangladesh because …”
What immediately precedes this (at CB 287.7) is that the Tribunal did not accept that the applicant was a Bihari or a “stranded Pakistani.”
Even if one were to focus solely on the Tribunal’s reasons (as essentially invited to do so by Mr Karp) the applicant’s case is not made out. The Tribunal relied on information (in part provided anonymously) that the applicant was a Bangladeshi citizen, had obtained an Indian passport using a false name and had used this passport to enter Australia, as part of its reason for affirming the decision under review. This information was put to the applicant, as was information as to the anonymous informant’s credibility pursuant to s.424A(1). I cannot see that the Tribunal’s reason for decision (even accepting the approach urged by Mr Karp, and putting to one side what was said in SZBYR) relied on all the information provided by the anonymous informant. The applicant’s complaint therefore does not succeed even on this basis.
I should note that during the course of the hearing Mr Karp made reference to a Full Federal Court decision (which had been recently considered) and was of the view that it may be provide some assistance in relation to this issue. I granted leave for the parties to make further submissions in this regard. However, the Court was subsequently advised that the authority in mind (SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198) was not relevant to any issue arising in the present case.

Ground 2

Ground 2 in the amended application asserts that there is a reasonable apprehension of bias on the part of the Tribunal in that it indicated that it would not make inquiries of the authors of a letter put before it by the applicant because it said it was “certain that the authors would perjure themselves by verifying the truth of documents that the Tribunal thought were false.” (This is the ground as stated in the amended application).
The applicant’s complaint can best be understood with reference to the following.
By way of letter dated 28 August 2006 the applicant’s representatives wrote to the Tribunal (CB 214 to CB 215) and amongst other things enclosed a letter signed by two persons in Bangladesh. The adviser’s letter, in relevant parts, states as follows:
“We now enclose the following original documents obtained by and sent to the applicant by his uncle:
Letter for Mr Noor Mohammod, District Relief and Rehabilitation Officer, from the Deputy Commissioner of the Dhaka District, telephone 71113404 and co-signed by MD Abbas Chairman of the Non-Local Relief Committee in Dhaka;
…
In support of the above, we ask the Tribunal note that officers at 1 above provide their telephone number and mailing address and the applicant has no objection to them being contacted directly by the Tribunal.
In addition we note that the telephone number for District Relief and Rehabilitation Officer, from the Deputy Commissioner of the Dhaka District corresponds with the following list found on the internet at the site shown
…”
A copy of that letter is reproduced at CB 219:
“TO WHOM IT MAY CONCERN
This is to certify that Mr [the applicant’s name], Son of Late [the applicant’s parents’ names] of Hut No 121, Sector-11, Geneva Camp, Mohammadpur, Dhaka-1207, Bangladesh is a Stranded Pakistani and he was also active member of Stranded Pakistani Movement (SPGRC). According to our record he was the residence of Hut No. 121, Sector No. 11, Geneva Camp, Mohammadpur, Dhaka-1207, Bangladesh. Here mentioned that earlier the Stranded Pakistanis were operated by the Red Cross. After that they were under the shelter of Red Crescent Society of Bangladesh. Presently all the Stranded Pakistanis are under the supervision of D.C. (Deputy Commissioner) of the relevant District and we officially take care of the Stranded Pakistanis on behalf of D.C.
I wish him all success in life.”
Appearing at the foot of the letter are two signatures and two signature blocks.
This submission (of 28 August 2006) and the enclosed letter was made after the hearing before the Tribunal, and after receipt of the Tribunal’s section 424A letter. Also included in that submission was one of the applicant’s responses to the Tribunal’s section 424A letter of 25 July 2006 (CB 216 to CB 217).
The applicant’s representatives made two responses to the Tribunal’s section 424A letter. That of 28 August 2006 and, following an extension of time granted by the Tribunal, more detailed submissions on 14 September 2006 (see CB 221 to CB 237).
