SZQOF v Minister for Immigration
[2012] FMCA 261
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQOF v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 261 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424AA, 424A, 425, 476 |
| Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 |
| Applicant: | SZQOF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1842 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 16 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1842 of 2011
| SZQOF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 27 July 2011 affirming a decision of the delegate of the first respondent not to grant the application a protection visa.
The applicant, a citizen of the Peoples’ Republic of China, arrived in Australia in August 2008 and applied for protection in November 2010. The application was refused and he sought review by the Tribunal.
He set out his claims for protection in a written statement accompanying his protection visa application and expanded on those claims in an interview with the delegate and at the Tribunal hearing. In essence, the applicant claimed to fear persecution in China from corrupt officials in his home town in Zhejiang Province. He claimed that his family had hereditary use rights over communal land in his home province, albeit he had been living in Fujian province since 2000 where his wife and children remained.
He claimed that in 2006 his parents were advised by the village chief that the land was to be acquired by the government, but that as they had promised the land to him he returned from Fujian to his home village to discuss the matter with the village chief. He was advised that the village Communist Party Secretary wanted the land for building.
The applicant claimed that in 2008 work started on the land. He complained to local authorities who became concerned that he would expose further corrupt behaviour. The police subsequently detained him for two days. He was only released after being forced to agree to the acquisition of the land for some compensation.
The applicant claimed he then wrote a letter to the petitions office indicating he wished to complain against the Communist Party Secretary and local officials and that the police came to his parents’ home looking for him, accused him of stirring up public emotions and breaching public order. He claimed to the Tribunal that after his father informed him of what had happened he decided to flee to Australia and that the authorities had visited his home some three times since he came to Australia.
The delegate refused the application, having regard to a number of matters including a lack of substantiating corroborative or documentary evidence for the applicant’s claim in relation to the land. The delegate found that the applicant was not a reliable witness and that his delay in applying for protection undermined the genuineness of his claimed fear of persecution.
The applicant was invited to attend a Tribunal hearing which was postponed to allow the Tribunal time to consider documents provided by the applicant’s agent, including a statutory declaration and copies of Chinese identity and household registration documents, an agreement for the exchange of land dated 2001 and various media articles. The applicant attended the postponed Tribunal hearing.
It is relevant to the grounds that the applicant relies on that the only evidence before the court in relation to the conduct of the Tribunal hearing is the Tribunal reasons for decision. The applicant did not avail himself of the opportunity that was afforded in these proceedings to put before the court a transcript of the Tribunal hearing.
The Tribunal account of the hearing is detailed. The Tribunal recorded that during the hearing it put the applicant on notice that his credibility and the credibility of his claims were critical issues. Not only did the Tribunal raise concerns about particular aspects of his claims and about aspects of explanations that he provided, but in addition it recorded that pursuant to s.424AA of the Migration Act 1958 (Cth), it put to the applicant particulars of information consisting of identified inconsistencies between information given by him in his application for a business short stay visa and the information provided in connection with his protection visa application, in particular about his occupation in China.
There is no suggestion of any failure to comply with s.424A of the Act. Further, even if inconsistencies were not required to be put to the applicant for comment under s.424A, it is clear that there would be no error in the Tribunal’s approach in putting such matters to the applicant for comment (See SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]).
In its findings and reasons the Tribunal accepted that the applicant was a national of China. It accepted his claim in relation to the acquisition of land held by his family. It found his evidence in relation to the land held by his family was consistent, that his passport and ID card and the family registration (Hukou) confirmed that he had lived in the home village claimed, that his claim that a Communist Party Secretary’s relative wanted to build on the land was consistent with country information he supplied, and that the resumption of land and corruption in the process were widespread in China.
However, while the Tribunal accepted that in such circumstances the applicant might have lost an expectation that the use rights to the land would become his, it found that on his own evidence the land was being acquired because the official’s relative believed the land had good “feng shui”, and that even if the land was acquired due to the Communist Party Secretary’s power, the applicant’s political opinion did not constitute an essential and significant reason for the acquisition of the land.
