SZKIN v Minister for Immigration - [2007] FMCA 667

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 667

MIGRATION – Review of Refugee Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Turkey – whether the Tribunal erred in failing to consider what the position would be if the Tribunal was wrong in rejecting a hospital certificate as a fabrication considered – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) by rejecting a request for a further hearing considered – whether the Tribunal’s manner of proceeding gives rise to an apprehension of bias considered –whether the Tribunal failed to deal with an element of the applicant’s claims considered – jurisdictional error established.

Migration Act 1958 (Cth), ss.424A, 425, 427, 430

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAP v Minister for Immigration [2005] HCA 24
SZDVB v Minister for Immigration [2004] FMCA 571
WAEE v Minister for Immigration (2003) 75 ALD 630
Win v Minister for Immigration [2001] FCA 56

Applicant:

SZKIN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG831 of 2007

Judgment of:

Driver FM

Hearing date:

7 May 2007

Delivered at:

Sydney

Delivered on:

31 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Hawthorne, Cuppaidge & Badgery

Counsel for the Respondents:

Ms B Nolan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal signed on 12 February 2007.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG831 of 2007

SZKIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 12 February 2007 and sent to the applicant by letter dated the same day, presumably on the basis that the applicant was held in immigration detention. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The background facts concerning the applicant’s arrival in Australia, his protection visa claims and the Tribunal decision on them are well summarised in written submissions relied upon by the parties. The following statement of background facts is taken from paragraphs 1 to 6 of the applicant’s outline of written submissions filed on 30 April 2007 and paragraphs 2 to 17 of the Minister’s submissions filed on 4 May 2007.
The applicant, who is an ethnic Kurd and a citizen of Turkey, arrived in Australia on 9 November 2006 on a false passport (court book “CB” 15). He was apparently apprehended at Sydney Airport at which time he stated that he escaped from Turkey to seek protection in Australia (CB 33). He was incarcerated at Villawood.
His application for a protection visa was made on 13 November 2007 and lodged on 20 November 2006. His solicitor’s submission to the Tribunal on 22 January 2007 refers to a statutory declaration dated

16 November 2006 (at CB 88-9), and indeed the delegate’s decision suggests that a detailed statement of claims was lodged. Unfortunately this was not reproduced in the court book, but I accepted a copy as an exhibit[1].
[1] Exhibit A1
It would appear from the contents of the delegate’s decision and the solicitor’s submission that the applicant claimed to have participated in rallies organised by the Kurdish Democratic Peoples Party (HADEP) and to have provided financial support for that organisation. He claimed to have been detained for one day in 1993, 2 days in 1995, for 6 days in 2004 during Nevruz (Kurdish New Year) celebrations and for four days in February 2006. On this last occasion he claimed that police detained him at his jewellery workshop and took him to their headquarters in Istanbul. There he was blindfolded, tortured and interrogated about his involvement in and knowledge of the Kurdistan Workers’ Party (“the PKK”). After four days he was driven to a village outside Istanbul. He went to a medical centre in Istanbul and was treated there for three days. (CB 38.2, 39.5).
After his recovery he worked, apparently unmolested, at his jewellery shop until May 2006 when he went to Bangkok to purchase materials for his business. He returned to Turkey on 16 August 2006, and after about three weeks was approached by Turkish Nationalists who demanded 15,000 Euros and threatened him with death if he did not comply. The delegate referred to his claim that the extortionists said that he should pay them instead of supporting HADEP (CB 39.6). He was forced to flee Turkey and eventually made his way to Australia on the above mentioned false passport (CB 38).
The delegate found that the applicant had suffered four short periods of detention between 1993 and 2006. Whilst not finding that the mistreatment claimed did not occur, the delegate placed emphasis on the fact that the applicant was released after relatively short periods, that he was not a member of a political party and that he had not, in the delegate’s opinion, substantiated his claims of political activism (CB 42-3). The delegate also considered the extortion to have been practised on the applicant because of his perceived wealth rather than for a Convention reason (CB 44.1). His application for protection was rejected on 11 December 2006 (CB 35-48). The application to the Tribunal was lodged on 15 December 2006 (CB 50-53).
A Tribunal hearing was appointed for 6 February 2007 (CB 59). It was later rescheduled to 30 January 2007 (CB 75). On 18 January 2007 the applicant’s solicitor and registered migration agent, Mr Fergus, forwarded a copy of a medical report (with translation), dated 24 February 2006, signed by two people who were said to be medical staff at the Gelisim Hospital in Istanbul where the applicant said he had been treated after his experiences of February 2006, together with an authority permitting officers of the Australian Embassy in Ankara to access his medical records (CB 84-87). Mr Fergus also made detailed written submissions prior to hearing (CB 88-97).
On 30 January 2007, the applicant attended the Tribunal hearing (CB 100) assisted by Mr Fergus.
By letter dated 1 February 2007, the Tribunal sent a letter to the applicant inviting him to comment on information which may be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa (CB 103-105). The Tribunal’s letter identified a letter it had written to the Australian Embassy on 30 January 2007 and the Embassy’s reply dated 31 January 2007 as the relevant information. The information was said to be relevant because it could lead the Tribunal to make a finding that the applicant’s claims were fabrications.
The applicant, by facsimile dated 7 February 2007 from his migration agent (CB 108–115), responded and forwarded supporting documentation, among which were the applicant’s statement and the statutory declaration of the applicant’s brother. The letter concluded with a request for a reconvened hearing if the “Tribunal cannot accept the submission”.

