SZLKY v Minister for Immigration & Anor
[2008] FMCA 841
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 841 |
| MIGRATION – Review of Refugee Tribunal decision – no breach of s.424A of the Act – no failure to accord procedural fairness – Tribunal’s reasoning not illogical – no bias or apprehended bias on the part of the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZLKY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3110 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 March 2008 |
| Date of Last Submission: | 31 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 8 October 2007, and amended on 10 January 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3110 of 2007
| SZLKY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 8 October 2007, and amended on 10 January 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 August 2007, and handed down on 18 September 2007, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The first respondent has filed a bundle of relevant documents in this matter (the Court Book (“CB”)) from which the following background may be discerned.
The applicant is a citizen of the Ukraine who arrived in Australia on 28 February 2007. On 2 March 2007, he applied for a protection visa. (The application is reproduced at CB 1 to CB 39, with annexures.) On 18 May 2007, a delegate of the respondent Minister refused to grant the visa.
On 8 June 2007 the applicant applied to the Tribunal for review of the decision (CB 67 to CB 71). The applicant attended a hearing before the Tribunal on 25 July 2007. The Tribunal’s account of what occurred at the hearing is set out in its decision record. (See the Tribunal’s decision record at CB 164 to CB 177.) At the hearing, the applicant submitted a number of documents to the Tribunal (see CB 80 to CB 153, and CB 173), including a document entitled: “Responses to Information Requests (Canada)” (see CB 91).
Following the hearing, the applicant sent a letter to the Tribunal on 1 August 2007 by facsimile transmission (CB 154 to CB 156) addressing issues raised at the hearing.
The Tribunal also wrote to the applicant by letter dated 1 August 2007, seeking his written comments on certain information that it said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 157to CB 158). This letter also addressed issues raised at the hearing. The applicant responded by letter dated 20 August 2007 (CB 159 to CB 160).
The applicant’s claims to protection
The applicant’s claims to protection were said to arise from his fear of harm from the Security Service of Ukraine (“the SBU”). The applicant claimed that the KGB (Russian Security) had coerced him into signing a document in 1991, in which he agreed to act as an informant, particularly while working on cruise ships. That in 2006 in the Ukraine, someone from the SBU approached him, relied upon this document and demanded that the applicant assist in locating four people in Australia. The applicant claims his apartment was broken into, and items were damaged or removed, and that a pistol was placed in his apartment to incriminate him. He was subsequently questioned at the police station.
The same person who had approached him earlier, gave him a list of people living in Australia, showed him photos, and requested that he obtain information regarding their location.
The Tribunal
While the Tribunal accepted that the applicant’s claims relating to the incident in 1991 possibly did occur, the Tribunal found that the applicant’s other claims lacked plausibility. In particular, the Tribunal considered it implausible that after fifteen years, the SBU would approach the applicant in the Ukraine and give him instructions to attend the Russian Orthodox Church in Croydon in Sydney, and locate four people. This was especially so because the applicant was unable to provide detail as to why, if the SBU already had knowledge that the people lived in Croydon, the SBU could not locate the people without his assistance, and because the applicant could not explain why the SBU would seek him out, other than that: “he had good communication skills, was going to Australia and he already had experience with the KGB.” (CB 175.7).
The Tribunal also relied on the fact that the applicant could not suggest a reason as to why the SBU did not utilise the Ukrainian Ministry of Foreign Affairs in Australia, ultimately concluding that it was: “implausible that the SBU would approach the applicant based on his past experience (or, in the Tribunal’s view, lack thereof) and current employment and expect that he would be able to attend Church and find four people within the applicant’s limited and unpredictable shore leave. In the Tribunal’s view, the applicant’s claims are bordering on the fanciful and without any objective basis” (CB 175.8).
The Tribunal considered the country information provided by the applicant, but found that the generalised reports did not assist the plausibility of the applicant’s case (CB 176).
The Tribunal therefore rejected the central aspects of the applicant’s account. That is, it was not “satisfied that the applicant has been approached fifteen years later by the SBU or by anyone else in November 2006 or that any of the events in November 2006 as described by the applicant occurred” (CB 176.6). In all, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations, and therefore affirmed the decision under review.
Application to the Court
The applicant’s amended application filed on 10 January 2008 is in large part in the form of submissions, nonetheless the following grounds appear to be asserted:
1)A breach of s.424A of the Act.