The Tribunal also had regard to the fact that the applicant had “his own business and life” in Fujian Province. It found that “the loss of an expectation” in circumstances “where the applicant was not himself farming the land and did not require the land in order to subsist, would not constitute harm of sufficient seriousness to amount to persecution”.
However the Tribunal did not accept the applicant’s further claims, in particular that he had been arrested or detained and then petitioned the authorities or that he had been sought by them. It found that such further claims were inconsistent or implausible and gave reasons for its findings. In particular, it found it “implausible that the authorities would continue to pursue the applicant to agree to the land acquisition when the rights to the land had not yet passed to him” from his father.
The Tribunal also found it difficult to reconcile the applicant’s claim that he thought the matter was finished in 2006 with his claimed reluctance to return to his home village to obtain documents to transfer his Hukou to Fujian Province, particularly as he told the Tribunal that he could return to his home area to renew his passport and ID card because he thought the matter was finished. The Tribunal found that when this inconsistency was put to the applicant at the hearing he did not explain it, but stated that the travel agent had arranged the passport and a friend had arranged the ID card.
The Tribunal also found the applicant gave inconsistent evidence in relation to his claimed arrest in 2008. He told the Tribunal that he had told the delegate that he had to be released within 48 hours because he had seen it on television, but told the Tribunal he was released because he agreed to consider signing a document. The Tribunal found that if the applicant was being held in order to intimidate him into signing a document it did not make sense for him to have been released without doing so.
The Tribunal also had regard to the evidence before it in relation to the applicant’s Hukou and that of his family. It recorded that the applicant claimed his wife had not transferred her Hukou to his home village because she was under marriageable age when they commenced their relationship, but that in 2006 their older child needed to attend school so they split her Hukou from her family and registered their two children. He claimed that while his father-in-law had asked him to transfer his own Hukou to Fujian, he did not do so because he was concerned the village authorities would require him to sign a land acquisition document in exchange for the necessary residence documents.
The Tribunal found that the Hukou for the applicant from his home village was issued in 2002. The Hukou from Fujian was issued in March 2006. The applicant had stated that his marriage was registered after that date. The Tribunal found that the Hukou which had been provided did not necessarily demonstrate that the applicant’s Hukou had remained in his home village after 2006. It found that although the applicant provided some further documents, such as an ID card, Hukou and land exchange agreement and indicated that he could obtain further documents and was aware they would support his claims, there was no arrest or extradition warrant or any documentary evidence provided that indicated that he had been detained or sought by the authorities.
The Tribunal also had regard to the fact that the applicant had not claimed that his family in Fujian had been contacted by the authorities in relation to his whereabouts since he had been in Australia until at the Tribunal hearing. It addressed his explanation that he had not made this claim earlier because he had not been asked. However in light of the fact that the applicant had provided two statutory declarations and had been interviewed by the delegate, the Tribunal was of the view that this would be an important detail that he would have included if it were true.
The Tribunal also found that the applicant’s delay in making the protection visa application and what it described as previous false claims made to the Department, gave rise to further credibility concerns. The Tribunal considered the applicant’s explanation that he had been advised by his previous migration agent that he should apply for business visas instead of a protection visa because he might not be believed and there might be ramifications for his family in China. However, the Tribunal had regard to the fact that from the applicant’s evidence it appeared that he had been “at least involved” in providing false information to the Department on previous occasions. When this was put to him under s.424AA of the Act the applicant claimed that he was not aware at the time that the information (about his employment) was false. However, he also told the Tribunal that he was agreeing with the interpreter who was sent by the agent and was telling him what to say.
The Tribunal acknowledged that in certain circumstances the fact that an applicant had previously given incorrect information to the Department did not necessarily lead to a conclusion that all their claims were false. The Tribunal was prepared to accept that the applicant’s family land use rights had been acquired without the family’s consent. However, in light of all its concerns the Tribunal did not accept the applicant’s claims that he returned to his home village to complain or that he was arrested or lodged a petition or that he was sought by the local authorities or by the authorities in Fujian in order to return him to his local area.
It addressed the applicant’s claim that the authorities might harm him on return to China because they would be afraid he would petition. It had regard to the fact that he had not done so from the relative safety of Australia and in light of its findings in relation to his credibility, the Tribunal did not accept that the applicant would petition if he were to return to China now, some three years later.