The applicant’s claims on review

The applicant claimed to fear persecution in Turkey by reason of his Kurdish ethnicity and imputed political opinion through his support for the pro-Kurdish People Democracy Party (HADEP). He claimed he was not a member of HADEP or any other pro-Kurdish political party, but that he supports Kurdish political and cultural rights, although he has never expressed his views publicly. He claimed that he provided financial help to HADEP on a monthly basis.
In support of his claimed well-founded fear of persecution for reasons of his imputed political opinion and ethnicity, he claimed that in 1993, he was detained for one day at the police station during a protest rally. In 1995, he was detained for 2 days during a public protest against the actions of police in Gazimahales. In March 2004, he was detained for 6 days with 70 others during Nevruz celebrations in Diyarbakir, when he was subjected to beating on the soles of his feet and then forced to walk through heavily salted water.
He claimed that on 20 February 2006, a number of police officers came to his workshop and took him to the police station in Istanbul. He was blindfolded, interrogated about his knowledge of and/ or involvement in terrorist organisations and tortured. After four days he was driven to a village outside of Istanbul.
In September 2006, he received extortion demands and death threats from the para-military group known as “Grey Wolves”.
He feared that he would be persecuted by the Turkish authorities and non-State agents because of his Kurdish ethnicity and imputed political opinion as a supporter of HADEP, if he returns to Turkey.

The Tribunal’s reasons

The Tribunal’s written statement of reasons records extensively the body of the applicant’s claims and the applicant’s oral and documentary evidence.
Under the heading “Findings and Reasons” (CB 137-138), the Tribunal found that the medical certificate provided by the applicant to support his claims issued by Gelisim Hospital on 24 February 2006 after the applicant was purportedly treated following an assault on him by Turkish authorities was a fabricated document produced to advance the applicant’s claims. In this respect, the Tribunal found that the Australian Embassy’s enquiries were sufficiently detailed to establish that the document was fraudulent and far-fetched. It did not accept that there was a linguistic misunderstanding with regard to the position of the medical administrator that signed the letter or that pseudonyms may have been used as claimed by the applicant.
The Tribunal considered the applicant’s representative's request for a further hearing to take oral evidence in support of the statutory declarations made by the applicant and his brother, but found that it would be unhelpful to the Tribunal in light of the specific inquiries carried out by the Australian post.
The Tribunal found that there was no real chance that the applicant might suffer serious harm should he return to Turkey.
The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention based reason if he were to return to Turkey now or in the reasonably foreseeable future.
The Tribunal concluded that the applicant is not a person to whom Australia owed protection obligations.

The judicial review application

These proceedings began with a show cause application filed on 13 March 2007. The applicant asserted actual notification of the decision on 12 February 2007. The applicant required an extension of time. I was satisfied that it was in the interests of the administration of justice to grant it, noting in particular that the application was only slightly late and that significant issues were raised. I granted an extension of time on 10 April 2007 and made procedural orders for the conduct of the matter.
The applicant now relies upon an amended application filed on 30 April 2007. The grounds of that application are:
Ground 1: The Tribunal failed [to] ask itself a question that it was required to ask in the exercise of its jurisdiction.
Particulars
(i)The Tribunal found on, “the balance of probabilities”, that a medical certificate produced by the applicant in support of his claim to have been tortured was a fabrication.
(ii)The Tribunal, not being certain that this finding was in fact correct, was required to ask itself and consider whether its conclusion in that respect was mistaken.
Ground 2: The Tribunal committed jurisdictional error by breaching the provisions of s.425(1) Migration Act.
Particulars
(i)The Tribunal did not provide the applicant with an opportunity to present oral evidence and arguments on issues relevant to the decision, despite having called a hearing for that purpose.
(ii)One hearing having been adjourned prior to the applicant giving evidence, the Tribunal denied the applicant an opportunity to attend another hearing to give such evidence.
Ground 3: There is a reasonable apprehension of bias.
Particulars
(i)The Tribunal’s decision not to accord the applicant a second or resumed hearing because, “… a further hearing would not be helpful to the Tribunal in the light of specific inquiries carried out by the Australian post”, suggests that the Tribunal considered that nothing the applicant could have said could have changed its mind.
(ii)The Tribunal prejudged the applicant’s evidence.
Ground 4: The Tribunal failed to consider a claim made by the applicant.
The Tribunal failed to consider whether the extortion claimed to have been attempted on the applicant in August 2006 was productive of a well founded fear of persecution on his part.

The evidence

I received as evidence:
a)the court book filed on 26 April 2007;
b)the affidavit of Paul Edward Fergus filed on 30 April 2007 to which is annexed a transcript of the Tribunal hearing conducted on 30 January 2007; and
c)a copy (unsigned) of a statutory declaration relied upon by the applicant in support of his protection visa before the delegate which had been omitted from the court book, and which I marked as exhibit A1.