2)The Tribunal’s reasoning was unreasonable.
3)The Tribunal was biased.
In an outline of submissions filed on 8 March 2008, the applicant seeks to rely on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) (see paragraph [3] of submissions) and asserts that the Tribunal failed to accord procedural fairness in that it did not give him the opportunity to address the “determinative issues” in relation to the decision under review (paragraph [15]). I understood the applicant’s complaint, therefore, to be asserting a breach of s.425 of the Act.
Hearing Before the Court
At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Russian language. Ms Nanson appeared for the first respondent.
At the hearing, the applicant pressed his complaint regarding procedural fairness, and submitted that his case was “exactly identical” to SZBEL. The applicant complained that the Tribunal found that he was “an untruthful witness”, and that the only reason that the Tribunal found against him was that it found “a few arguable points in my case”. The applicant’s complaint was to assert that the Tribunal reached the conclusion that it did because it could not understand “a few of the aspects in my case”. The applicant characterised this as a misunderstanding which then led it to fail to understand that “some issues”, which the Tribunal misunderstood, did have “answers”, but in spite of this the Tribunal found against him.
The applicant also confirmed that he wished to rely on the matters raised in the amended application.
Ground One – Section 424A of the Act
The applicant’s first ground is that the Tribunal failed to comply with its obligation under s.424A(1) of the Act. In particular, I note that the applicant refers to s.424A(1)(b), and claims that the Tribunal failed to draw to his attention to information which was the reason for affirming the decision that was under review.
In this regard, the applicant makes reference to what was said in the Tribunal’s “Findings and Reasons”, and made reference to:
1)That the SBU knew people who lived in Croydon, but were not able to establish their address.
2)The SBU did not turn to the Ukrainian Ministry of Internal Affairs in Australia.
3)The applicant was not able to elaborate on why the SBU would approach him except to say that he had good communication skills, was going to Australia, and already had experience with the KGB.
The applicant submits that this was information that the Tribunal used to arrive at its conclusion that the applicant’s account was implausible (except perhaps for the events in 1991), and that therefore, as this information formed the reason, or part of the reason, for the Tribunal affirming the delegate’s decision, the Tribunal was obliged (pursuant to s.424A(1)) to put such information to the applicant for his comment.
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) the High Court considered the meaning of “information” for the purposes of s.424A (see in particular SZBYR at [17]-[18]).
First, it must be noted that to the extent that the Tribunal’s decision relied on independent country information, such information, being of a non-in personam nature, falls within the exception contained in s.424A(3)(a) from the obligation in s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264). Further, information provided by the applicant himself, either by way of oral evidence given at the hearing, or the country information provided by the applicant himself, and even the information contained in the applicant’s submissions to the Tribunal, is all information that was provided to the Tribunal for the purposes of the review, and plainly falls within the exception contained in s.424A(3)(b) from the obligation contained in s.424A(1) of the Act (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [3], SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24 at [50]).
The applicant seeks to characterise certain matters appearing in the Tribunal’s “Findings and Reasons” as “information” for the purposes of s.424A(1). Unfortunately for the applicant (and those whom he said assisted him in the drafting of the amended application), this misunderstands the nature of “information” for the purpose of s.424A, particularly in light of what was said by the High Court in SZBYR.
Each of the matters (as set out above at [19]) are not “information” for the purposes of s.424A, but are, on any plain reading of the Tribunal’s decision record, part of the Tribunal’s reasoning process, that is, its evaluation of the claims and evidence put by the applicant. As the High Court said in SZBYR (at [18], and the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, per Finn and Stone JJ at [24]). These are not “information” for the purposes of this section. I note also the reference in the first respondent’s submissions to SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 at [30] (and the authorities there cited) for the proposition that the provisions of s.424A do not require the disclosure of the Tribunal’s subjective thought processes, or evaluative conclusions.
The Tribunal did not say that the SBU knew four people who lived in Croydon, but they were not able to establish their addresses as the applicant now seems to assert was a factual finding. Rather what the Tribunal reasoned was that the applicant had claimed that the SBU wanted him, while on shore leave in Australia, to go to Croydon and locate these four people. The Tribunal reasoned that: “[t]he applicant was not able to elaborate on why if the SBU already knew the four people lived in Croydon they were not able to establish their address” (CB 175.7).