The Tribunal concluded that it did not accept that the applicant had been arrested in the past, that he had in the past petitioned in relation to the acquisition of land to which his parents held usage rights, nor that he would do in the future. Hence the Tribunal did not accept there was a real chance the applicant would face serious harm amounting to persecution for reasons of an imputed political opinion if he were to return to China now or in the reasonably foreseeable future.
The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason and affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 22 August 2011. The application contains three generally expressed and unparticularised claims. However the applicant also filed an affidavit attaching copies of the decisions of the Department and the Tribunal, sections in the Migration Act and a document described as a Statement (Annexure E) which contains what are clearly intended to be grounds or submissions. In addition the applicant handed up a written document in the nature of a submission and made oral submissions.
I have considered all of the claims made by the applicant in these various ways. I note first that insofar as it appears from the application that the applicant may be seeking review of the decision of the delegate as well as the Tribunal decision, no grounds are given in the application for review of the delegate’s decision. In any event, under s.476(2)(a) of the Migration Act this court has no jurisdiction in relation to a primary decision, which by s.476(4) is a privative clause decision or purported privative clause decision that is reviewable under Part 7 of the Migration Act. The delegate’s decision was reviewed by the Tribunal and I have considered all of the grounds the applicant raises in relation to the Tribunal review.
It is convenient to deal first with the generally expressed grounds in the application for review. Ground one is that the Tribunal acted unjustly and “in contradiction to s.420 – (1)(2)(a)(b)”. This is clearly intended to be a reference to s.420 of the Migration Act. There are no particulars to this ground. As expressed it is not made out as s.420 does not mandate specific provisions to be observed by the Tribunal or the method by which it is to reach its decision. It provides that the Tribunal in carrying out its functions is to pursue the objective of providing a fair, just, economical, informal and quick mechanism of review. It is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case.
However, even if there was a failure on the part of the Tribunal to observe the procedures required by s.420 (which has not been made out) the decision would not be reviewable on that basis (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [63]). Insofar as this ground amounts to a contention of actual or apprehended bias it is considered further below.
Ground two is that the Tribunal “has not fulfilled its obligations under s.424” of the Migration Act. Again, there are no particulars. Section 424 empowers the Tribunal to get any information it considers relevant. However, the only limitation on its power is that if it does so it must have regard to that information in making the decision on review (Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 439; [2009] HCA 30 at [37]). There is nothing in the material before the court to suggest that the Tribunal failed to have regard to any information it obtained that it considered relevant. This ground is not made out. Insofar as the applicant seeks to rely on s.424 in support of the proposition that the Tribunal erred in failing to accept his claims or contentions, such a claim seeks impermissible merits review.
The third ground in the application is that the Tribunal breached s.422B for “not accepting my new evidence.” Again, this ground is not particularised. There is nothing in the material before the Court to suggest that the Tribunal failed to have regard to material put before it by the applicant in a manner constituting jurisdictional error. It is not entirely clear what is intended by the reference to s.422B of the Act, which provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with. Insofar as the applicant relies on subsection (3), which requires the Tribunal to act in a way that is fair and just in applying the Division, this is an exhortation of the same nature as s.420 of the Act. The contention that the Tribunal was biased or that there was apprehended bias, is considered below. However as expressed in the application, ground three is not made out. In particular it has not been established that there was any failure by the Tribunal to comply with the procedural code in the Migration Act.
More generally, as the first respondent submitted, the Tribunal considered all of the applicant’s evidence, including the statement accompanying his protection visa application, the evidence he gave at the interview with the delegate, his written submissions and the accompanying documents provided to the Tribunal and his oral evidence at the hearing. As set out above, the Tribunal accepted part of this evidence, particularly in relation to the applicant’s claim that his family’s and had been acquired by a Communist Party official, but on the basis of credibility concerns which it identified, and from its account of the hearing raised with the applicant, did not accept his further claims relating to the events that allegedly occurred thereafter.
It is well established (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at [281] to [282]; [1996] HCA 685) that the Tribunal is not required to accept an applicant’s claims at face value and that the weight to be given to his claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function. Credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67] per McHugh J). The Tribunal’s findings in that respect were open to it on the evidence before it for the reasons that it gave.