Submissions

Both the applicant and the Minister made written and oral submissions. In relation to the first ground of review, the applicant asserts that the Tribunal erred in deciding “on the balance of probabilities” that the hospital certificate presented by the applicant was fraudulent, and by failing to then ask itself what would be the situation if it was wrong in that assessment. The applicant relies upon the decision of the Full Federal Court in Minister for Immigration v Rajalingam (1999) 93 FCR 220, in particular at [62]-[63] per Sackville J. The applicant submits that the qualified finding on the medical certificate means that the Tribunal was not certain that the certificate was a fabrication.
In relation to the second ground of review the applicant submits that he was not given a real opportunity to address the Tribunal on the issue which, in the Tribunal’s mind, was determinative. The applicant concedes that the issue was identified by the Tribunal at the hearing and, hence, there was no error of the kind identified by the High Court in SZBEL v Minister for Immigration [2006] HCA 62. However, the applicant submits that he was denied the opportunity to attend and present arguments orally on the question of the authenticity of the medical certificate.
On the third ground, the applicant submits that the fact that the Tribunal denied the applicant’s request for a resumed hearing on the basis that it would not be helpful gives rise to a reasonable apprehension of bias through pre judgement. The applicant relies upon R v Armstrong; ex parte Watson (1976) 136 CLR 248 at 258-9 and 262-3 and Vacauta v Kelly (1989) 167 CLR 568 at 572-3.
In relation to the fourth ground, the applicant submits that exhibit A1 establishes that the applicant had claimed that an extortion attempt was made against him, accompanied by a threat of death if he refused to comply and that this was an element or integer of his claims that needed to be considered by the Tribunal. The applicant also relies upon the transcript[2] to establish that the claim was maintained before the Tribunal[3].
[2] Page 7 at [41] and page 8
[3] see also CB 90
The Minister relevantly submits as follows:
Ground one alleges that the Tribunal failed to ask itself whether it could be mistaken in its decision that the medical certificate produced by the applicant in support of his application was fabricated. The applicant submits that the Tribunal was unable to exclude the possibility that the document was genuine. Therefore, as such it was obliged to consider the possibility that the certificate was indeed genuine. As authority for this proposition the applicant cites Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The applicant, in citing as authority for his proposition Sackville J in Rajalingam at [62] – [63] in isolation, appears, in fact, to seek to invoke the principle articulated by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, rather than the entirety of the principle formulated by Sackville J in Rajalingam. Kirby J in Wu Shan Liang in the minority judgment, indicated that it is necessary for a Tribunal to ask itself “what if I am wrong?” This issue was discussed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, a case which determined that the “what if I am wrong” test was only a step that needed to be taken by a decision-maker where the decision-maker has expressed some real doubt about a conclusion which the decision-maker has arrived at.
This test was also considered in Rajalingam, in which the majority was of the view, as stated by Sackville J at [56]:
Nothing in the reasoning of the joint judgment (in Guo) suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review by considering the merits of the RRT’s decision.
In his Honour’s concluding remarks in Rajalingam, Sackville J found at [67]:
In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271–72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution. [emphasis added]
It is submitted that his Honour’s remarks at [67] supra better apply to the context of this proceeding.
The applicant asserts that the Tribunal’s use of the word “balance of probabilities” (CB 137.8) in assessing the authenticity of the medical certificate, is evidence of the Tribunal having exceeded its jurisdiction by committing an error involving an incorrect interpretation of the applicable law. This assertion is an example of construing the Tribunal’s reasons “minutely and finely with an eye keenly attuned to the perception of error” referred to in Wu Shan Liang at 271 – 72.
There is no doubt, that the Tribunal in assessing the applicant’s claims, asked itself the correct question and applied the correct test, being the “real chance” test as set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Wu Shan Liang and Guo. In discussing the law at the beginning of its decision, the Tribunal made the following statement (CB 124.8):
A real chance is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent.
A fair reading of the Tribunal’s reasons can only lead to the conclusion that the Tribunal was conscious of the test. At various points in its reasons the Tribunal referred to the “real chance” test. For example, the Tribunal found that (CB 138.4):
In light of the evidence before it, the Tribunal finds that there is no real chance the applicant might suffer serious harm should he return to Turkey.