Further, the applicant asserts that the Tribunal said that the SBU did not turn to the Ukrainian Ministry of Internal Affairs in Australia. In the same way as in the first instance immediately above, the Tribunal reasoned on its way to reaching its conclusion that the applicant’s claim was implausible that, amongst other things, the applicant in making this claim: “was not able to elaborate on why the SBU had not turned to the Ukrainian Ministry of Foreign Affairs in Australia” (CB 175.8). Again, this is plainly part of the reasoning or evaluative process carried out by the Tribunal.
The applicant also asserts as his third particular of what he says is “information”, that the Tribunal stated: “[t]he applicant was not able to elaborate on why the SBU would approach him, except to say that he had good communication skills, was going to Australia and already had experience with the KGB”. This instance, yet again, is plainly part of the evaluation carried out by the Tribunal of the applicant’s claim. The Tribunal was plainly entitled to consider why the applicant would be approached by the SBU in the way that he said he had been. In this regard, the Tribunal said: “[t]he applicant was not able to elaborate on why the SBU would approach him except to say that he had good communication skills, was going to Australia and he already had experience of the KGB” (CB 175.7).
In all, therefore, what the applicant seeks to characterise as “information” for the purpose of s.424A(1) is, with reference to relevant authority, not “information” for the purposes of that section given that the instances on which the applicant seeks to rely are part of the Tribunal’s subjective thought processes, or even could be characterised as its evaluative conclusions, which are not “information” for the purposes of s.424A. This ground, therefore, does not succeed.
Ground Two – Failure to Bring an Open Mind
The applicant’s second ground is that the Tribunal did not bring an open mind to considering his evidence and claims. Properly understood, therefore, this is a claim that the Tribunal was biased. The applicant asserts that the Tribunal was biased because its reasoning was “exceedingly unreasonable”.
Such a claim is, of course, a very serious assertion to make about the Tribunal. It must be clearly made, and requires evidence to be made out (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17).
The applicant appears to rely solely on the Tribunal’s decision record in this regard, in that he asserts that it was the Tribunal’s reasoning that reveals it did not bring an open mind. Such a complaint, as presented by the applicant, does not succeed in the circumstances of this case. The mere fact that the Tribunal made findings adverse to the applicant does not of itself amount to bias (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21], SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) at [38], per von Doussa J). It is, of course, a rare circumstance that such a claim can be made out with reference only to the Tribunal’s decision record (SCAA).
Further, the applicant’s complaint that the Tribunal’s reasoning was “exceedingly unreasonable” appears to be based on no more than the applicant’s assertion that the “questions” posed by the Tribunal (the applicant characterises the matters already referred to above as “questions” posed by the Tribunal), that “no person would be able to elaborate on these”. He gives as an example that he could not know why the SBU did not turn to the Ukrainian Ministry of Internal Affairs in Australia.
In my view, the applicant misrepresents the Tribunal’s analysis in this regard. The Tribunal was plainly focused on the applicant’s claims to have been approached by the SBU, and was asked by them that when he came to Sydney, to go to Croydon to locate certain people. In assessing this claim, it was plainly relevant, and open, to the Tribunal to consider, and indeed, to seek explanation from the applicant, as to why the applicant would have been chosen for this task. In that regard, it was entirely appropriate for the Tribunal to ask the applicant (who it must be remembered was making these claims) to provide some explanation. I cannot see that the reasoning adopted by the Tribunal was “unreasonable” in this regard.
Ultimately, the applicant’s real complaint appears to be that he disagrees with the Tribunal’s reasoning. This, in the absence of anything else, and certainly in the circumstances of this case (and on any plain reading of the Tribunal’s analysis), is not sufficient to found a claim of unreasonable, or even irrational, or illogical, reasoning. Even to the extent that unreasonableness may be available as a ground of review to the applicant (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [34]-[37], NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [12], [129]-[134], [135]), I cannot see that the Tribunal’s analysis was unreasonable in the way that the applicant asserts, nor indeed otherwise.
In all, the applicant was given an opportunity at the hearing (see further below) and, indeed also, following the Tribunal’s letter sent to him after the hearing, to address the Tribunal’s concerns about his claims. I cannot see that the Tribunal did not bring an open mind to the proceedings, nor that (whether available to the applicant or not as a ground of review) its thinking was unreasonable either in the circumstances suggested by the applicant or otherwise. This ground does not succeed.