Insofar as the applicant’s contentions, both written and oral, take issue with the fact finding and conclusions of the Tribunal, he seeks impermissible merits review.
There are several specific complaints made by the applicant in the statement annexed to his affidavit of 21 August 2011 to the effect that the Tribunal erred in law as demonstrated in specified paragraphs of its record of decision. However the paragraphs identified are paragraphs in which the Tribunal recorded what occurred at the Tribunal hearing, (although there is also reference to this information being the “core unjust and prejudiced” for the decision made by the Tribunal in specified parts of its findings and reasons). The applicant raised a number of concerns about particular issues discussed at the Tribunal hearing, particularly relevant to the contention that the Tribunal was biased. I have also considered whether the circumstances establish an apprehension of bias.
Before turning to the specific matters raised by the applicant it is relevant to note that an allegation of actual bias has to be distinctly made and clearly proved (see the Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [70] per Gleeson CJ and Gummow J). It is a rare and exceptional case in which actual bias is demonstrated simply by reference to the reasons of the Tribunal. In this case there is no transcript of the Tribunal hearing and the only evidence of what occurred is the reasons for decision. I have also borne in mind that actual bias is a serious allegation involving personal fault on the part of the decision-maker (see generally the discussion in Minister for Immigration and Multicultural Affairs v Jia Legeng).
I have considered not only whether actual bias is made out but also whether apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, in particular at [27] – [29] from the perspective of the hypothetical reasonable lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to the apprehension of bias, is made out.
I note in that respect, relevant to the issues raised by the applicant, that the fact that the Tribunal raised concerns about his claims, even if it did so in a highly specific way and by onerous testing of his claims, would not necessarily amount to actual or apprehended bias. The expression of a preliminary view in the context of testing an applicant’s claims does not of itself amount to apprehended bias (see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185). It is the case that in certain circumstances fact finding can be conducted in a manner which can result in a reasonable apprehension of bias. For the reasons given both earlier and hereafter this is not such a case (cf NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115]). The applicant’s disagreement with the Tribunal conclusions and the specific issues to which I will turn do not establish that its fact finding was conducted in a manner that was “in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” as considered in NADH of 2001 at [115].
The first issue raised in the applicant’s statement refers to paragraph 57 of the Tribunal decision in which the Tribunal recorded that it raised with the applicant the fact that in his earlier visa application he had stated that he was working as a teacher. The applicant agreed and said that the agent made this up for him. The Tribunal asked him whether he was aware of this at the time. The applicant stated he had no idea, that three of them came together to Australia at the same time, others on the plane told him they were teachers so he was aware of this when he arrived. He did not know the details.
The applicant took issue with the fact that he had already stated in his original claim that his visa application to Australia was done by an agent in China and that, therefore, he did not know what the agent had filled in for him in the application form or documents provided to the Consulate to support the application. He claimed that the information he provided to the Tribunal in the hearing matched the information that was given for his occupation in the application to which the Tribunal referred, but that he had never acknowledged that he had known that they had used “teacher” as his occupation for the visa application. His concern about Tribunal questioning about his address and completion of forms in paragraph 58 of the reasons is again accompanied by a further explanation.
The applicant also took issue with the fact that in paragraph 59 of the decision the Tribunal recorded that at the hearing it had raised with him a concern about whether he had been telling the truth in his answers to the Department. It did so after noting that the applicant’s statement indicated that he did not know anything about what his previous agent was doing, whereas his evidence at the hearing appeared to the Tribunal to indicate that he was actively involved in false claims to extend his claims in Australia. The applicant provided an explanation that he had been told to apply for a Subclass 457 visa and was aware that his agent had tried to extend his stay.
The Tribunal noted that if he was saying what the interpreter told him to say (as he had claimed), he might not have been telling the truth in his answers to the Department. The Tribunal asked the applicant whether he had told the Department officer information that was not correct and the applicant stated that he thought so because the interpreter “told him what to say”.