There are other points in the Tribunal’s reasons where it is clear that the “real chance” test has guided the Tribunal in its assessment of the applicant’s claims. For example, the Tribunal found that the Australian Embassy’s enquiries established with “sufficient detail” that the document was “fraudulent” and “far fetched”. (CB 137.9) Further, the Tribunal found support for its finding of there being no real chance of the applicant suffering serious harm should he return to Turkey in the applicant’s representative’s concession in the submission of 22 January 2007 that “there was little in the applicant’s personal experiences to distinguish him from millions of other Turks of Kurdish origin…the evidence does not explain why a change occurred in February 2006.” (CB 138.3)
The Tribunal reached the necessary state of satisfaction as to the authenticity of the medical certificate on the basis of the “specific inquiries carried out by the Australian post”. (CB 138.2) The Tribunal found support for its findings in the fact that “neither of the names of mentioned on the document were recognised by the switch board of the hospital or its administrative officer during the telephone enquiries made by the Tribunal during the hearing.” (CB 138.3)
A fair reading of the Tribunal's reasons allows the conclusion that the Tribunal had no doubt that its findings on material questions of fact were correct. It is submitted that the Tribunal was in no doubt that the alleged events did not in fact occur. On this basis, it is submitted that Ground one fails and should be rejected.
Ground 2
Ground 2 alleges that the Tribunal committed jurisdictional error by breaching the provisions of s 425(1) of the Act by not providing the applicant with an opportunity to present his own oral evidence on the authenticity of the medical certificate. In his written submissions, the applicant selects parts of Annexure “A” to the affidavit of Paul Edward Fergus affirmed 26 April 2007 (“the Transcript”) to support his assertion at [11] of his written submissions, that he “was given no opportunity to give evidence or make submissions about the issue.”
A close reading of the Transcript reveals that this assertion is plainly untrue. At page 15 of the Transcript, after discussing the central importance of the authenticity of the document to the outcome of the Tribunal’s decision, a further opportunity was given to the applicant to raise any matter he wished, when the Tribunal member is recorded as asking at Q.69:
“Is there anything…”.
To which the applicant’s adviser is recorded as responding:
“Could I ask two things?...”
The applicant’s adviser then requests that an executed copy of the applicant’s statutory declaration be returned and that he be notified of the terms of the request to the Embassy in order to enable him to make some suggestions as to its wording. The first request was acceded to and the second was dealt with in a discussion immediately following which is transcribed on pages 15 – 19. Within the body of this discussion, the applicant is recorded as indicating he had something he wished to say [Transcript p 17, immediately after Q 80]. A discussion ensues in which the applicant gives evidence about the terms of his stay in the hospital and other particulars relevant to the Tribunal’s proposed inquiries. On page 19, this discussion is concluded by the Tribunal member asking the applicant clearly, at Q 90:
…“Anything else you wanted to say?”
to which the applicant is recorded as saying:
“That’s all. Thank you”.
It is clear on the face of the Transcript alone that the applicant was in fact given ample opportunity to give evidence and make submissions about the issues arising in relation to the decision under review.
The applicant goes on to assert at [23] of his submissions that the Tribunal had ample opportunity to formulate questions and quiz the applicant about his time in the hospital and events leading to the procurement of the certificate. The applicant refers to the “plain wording” of s 425(1) to support the proposition that the Tribunal is obliged to afford the Applicant an opportunity to present evidence orally.
Section 425(1) provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. [emphasis added]
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 the Court (at [33]) indicated that pursuant to s 425 the Tribunal “is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture…”.[emphasis added]
The Court went on at [35] – [37] to qualify this remark:
Section 425 is not a code setting out all of the requirements for a fair hearing by the tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself – this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation – only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the tribunal.
It is clear that s 425 of the Act does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671; BC200007138.
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the tribunal. The statutory obligation upon the tribunal to provide a “real and meaningful” invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; BC200300681. They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; BC200203400. They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; BC200204868; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788; BC200107846.
[emphasis added]