Ground Three – Denial of Procedural Fairness and SZBEL
In his written submissions the applicant relies on SZBEL to argue that he was denied procedural fairness. The applicant’s argument in this regard follows a similar pattern as that relating to s.424A above. That is, the applicant makes reference to the Tribunal’s “Findings and Reasons”, raises aspects of the Tribunal’s reasoning which he again asserts to be “information” (see [19] above), and that based on that information the Tribunal arrived at a number of conclusions. In essence, the applicant’s submissions seek to separate the Tribunal’s reasoning process, essentially as set out at CB 175 .5 to CB 176. 4, from the Tribunal’s concluding or summarising paragraph at CB 176.6 to CB 176.8.
In his submissions the applicant, quotes extensively from a number of paragraphs in SZBEL to argue that the Tribunal failed to give him the opportunity “to give evidence or make submissions about what turned out to be the main issue arising in relation to the decision under review”. The submissions appear to assert that the references in the Tribunal’s “Findings and Reasons”, characterised as information, and the subsequent conclusions, are in a factual sense, that is, the facts which he says were enunciated by the Tribunal, are “issues” as understood with reference to SZBEL.
I note that there is nothing in the submissions to link this complaint to s.425 of the Act. To the extent that the applicant’s complaints rely on a more general opportunity which he says he should be given, then clearly SZBEL is about the procedural fairness obligations pursuant to s.425 of the Act. That is, the Tribunal’s obligations relating to what are the determinative issues in relation to the review.
I should just note, in case the applicant’s complaint may be said to be more generally beyond what is in SZBEL, that the Tribunal did write to the applicant after the hearing, and made specific reference to issues that arose at the hearing, and specifically invited the applicant’s comments. An opportunity which the applicant plainly took up (see CB 157 to CB 160).
In essence, as I comprehend SZBEL, that procedural fairness obligations pursuant to s.425 of the Act require that an applicant is entitled to know the issue, or issues, that are determinative in the disposition of his application for a protection visa. The applicant is entitled to assume before the Tribunal that those issues that were determinative or dispositive before the delegate are the issues that are determinative or dispositive before the Tribunal. If there are other issues that are determinative before the Tribunal, the Tribunal is obliged in meeting its procedural fairness obligations to expose the issue to the applicant at the hearing before it.
The starting point in considering what are the issues arising in relation to the decision under review (s.425(1)) is to be ascertained first with reference to the decision of the delegate (see SZBEL at [35]). In this regard, the applicant’s claims before the delegate were essentially those as set out above (see [7]-[8]). That is, that in 1991 the applicant was approached by the KGB, 15 years later in 2006, after continuing “to work without incident for 15 years” (CB 58.8), the applicant was approached by someone who claim to be an SBU agent who produced a document signed by the applicant in 1991, and wanted the applicant to locate certain people in Australia. The applicant’s position was compromised by a handgun which was said to have been found in his apartment.
The delegate found the applicant’s claims to be implausible. In her reasons, the delegate stated (CB 64.8):
“I have considered the applicant’s claims and consider them to be lacking plausibility.”
The reasoning set out by the delegate that follows (CB 64.8 to CB 65.10) contains an analysis that explains why the delegate considered the applicant’s claims to be “lacking plausibility”.
While some aspects of the delegate’s reasoning may have differed from that of the Tribunal’s, it is plain that the applicant’s factual account of what he says occurred to him was rejected because the delegate found his claims to be implausible.
Any plain reading of the Tribunal’s decision record similarly reveals that this was the issue on which the Tribunal’s review of the delegate’s decision turned. The Tribunal plainly rejected the applicant’s claimed factual account of what he says occurred to him on the basis that it found the claims to be implausible (CB 175.5):
“In the Tribunal’s view, the applicant’s claims lack plausibility.”
What follows is the Tribunal’s reasoning as to why it formed that view.
The current case is not similar to the circumstances before the Court in SZBEL. In that case the determinative issues in the Tribunal’s assessment were not the issues that the delegate considered in rejecting the application. In those circumstances, the Tribunal’s failure to give the applicant a sufficient opportunity to give his evidence, or make submissions about what turned out to be: “two of the three of the determinative issues arising in relation to the decision under review” was found by the High Court to be a failure by the Tribunal to accord the applicant procedural fairness (see SZBEL at [44]).