I note again that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The questioning that the applicant took issue with in the hearing related to whether previous false claims had been made to the Department. In the Tribunal’s findings and reasons it acknowledged that the applicant claimed that he was advised by his previous migration agent that he should apply for business visas rather than a protection visa because he might not be believed and there might be ramifications for his family in China. However it found from the applicant’s evidence at the hearing that it appeared that he had “at least been involved” in providing false information on previous occasions, although when the information about his occupation was put to him under section 424AA (that previous visa applications had described him as a teacher and a Project Manager, Entertainment and Education) he had said that he was not aware at the time the information was false.
It was open to the Tribunal to have regard to the fact that the applicant had also told it that he had agreed with the interpreter who was sent by the agent and was telling him what to say. Contrary to the applicant’s contention in the statement annexed to his affidavit the fact that the Tribunal raised these issues with him does not constitute what he describes as an “absolutely malicious accusation” by the Tribunal that he was actively involved in false claims to extend his stay in Australia that in some way constitutes jurisdictional error. The concerns that the applicant raises about the fact that the issues were raised with him at the Tribunal hearing, the manner in which the Tribunal had regard to such matters in its findings and reasons and its view of the applicant’s involvement in the provision of false information is not such as to establish that the Tribunal erred in law. Rather, the applicant seeks merits review. Nor do these matters considered individually or cumulatively with the other concerns expressed by the applicant, establish predetermination constituting actual bias or apprehended bias from the perspective of the appropriately informed reasonable lay observer. The fact that the Tribunal raised matters of concern and the applicant provided an explanation at the hearing which was not accepted does not establish jurisdictional error.
As indicated, it was open and indeed proper, for the Tribunal to raise concerns with the applicant about aspects of his claims and evidence. The fact that the applicant now provides another explanation and disagrees with the view taken by the Tribunal is not indicative of jurisdictional error. Again, insofar as the applicant claims that he never said particular things, there is no evidence to support such claim.
The applicant also complained about the fact that the Tribunal (in paragraph 60) noted that issues may impact on the applicant’s credibility. The applicant stated that he understood. The applicant contended that it was unfair and prejudicial for the Tribunal to take the view that his credibility was in doubt, that this view had caused injustice to him during the assessment of his application and that the Tribunal should have kept an open and impartial attitude in its assessment.
As indicated, the fact that the Tribunal formed a preliminary view such as to warrant inviting the applicant to a hearing and putting to him concerns about aspects of his evidence, is not indicative of either actual or apprehended bias. There is nothing in the Tribunal’s account of the manner in which those issues were raised with the applicant to establish either actual or apprehended bias.
The applicant also complained about the fact that the Tribunal asked him questions about why he would not stay in Fujian (in paragraph 76), his claims that since he had been in Australia the authorities had visited his parents asking them where he was and the fact that this had not been mentioned before by the applicant. The applicant took issue with the fact that the Tribunal had regard to the fact that he had not mentioned this claim previously. He provided a further explanation for his failure to have mentioned such claims at an earlier stage. However, the fact that he now provides an explanation which is broadly consistent with the explanation he provided to the Tribunal, although elaborated on somewhat, for his failure to mention such claims at an earlier time does not establish jurisdictional error on the part of the Tribunal. The applicant seeks impermissible merits review. It was open to the Tribunal to have regard to the fact that a matter of some significance was not raised by the applicant in his earlier written statements or oral claims.
The contention that the Tribunal should be more “passionate” towards applicants I take to be a contention that the Tribunal should be more compassionate towards protection visa applicants. However the Tribunal cannot grant a visa on humanitarian or compassionate grounds.
The applicant submitted that the Tribunal hearing was just in case he might have missed out on some important and relevant claims in the documents already submitted. This claim does not establish legal error. The applicant was invited to a hearing as required under s.425 of the Migration Act. He had an opportunity to elaborate on his claims and to provide explanations for concerns that the Tribunal had in that respect. It was, however, open to the Tribunal to express and have regard to a concern about his failure to raise what it saw as a significant aspect of his claims at an earlier time. The applicant’s concerns in this respect do not establish jurisdictional error on the part of the Tribunal.