Further, it is submitted that the construction proffered by the applicant is not supported by definitive authority on the construction of the remainder of s 425(1).
For example, in their joint reasons for judgment in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 51, Gummow and Hayne JJ, in considering the extent of the obligation of a Tribunal decision-maker hearing an application for review under the Act to afford an applicant the opportunity to give evidence, said at [187]:
The proceedings before the tribunal are inquisitorial and the tribunal is not the position of a contradictor. It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. [emphasis added]

Consistent with these statements is the recent observation by the Full Court in Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]:
Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal member conducting an enquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, … had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon.

It is submitted that the preceding remarks are apposite in the context of the second allegation raised in this proceeding.
The High Court’s judgment in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 does not alter the obligation imposed on the Tribunal by s 425(1). The High Court made clear at [3] of its reasons that it was dealing with a particular factual matrix. In that case,
The Tribunal wrote to the appellant telling him that it was unable to make a decision in his favour on the information he had supplied, and invited him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The appellant took up this invitation and appeared before the Tribunal in February 2003. The Tribunal member began proceedings by telling the appellant that on reading all of the material, she was not able to be satisfied that the appellant qualified for a protection visa. The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be "implausible". Rather, the first that the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision. [emphasis added]

What is clear from the above paragraph, is that the High Court has sought to qualify further the obligation imposed on the Tribunal by s 425(1). This obligation involves the Tribunal member doing one of three things, as emphasised in the paragraph above. That is, it must either challenge what an applicant says, express a reaction to it or seek amplification from the applicant. It is clear from a proper reading of the Transcript that this obligation was complied with.
It is for the above reasons that ground 2 must fail and should be rejected.
Ground 3
Ground 3 alleges a reasonable apprehension of bias on the basis of the Tribunal’s decision not to afford the applicant a second or resumed hearing because a further hearing would not have been helpful to the Tribunal in light of specific inquiries carried out by the Australian post. The applicant submits that the Tribunal prejudged his evidence. That is, that there was nothing that the applicant or his brother could have said that could have made a difference to the Tribunal’s decision.
The Tribunal is required pursuant to s 425 of the Act to invite the applicant to a hearing. That hearing being concluded, there is no statutory requirement that the Tribunal conduct a further hearing at the request of the applicant, despite it having the power to do so. A failure to do so is not to be confused with an apprehension of bias.
In response to the “Invitation to Comment on Information” the applicant’s adviser wrote a 3-page letter (CB 108 – 110) which detailed the applicant’s submissions on the Embassy’s report of unauthenticity of the medical certificate. In addition, the applicant put on a further statement and his brother put on a statutory declaration providing the Tribunal with proof of the evidence that each would give and the submissions that each was likely make on the issue. There is no contention that the Tribunal did not consider this evidence in its contemplation of the issue. In fact, in its findings and reasons the Tribunal indicated that it “had considered the representative’s request for a further hearing to take oral evidence in support of the statutory declarations made by the applicant and his brother” but it had found that to do so “would be unhelpful to the Tribunal in light of the specific inquiries carried out by the Australian post.” (CB 138.1)
It is clear that the Tribunal very carefully considered the representative’s request for a further hearing, but the Tribunal was satisfied that the applicant had been given a proper opportunity to present his case in full.
The apprehended bias test requires that an objectively real possibility of bias rather than a probability. In this regard, the applicant’s claim of apprehended bias by the Tribunal member either stands or falls upon the basis of the Transcript and the Tribunal’s reasons, as no other material is relied upon. It is submitted that there is nothing in the Transcript or in the procedures adopted by the Tribunal to indicate that the Tribunal had a mind “incapable of alteration”: see Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at 532 or that would cause a hypothetical fair-minded lay observer who was properly informed as to the nature of the proceedings and the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal v Ex Parte H (2001) 179 ALR 425 at 434 and 427 and 434 – 5 Gleeson CJ, Gaudron and Gummow JJ.
It is on this basis, that ground 3 must fail and should be rejected.
Ground 4
Ground 4 alleges that the Tribunal failed to consider a claim made by the applicant, being that the extortion attempted on the applicant in August 2006 was productive of a well-founded fear of persecution on his part.
At the conclusion of its reasons the Tribunal found that (CB 138.4):
In light of the evidence before it, the Tribunal finds that there is no real chance the applicant might suffer serious harm should he return to Turkey. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of his political opinion.

The applicant’s claim to have a well-founded fear of persecution for the Convention reasons of imputed political opinion and his Kurdish ethnicity. The claim of extortion in 2006 went to proving the existence of a “substantial basis” for this well-founded fear: see Guo at 572.
The fact that Tribunal’s findings in respect of the applicant’s claims were expressed generally and not in respect to each individual incident or piece of evidence referred to by the applicant does not demonstrate jurisdictional error on the part of the Tribunal on the basis that it failed to take into account a relevant consideration: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. Rather it reflects findings on questions of fact that the Tribunal thought were material. Such an approach is all that is required of the Tribunal in respect of its reasons for decision: Yusuf at [68].
Further, in circumstances where the elements of the applicant’s claim have been addressed, the failure to mention or grapple expressly with part of the applicant’s evidence does not mean that the Tribunal's decision is vitiated by jurisdictional error by reason of its failure to take into account a relevant consideration: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Yusuf at [68].
It is on this basis that ground 4 fails and must be rejected.

Reasoning

Ground 1

The Tribunal is not a court and is not bound by the rules of evidence. The obligation on the Tribunal is to consider whether it is able to reach a state of satisfaction on an applicant’s claims sufficient to grant the class of visa sought. As is detailed in the applicant’s submissions, the Tribunal’s approach to the resolution of that issue is apparent from what occurred at the Tribunal hearing. I have adopted portions of those submissions in this judgment. The authenticity of the hospital certificate relied upon by the applicant before the Tribunal was obviously fundamental to the outcome of the review. Indeed, the presiding member said so at the hearing.
A transcript of the hearing is in evidence (annexed to Mr Fergus’ affidavit). After preliminaries the Tribunal, noting the applicant’s authority to make enquiries of the hospital at which the applicant claimed to have been treated, said that it had accessed the hospital’s website. It then, during the hearing attempted to phone the hospital switchboard (transcript (T) pp 5-7). This did not succeed in gaining any relevant information. (T 10).
After the interpreter advised the Tribunal member that the hospital receptionist was hanging up, the Tribunal said (T 11):
Q50I see. O.K. O.K. Well, what I propose is that we talk to the most senior person we can whether they recognise these names. If we can’t do this then I would ask the Australian Embassy as a matter of emergency, matter of urgency to go to the hospital within the next couple of days with a copy of this document. O.K. But we’ll see if we can get someone in the hospital who can, who recognises these names that would of course be getting there.
A second call elicited the information that the receptionist did not recognise the names of the doctors on the certificate, and said that they were not working there (T 12-13).
After the second call the following exchange occurred (T 13-15):
THE TRIBUNAL
Q65Thank you so much. That was very helpful. O.K. Well, look, I think this document is very important, what we might call crucial. I am certainly prepared to accept that the sort of injuries that are described there would be, would be easily understandable as a result of the claims you have made of injuries at the hands of the authorities, but of course I will now have to check whether the document is genuine. I have your permission for us to investigate that. Is that still O.K.?
AYes.
Q66So as I said, I will ask the Tribunal to ask the Australian Embassy to quickly investigate the document. I don’t think it’s necessary for them to have the original document, they could work with a fax. I can advise them that we’re now finished. I don’t think - - -
ADVISER