The Tribunal made extensive reference to the applicant’s responses in its decision record (see CB 272.8 to CB 278.4). In its “Findings and Reasons” the Tribunal (relevant to consideration of this ground) stated as follows (CB 285.8):
“As referred to above, under cover of a letter dated 28 August 2006 the Applicant’s current representatives produced to the Tribunal the original of a letter signed on 24 August 2006 by Md Abbas, Chairman, Non-Local’s Relief Committee, Section No-10/A, Mirpur Pallabi, Dhaka, and Noor Mohammadi, District Relief & Rehabilitation Officer, Dhaka, certifying that the Applicant was a ‘Stranded Pakistani’ and that he was also an active member of the ‘Stranded Pakistani Movement (SPGRC)’. The Applicant’s representatives noted that the signatories to the letter which they had produced had both given their telephone numbers and that the telephone number given by the District Relief & Rehabilitation Officer corresponded to a telephone number for that office which they had found in a list on the Internet. They said that the Applicant had no objection to the Tribunal contacting the signatories directly but I have not done so because I had no doubt that the signatories would confirm that they had indeed signed the letter in question.”
Mr Karp conceded that in their covering submissions (enclosing the relevant letter) the applicant’s representatives did not directly invite or request the Tribunal to contact the signatories. But did quite clearly suggest that the Tribunal should do so if it wanted to. Mr Karp submitted that the Tribunal did have discretion to do so pursuant to s.427 of the Act, but was not compelled to do so.
However, it is the way the Tribunal dealt with this letter that, he submitted, would lead the fair-minded lay person, properly informed, to reasonably apprehend that the Tribunal did not bring an impartial mind to the relevant question to be decided.
He also submitted that the letter was corroborative of the applicant’s claims to be a stranded Pakistani in Bangladesh. Yet the Tribunal pre-judged the evidence given by these two signatories to the letter, which on its face, he said, was credible, and corroborated the applicant’s claims to be a Bihari. Instead of investigating this, the Tribunal dealt with the letter by saying that it had “no doubt that the signatories would confirm that they had indeed signed the letter in question.” Mr Karp said that this meant that they would confirm information that the Tribunal had already decided was false. In other words, they would “perjure themselves.”
Mr Karp submitted that to simply say that the signatories would confirm that they had signed the letters ignores “the fact” that the Tribunal member could have, if he wanted to, asked the signatories “a great many more questions,” and investigated whether the information contained in the letters was correct. To accept that these two people had signed the letters, and yet to reject the content of the letters, and to have done so in, what he described as a “fairly cynical observation” would allow a reasonable observer following the Tribunal’s reasoning to apprehend that the Tribunal member had already decided the matter before considering whether he should make a further inquiry of these two signatories.
The argument was that that the way the Tribunal dealt with this letter, in this fashion, stands out in contrast to the very comprehensive and detailed way that the Tribunal dealt with each and every other aspect of the applicant’s evidence before it, and that bearing this in mind, the hypothetical fair-minded observer would apprehend that with “this last piece of information,” which on its face was corroborative of the applicant’s claims, that the Tribunal dealt with it in such a fashion.
Mr Smith submitted that to the extent that the applicant’s argument asserts that the Tribunal should have had regard (by way of making investigation) to evidence not before it beyond the evidence contained on the face of the letters, then such an argument is inconsistent with the principles derived from Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, a case upon which Mr Karp also relied.
Mr Smith’s submission was that the Tribunal’s statement that it had not contacted the signatories to the letter must be seen in context of the Tribunal’s comprehensive consideration of all of the evidence that had been put before it.