I cannot see that this circumstance applies in the current case. The applicant would have been squarely on notice following the delegate’s decision that the determinative issue in his application at that time was that his claims were implausible. That is, the factual account of what he said had occurred to him, including the episode in 1991, and the subsequent approach by the SBU in 2005, were in all the circumstances implausible.
In his submissions, the applicant quotes from paragraph [43] of SZBEL:
“The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify those aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.”
Far from assisting the applicant in the circumstances of his case, the paragraph provides the answer as to why the applicant’s complaint does not succeed. The delegate in the current case based her decision on the issue that the applicant’s claims were implausible. The Tribunal did not rely on any other issue. The Tribunal similarly found that his claims were implausible. The applicant should have understood that the central and determinative question on the review was the implausibility of his claims, that is, the factual account of what he said had occurred to him. On this basis alone, the applicant’s complaint does not succeed.
However, the applicant’s complaint further, and in addition, cannot succeed because even if the delegate had not identified the implausibility of his claims as the central and determinative issue, it is quite clear on any plain reading of the Tribunal’s account of what occurred at the hearing (an account that the applicant has not challenged with any evidence brought to this Court, for example by way of transcript of the hearing), that the Tribunal squarely raised the adverse issue with him at the hearing.
After giving the factual account of what he said had relevantly occurred to him (CB 169.5 to CB 170.8), the Tribunal then began to question the plausibility of the applicant’s claims, beginning at about CB 170.9:
1)CB 171.1, the Tribunal said:
“[w]hen it was put to him his story may not be plausible … ”,
2)CB 171.4:
“[i]t was put to him that Yushchenko was regarded as a pro Western liberal reformer, and that individuals can and do criticise the government, why would the SBU be interested in people in Australia … ”.
3)CB 171.5:
“[w]hen it was put to him why the SBU would think he would be in a position to get the information, he stated …”.
4)CB 171.5:
“[w]hen told it may not be plausible the SBU could think that he could build a rapport with the people at the Church given is limited and unpredictable shore leave …”.
5)CB 171.7:
“[w]hen put to him if they already knew the suburb then why was it beyond them to find their address …”.
6)CB 171.7:
“[w]hen it was put to him it seemed he had been sent on a task that he had not been properly prepared to complete if they were at all professional …”.
First, I note that it is quite clear that those specific aspects of the applicant’s account that the Tribunal considered important to its disposition of the review, and which were plainly open to doubt, were put to the applicant, and the applicant was given the opportunity to expand on those aspects of his account (see SZBEL at [47]). But even further than just giving an indication in my view the Tribunal plainly put to the applicant that key aspects of his account were not plausible. Even if the delegate had not determined the application for a protection visa with reference to this issue, plainly the Tribunal left the applicant in no doubt.
The applicant’s submissions, particularly with reference to what is set out at paragraphs [2] and [12], is that the Tribunal should have put its adverse conclusions to the applicant for comment prior to making the decision.
Procedural fairness principles, and s.425 of the Act (with reference to SZBEL), do not oblige the Tribunal to act in this way. As the High Court said in SZBEL at [48]:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
Even on this basis, therefore, the applicant’s complaint does not succeed.
In all, the applicant’s claim to fear persecution if he were to return to the Ukraine, his factual account of what he said had occurred to him in the past, was plainly rejected by the delegate as being a set of implausible claims. The Tribunal gave the applicant the opportunity of a hearing, where it similarly raised concerns about the plausibility of his claims with him, and gave him the opportunity, not only at the hearing, but also it must be remembered, following the hearing, to address its concerns. On what is before the Court now, the Tribunal’s findings as to the implausibility of the applicant’s claims was clearly open to it on what was before it, and the Tribunal gave cogent reasons for this. In all, I cannot see that the applicant’s complaint rises above a complaint about the Tribunal’s findings, with which he plainly does not agree. In this sense the applicant seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
For the applicant to succeed before the Court, jurisdictional error would need to be found in the Tribunal’s decision. I cannot discern such error either on the basis as put by the applicant or otherwise. The application is therefore dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 30 June 2008