I, I think so, Member, if that’s the position you’ve arrived at.
THE TRIBUNAL
Q67Yes. There’s nothing further that, yes. It’s Ron here. I’ve nearly finished if someone would like to come in and close. Thank you. I realise you’re in detention and that is not pleasant and I am sure the Australian Embassy will act very quickly because they know that you are being held in detention. As soon as we get a reply from the embassy that will be forwarded to your representative for comment. No, actually if the embassy says it is a genuine letter then I would be prepared to believe that that is sufficient evidence to accept your claims and there would be no need to, to forward it to your adviser but in any case I would immediately inform your adviser of the results of the embassy’s investigations, whether they’re positive or negative. If they are negative, that is they say that this for example is a forged document, then I would wait for what your adviser would like to say to me after talking to you about it.
AYes.
Q68If it is positive I would be able to write a decision quite quickly.
It is plain from the discussion which ensued between the presiding member and the applicant’s adviser that the Tribunal took the view that the outcome of its investigation as to the authenticity of the certificate would determine the outcome of the review. Two conclusions may be drawn from the transcript of the hearing. The first is that the Tribunal treated the issue of the validity of the hospital’s certificate as determinative of the application before it. The second is that the applicant himself did not at the hearing give evidence or make submissions about this issue.
On 1 February 2007 the Tribunal wrote to Mr Fergus with the results of the Embassy’s enquiries (CB 103-5). The Embassy advised that (at CB 104):
a)it had contacted the hospital and was advised that there was no record of the applicant having been admitted, and,
b)the doctors whose signatures appeared on the certificate had never worked at the hospital.
The information was said to be relevant because it could lead to the conclusion that the applicant’s claims were fabricated.
Mr Fergus responded in detail on 7 February 2007 (CB 108-10), attaching a letter from the applicant (CB 111) and a statutory declaration from his brother as to how the hospital certificate was obtained (CB 114-5). The applicant stated in part that it would be dangerous for a doctor to put his own name to a certificate which in effect would verify that a person had been tortured. That would, he said, “… not only jeapoardise the doctor, but would also be considered to sully the reputation of the Republic of Turkey” (CB 111.5).
In his submissions Mr Fergus referred to the fact that the hospital certificate appears to have been written on the official letterhead of the hospital (CB 109.2), and to the fact that the Embassy’s advice indicated that it had not given the hospital an opportunity to examine the document itself (CB 109.4). He continued:
… Mr [applicant] has himself suggested reasons why the doctor who treated him and the Medical Director may have used pseudonyms to protect their anonymity. It is not a matter of surprise, we submit, that individuals providing such dangerous reports about the conduct of the security forces in Turkey should use whatever means they can to protect their identities.
A further comment must be made about the care of the Embassy in attempting to authenticate the document. In the translation of the original document made by a NAATI Level 3 translator it is clear that Prof Dr Aybars held the position of “Medical Director”. The reply to the Tribunal from the post states that, “Gelisim Hospital told us the chief of staff of the hospital was a Dr Halil Uslu…”. This we submit leaves a serious doubt about whether the hospital and the Embassy were even speaking the same language. …
Mr Fergus concluded by submitting that if the Tribunal did not accept his submissions it should, “… reconvene the hearing to take testimony from [the applicant] and his brother in support of the evidence they have provided by statutory declaration” (CB 110.5).
The Tribunal canvassed the evidence and submissions at some length. Having considered the applicant’s submissions it found that (CB 137.9):
In the light of the evidence before it the Tribunal finds on the balance of probabilities, that the letter (i.e. the hospital certificate) is a fabricated document produced to advance the applicant’s claims. The Tribunal finds the post’s enquiries sufficiently detailed as to establish that the document is fraudulent …
It commented that it found the applicant’s explanations “far fetched”. It continued (at CB 138.1):
The Tribunal has considered the representative’s request for a further hearing to take oral evidence in support of the statutory declarations made by the applicant and his brother, but finds that this would not be helpful to the Tribunal in the light of the specific enquiries carried out by the Australian post.
The Tribunal concluded by referring to evidence that reinforced its conclusions that the applicant does not have a well founded fear of persecution upon return to Turkey.
The Tribunal’s reference to the “balance of probabilities” is unfortunate but the decision must be interpreted by reference to the reasons as a whole. In my view, on a fair reading of the decision as a whole, the Tribunal was in no doubt whatsoever that the hospital certificate was a fabrication. The presiding member relied completely upon the information received by the Australian embassy and rejected entirely the applicant’s response to the s.424A invitation to comment. The Tribunal also rejected the applicant’s request for a resumed hearing on the basis that it would be “unhelpful”. These factors, considered together, leave me in no doubt that the Tribunal regarded the outcome of its inquiry as to the authenticity of the hospital certificate as a “king hit” which was fatal to the applicant’s claims.
As the Tribunal was in no doubt as to the lack of authenticity of the hospital certificate it did not need to consider what the position would be if the certificate was authentic. I reject the first ground of review.