Consideration

I agree with Mr Smith. By the time it came to conduct its hearing on 21 July 2006 the Tribunal had before it a large amount of material and evidence provided by the applicant himself and through his representatives (including documentary evidence other than the letter in question from Bangladesh). The applicant had appeared before the Tribunal (as differently and variously constituted earlier) and his representatives had made a number of submissions.
The Tribunal itself noted in its decision record (see CB 255.9) that it had been given the Department’s file, it had the three Tribunal files relating to the three earlier considerations by earlier differently constituted Tribunals, and in particular that it had “the tapes of the hearings before the first … the second … and before the third Tribunal …” At CB 256.3, the Tribunal sets out the sources of the applicant’s evidence before it, including oral and written statements and to submissions made on his behalf by various representatives.
The Tribunal also took note of documentary evidence provided by the applicant, and of course, the anonymous information received by the Minister’s Department. After making reference at the hearing to the latest set of written submissions received up until that time, the Tribunal confirmed with the applicant the issue at the heart of his claims, namely that he was stateless, and was not a citizen of Bangladesh. With all this material in mind, the Tribunal said that it “outlined to the applicant the problems [it] had with his evidence” (CB 262.9). Its account of the hearing reveals that it discussed these problems with the applicant at the hearing. Its letter of 25 July 2006 (the section 424A letter) gave the applicant a further opportunity to address the concerns held by the Tribunal.
No complaint is made by the applicant in connection to the allegation of apprehended bias in relation to the Tribunal putting to him, both at the hearing and in its section 424A letter, the fairly strong view that it had formed at that time as to the applicant’s credibility. Further, as Mr Smith correctly submitted, in my view, it was quite proper for the Tribunal to have put these concerns to the applicant on those occasions in order to afford the applicant a fair hearing, and to comply with its statutory obligations regarding procedural fairness.
The relevant authorities (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102), and indeed even authorities relating to actual bias (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]), require the Tribunal to have an open mind, and to bring an open, or impartial, mind to the relevant question, which in this case was whether Australia owed protection obligations to the applicant.
Mr Karp submitted that the Tribunal decision is “extremely detailed,” and that the Tribunal member had “examined the evidence minutely,” and provided “articulate reasons.” (This was also used in part to base an assertion subsequently abandoned at the hearing before the Court in light of what was contained in RE1). Nonetheless, I agree with Mr Karp’s observations as to these characteristics obvious in the Tribunal’s decision record.
What is clear, therefore, is that by the time the Tribunal was presented with this letter from Pakistan (at a time after the hearing, and indeed, after the section 424A letter had been sent), the Tribunal had clearly considered the great range of evidence and material before it and formed a preliminary view that the applicant’s credibility was in question and, even on the applicant’s own submissions (albeit put for a different reason than to praise the Tribunal), had given lengthy and detailed consideration to this material.
First, the well-informed lay observer would not, in my view, reasonably apprehend the Tribunal to be biased based on expressing a view as to the applicant’s credibility at the time that it did (particularly, as the Tribunal was discharging its statutory obligations in so doing.)
Second, the Tribunal is not required to conduct further investigation. The obligation on the Tribunal is to consider the applicant’s claims and the various aspects of his claims. It is clear that the Tribunal had regard to the applicant’s evidence. In my view there was no obligation in these circumstances for the Tribunal to conduct further inquiries of the two signatories of the letter, and nor, for that matter, was it submitted by the applicant that bias would be reasonably apprehended from the failure to do so.
What is submitted, by the applicant, as giving rise to this apprehension is that if the Tribunal had made further inquiries, the signatories would have confirmed the information that the Tribunal had previously decided was false. In that regard that they would “perjure” themselves. The apprehension of bias is therefore said to be based on a prejudgment of the evidence which was available to be given by the signatories to the letter.
To the extent, therefore, that this submission somehow seeks to imply that a failure to make certain inquires is itself a factor, either on its own or in combination with other factors, an element such as to enable the well informed lay observer to reasonably apprehend bias, then such an argument must be rejected, as no such obligation arose in the circumstances of this case. It is not for the Tribunal to conduct further inquiries simply to see what else the signatories to the letter may say.
In my view, the Tribunal ultimately made up its mind at the conclusion of a very long, comprehensive and detailed process of analysis, and after affording an opportunity to the applicant as to the issue of whether the applicant was owed protection obligations by Australia. The Tribunal found that the applicant was a citizen of Bangladesh, contrary to the central and threshold claim made by the applicant. This is a finding that was plainly open to it to make on the material before it, and for which it gave detailed and comprehensive reasons. The reasons were properly exposed to the applicant during the course of the review and in respect of which he and his advisers made submissions and provided further evidence. The relevant letter in question is but one piece of the considerable body of evidence before the Tribunal, and a piece provided towards the end of the process of review.
The Tribunal rejected the applicant’s claim to be a “stranded Pakistani” or Bihari, and his claim that he was not a Bangladeshi citizen. It did so for all the many reasons that it gave in its analysis. That the Tribunal then said, in respect of this one piece of evidence, which had been given towards the end of the process of review, that it did not make further inquiry (which, in any event, it was not obliged to do and which in itself does not constitute an element of a reasonable apprehension of bias), because it had “no doubt that the signatories would confirm that they had indeed signed the letter in question,” does not, in all the circumstances, indicate that it had brought a closed mind, that that it did not have an impartial or open mind, on the resolution of the question to be decided.
That question was whether Australia owed protection obligations to the applicant as it was said by the applicant to arise because he was a Bihari, and not a Bangladeshi citizen. Even if the Tribunal were to have allowed itself a “cynical” observation, in all of these circumstances, that would not amount to a reasonable apprehension of bias. In any event, I do not regard the Tribunal’s comment as cynical in that sense. What I understood the Tribunal to be saying was that when it came to make its final consideration it plainly had rejected the applicant’s claim (it must be remembered after a lengthy process of review) to be a Bihari and not to be a Bangladeshi citizen. In these circumstances, and where it was not required to conduct any further inquiry, that the “signatories would confirm that they had indeed signed the letter in question,” does not reveal bias on its part. But even in circumstances where they would have acknowledged that they had signed the letter, the matters asserted in the letter, in support of the applicant’s claims, had already been rejected.
In my view, there is a distinction to be drawn from the principles set out in Re Refugee Review Tribunal; Ex parte H relating to whether a well-informed lay observer may reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution to the question to be decided (remembering that the question is whether Australia owes protection obligations to the applicant), between keeping an open mind and this Tribunal’s rejection of one piece of evidence (even though it had no doubt that those providing the evidence did sign the letter), because for many other reasons it had already rejected what had been stated in that letter, that is that the applicant was a Bihari and not a Bangladeshi national.

The Tribunal’s statement does not reveal a closed mind or a mind that was not impartial in resolving the question to be decided. This ground also does not succeed.

Conclusion

The two grounds pleaded on behalf of the applicant, who had the benefit of legal advice before the Court, are not made out. The applicant has not been able to establish jurisdictional error on the part of the Tribunal, and for this reason, this application is dismissed.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 20 June 2008

Amendments

From paragraph 55 of the judgment, final sentence, the word “not” is removed.