Ground 2

There is no doubt that the applicant was invited to a hearing[4]. The applicant attended the hearing conducted by the Tribunal which was rescheduled from 6 February 2007 to 30 January 2007[5]. The question is whether the hearing opportunity afforded the applicant was a real one. There is no doubt that the presiding member identified at the hearing the critical issue the authenticity of the hospital certificate. At the hearing the Tribunal adopted the procedure of attempting to check with the hospital by telephone whether the doctors identified on the certificate were known to the hospital. The outcome of that inquiry was that the person that the presiding member spoke to was not able to identify the doctors and the presiding member decided that a more formal approach was required through the Australian embassy in Ankara. The applicant’s adviser sought the opportunity to comment on the framing of the request to the post but the presiding member stated that the applicant would be given the opportunity to comment on the outcome of the inquiry[6]. The applicant was given the opportunity, pursuant to s.424A, to comment in writing on that outcome. The significance of the information received by the Tribunal from the Australian embassy was clear. It pointed to the hospital certificate being a fabrication. The applicant, through his adviser, sought the opportunity to present further arguments and evidence at a resumed hearing but that request was denied on the basis that it would be “unhelpful”. The request for a resumed hearing mentioned in particular that the applicant’s brother was available to give evidence. The transcript records on pages 1 to 5 that some evidence was taken from the applicant’s brother at the hearing that was conducted on 30 January.
[4] CB 58-60
[5] CB 75-76
[6] Transcript at pages 15-16

In this regard it is important to bear in mind that the review process in Part 7 of the Migration Act 1958 (Cth) (“the Migration Act”) is predominantly a documentary process. It is wrong to see an applicant’s appearance at a hearing pursuant to s.425 as the focus or culmination of the review process. It is no more than a step in the process: SAAP v Minister for Immigration [2005] HCA 24 at [192]-[193] per Hayne J. See also Win v Minister for Immigration [2001] FCA 56 at [27]-[28].
There is a question whether the Tribunal regarded the hearing on 30 January 2007 as being completed or adjourned. The Tribunal has power, pursuant to s.427 of the Migration Act to adjourn a hearing from time to time but there is nothing express or implied in the transcript to indicate that the Tribunal intended that the hearing was adjourned. On the contrary, the presiding member seemed anxious to terminate the hearing and to complete the review on the papers. The manner in which the hearing was conducted shows that the Tribunal considered that the applicant’s claims would be answered by the outcome of the inquiry it intended to make to establish the authenticity of the hospital certificate. The Tribunal accepted that if the hospital certificate was authentic, the applicant would be accepted as a refugee pursuant to the Convention and the Migration Act. Conversely, the Tribunal made sufficiently clear at the hearing that if the reverse was established, the review application would be likely to fail. Although the applicant’s adviser sought to be involved in the process of making the then proposed inquiry to the Australian embassy, neither the applicant, nor his adviser, raised any objection at the hearing to the procedure adopted by the Tribunal. On my reading of the transcript, both the applicant and the Tribunal were satisfied by the process outlined by the presiding member, on the basis that the applicant would have the opportunity to comment in writing on the information received from the embassy.
The Tribunal proceeded on the basis that the applicant said all he needed to in order to establish that he had a well-founded fear of persecution in Turkey for a Convention reason and that, if the hospital certificate was authentic, the outcome of the review would be favourable to the applicant. Conversely, if the hospital certificate was a fabrication, the Tribunal’s attitude was that the onus would be on the applicant to respond in writing to try to retrieve the position. There was no promise or indication held out by the Tribunal that there would be a further hearing and there was no adjournment of the hearing. It appears to me to have been accepted that the review would be completed with the opportunity for written comments on the information to be received from the embassy.
The applicant was invited to comment on the information received from the embassy and did so. It was at that point that the applicant requested a further hearing in the belief that the Tribunal may be unwilling to make a favourable decision on the papers. But the applicant already knew that when he was invited to a hearing in the first place. If the applicant failed to take full advantage of the hearing he attended that was not the Tribunal’s fault. He was not prevented from doing so. Although the presiding member was anxious to complete the hearing the applicant was asked if there were other things he wanted to say before the hearing concluded (T19, Q90). He responded:
That’s all, thank you.
The obligation to invite comment on adverse information pursuant to s.424A and the obligation to invite an applicant to a hearing to present arguments and give evidence pursuant to s.425 are independent obligations and the observance of one does not remove the need to also observe the other[7]. If the hearing had been incomplete on 30 January 2007, it would have needed to be resumed, but the manner in which the hearing was conducted establishes to my satisfaction that the Tribunal regarded the hearing as complete and that no objection was raised by or on behalf of the applicant at that time. Even when a further hearing was requested, it was only requested for the purpose of attempting to dissuade the Tribunal from the adverse view established by the information received by the Australian embassy. The Tribunal regarded that request as futile and said so. No request was made for a further hearing in relation to any other aspect of the applicant’s claims.
[7] SAAP v Minister for Immigration [2005] HCA 24 at [60] per McHugh J
While it was perhaps incautious of the Tribunal not to accede to the request for a resumed or further hearing, the hearing opportunity that the applicant was afforded was a real one and was adequate in the circumstances to meet the requirements of s.425. I reject this ground of review.

Ground 3

It is clear from the transcript that, at the time of the hearing, on 30 January 2007, the Tribunal considered that there could be only two outcomes to the review. Either the hospital certificate was genuine and the applicant should be accepted as a refugee or the hospital certificate was a fabrication and, subject to the applicant’s further written comments, the review application should be rejected. The applicant had himself introduced the hospital certificate as a critical document after the decision of the delegate and it plainly was fundamental to the credibility of his claims. The failure by the hospital representative in the telephone conversation during the hearing to recognise the two doctors referred to on the certificate was an indication that the hospital certificate might be a fabrication but it could not be said at that time that the presiding member had a closed mind. He simply wanted to resolve the issue with certainty by making a further inquiry of the Australian embassy.
Neither does any apprehension of bias flow from the s.424A invitation. The Tribunal was simply meeting its statutory obligation. It could be supposed that, in the light of the information received from the embassy, the Tribunal might have formed a preliminary view that the hospital certificate was a fabrication but the opportunity was there for the applicant to dissuade the Tribunal through his written comments. Plainly, the applicant failed in that attempt. The Tribunal in its reasons, regarded the explanation for the hospital’s failure to identify the doctors as “far fetched”. It can be inferred that the Tribunal had made up its mind about the applicant’s claims by the time it considered the response to the s.424A invitation. The refusal by the Tribunal to conduct a further hearing is a firm indication that the Tribunal’s mind was then made up, but where the Tribunal is under no obligation to conduct a further hearing, a refusal to conduct one should not be taken to be an indication of an apprehension of bias. The Tribunal must at some point make up its mind about an applicant’s claims. The Tribunal would have had to take into account further documents or submissions received from the applicant before the decision was made but the applicant did not provide any. I find, in the circumstances of this matter, that an apprehension of bias has not been established. I reject this ground of review.

Ground 4

The Tribunal recognised the extortion claim made by the applicant[8]. There was no express consideration of the claim in the Tribunal’s reasons. Neither can any consideration be inferred. On page 138 of the court book the Tribunal says:
The Tribunal is strengthened in its findings by the concession made by the applicant’s own representative in the submission of 22 January 2007 that “there was little in the personal experiences of [the applicant] to distinguish him from millions of other Turks of Kurdish origin…the evidence does not explain why a change occurred in February 2006…”
[8] see CB 137
The Minister contends that this paragraph is not a consideration of the extortion claim but rather, that claim necessarily fell away once the applicant’s credibility was destroyed by the establishment of the hospital certificate as a fabrication. It is unclear why the paragraph quoted above was included in the reasons. In the Minister’s submission, it was a “clumsy” inclusion. It certainly added nothing to the Tribunal reasons. The balance of the decision indicates some lack of attention to detail by the presiding member in that it was necessary for the Tribunal to publish a corrigendum deleting an inappropriate conclusion that the applicant qualified for a protection visa and that the decision was remitted to the Minister for reconsideration.
I reject the Minister’s submission that the inclusion of the final paragraph in the Tribunal’s reasons before its conclusions:
In the light of the evidence before it, the Tribunal finds that there is no real chance the applicant might suffer serious harm should he return to Turkey. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reason of his political opinion, his ethnicity, or for any other Convention reason.
supports an inference that the Tribunal had considered all of the applicant’s claims. This was merely a template finding that one sees in virtually all tribunal decisions. If the Minister’s submissions on that paragraph were to be accepted, a claim that relevant considerations were overlooked could almost never succeed.
The fact is that the Tribunal’s reasons make no finding on the extortion claim. The Tribunal’s silence leads me to the conclusion that the claim was not dealt with: SZDVB v Minister for Immigration [2004] FMCA 571 at [21].
It is unnecessary for the Tribunal to deal in its reasons with every item of evidence advanced by an applicant in support of claims of persecution. It is, however, necessary for the Tribunal to deal with every element or integer of those claims. The Tribunal must deal with all material facts: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [5] and [82]. A fact is material if it bears directly on an applicant’s eligibility for a visa: WAEE v Minister for Immigration (2003) 75 ALD 630 at [50]-[52]. The extortion claim formed a part of the applicant’s claims of political or ethnic persecution but it was more than an item of evidence. The claim of extortion, coupled with the threat to the applicant’s life, might, on its own, have supported a well‑founded fear of persecution. It was certainly not part of the personal experiences of “millions of other Turks of Kurdish origin”. The delegate considered the extortion claim to be material and dealt with it, finding that the claim was not Convention related. The applicant was seeking review of that decision and the Tribunal needed to grapple with the issue. The claim could only be excluded from consideration if the applicant’s credibility was so utterly destroyed by the finding on the hospital certificate that nothing that he could have said on any subject whatsoever was worthy of consideration. No such finding was made by the Tribunal and I do not think that such a finding can be fairly inferred from the Tribunal’s reasons, read as a whole.
It is true that, from the time of the hearing on 30 January 2007, the Tribunal regarded the issue of the certificate as determinative of the review application but at no stage had the applicant abandoned the extortion claim or relieved the Tribunal of the obligation of considering it. The Tribunal’s obligation under s.430 is to consider and make findings on facts that the Tribunal thinks are material[9]. But that section does not relieve the Tribunal of its general obligation to take all relevant material into account[10]. The applicant accepted the procedure followed by the Tribunal in order to resolve the issue of the authenticity of the certificate but he did not endorse any approach by the Tribunal that excluded from consideration the extortion claim, regardless of the outcome of the inquiry of the certificate. Although the issue of the authenticity of the certificate was fundamental, the Tribunal could not complete its review until it dealt with the applicant’s extortion claim. The Tribunal failed to do so and that it sufficient to establish jurisdictional error.
[9] Yusuf at [68]
[10] Yusuf at [72]-[75]
The applicant will receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 31 May 2007