The applicant next complains about the Tribunal questioning in relation to the Hukou and ID issues recorded at paragraphs [82]-[87] of the Tribunal decision. He submitted that perhaps the Tribunal did not fully understand the system in China. He also took issue with the Tribunal’s reference to country information to the effect that document fraud was at a high level in Fujian Province and the fact that it put to him the issue of whether the purpose of maintaining his documentation as a resident of another province was to make it easier to travel by avoiding scrutiny. He did not agree with such an approach.
The Tribunal questioned the applicant about the family Hukou and the circumstances in relation to his place of registration at various times in light of his earlier claims and put to him that his renewal of his ID card and passport in 2006 would appear to indicate that he was not afraid to return to his home village at that time. The applicant provided an explanation. The Tribunal noted that aspects of his explanation were contrary to earlier claims and raised concerns in that respect. It also put to the applicant the country information indicating high levels of document fraud from Fujian and its concerns in that respect. The fact that it did so is not indicative of a closed mind or predetermination and nor is it such as to give rise to an apprehension of bias viewed from the perspective of the reasonable observer aware of the Tribunal procedures.
Nor does the fact that the Tribunal raised credibility concerns establish that it had made its mind up adversely in relation to the applicant’s credibility prior to the hearing as in essence he appears to be contending. Insofar as the Tribunal did reach some adverse credibility findings, such findings were open to it for the reasons that it gave on the material before it.
Finally, the applicant took issue with the matters the Tribunal put to him under s.424AA of the Act recorded in paragraphs 88 to 89 of the reasons. As indicated above, it may be that the Tribunal was not obliged to raise all of the matters it raised with the applicant under s.424AA of the Act. It was not indicative of bias for the Tribunal to attempt to comply with its obligations under the Migration Act. Even if the Tribunal put more material to the applicant than it was strictly speaking obliged to do so under s.424A of the Act, that is not indicative of bias in the form of prejudgment or such as to give rise to an apprehension of bias seen from the perspective of the appropriately informed observer aware of the procedures of the Tribunal.
It is the case that some aspects of the explanations given by the applicant at the hearing were matters relied upon by the Tribunal in its findings and reasons and in reaching its findings. The Tribunal did not accept all of the applicant’s explanations for certain matters. However the findings the Tribunal made are not such as to establish either actual or apprehended bias.
The concerns raised by the applicant in his written statement and as elaborated on in submissions today do not establish that the Tribunal fell into jurisdictional error, whether on the basis of actual or apprehended bias or otherwise.
Nor has it been established that there was no evidence for any of the Tribunal’s findings, insofar as the applicant appears to contend in the written statement he filed in court today that there was no evidence for the Tribunal’s findings as to his involvement in false claims to extend his stay in Australia. On the evidence of the Tribunal hearing contained in the Tribunal’s findings and reasons, such findings were open to the Tribunal on the material before it.
It has not been established that the Tribunal was biased against the applicant because he did not lodge his application for a protection visa as soon as he arrived in Australia. It was open to the Tribunal to have regard to his delay in lodging a protection visa application. It was not the only matter to which the Tribunal had regard and the Tribunal gave the applicant an opportunity to explain his delay. This is not a case in which the Tribunal simply reached an adverse decision on the basis of delay. Further, the Tribunal did not “collectively judge” the application as was contended. Rather it considered each aspect of the applicant’s specific claims. The Tribunal findings were, to a large extent, based on its adverse credibility findings, but as indicated above such findings were matters for the Tribunal and were open to it on the material before it for the reasons which it gave. Merits review is not available in this Court.
The applicant in submissions in reply appeared to take issue with the fact that he had cooperated and told everything to the Tribunal and suggested that as a result the Tribunal did not believe him at all. This seems to take issue with the Tribunal’s failure to accept his explanations. The fact that the applicant endeavoured to provide explanations to the Tribunal for matters of concern which were not accepted is not such as to establish jurisdictional error on the part of the Tribunal. There is nothing in the material before the Court to support the contention that the Tribunal reached an adverse decision because of the applicant’s co-operation alone. There were a number of matters that the Tribunal relied on of significance in its findings and reasons, in particular its findings about the inconsistency and implausibility of the applicant’s claims as to the events that he claimed occurred after the land acquisition issue arose.
As no jurisdictional error has been established on any of the bases contended for by the application, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant told the Court that he had no money and was unable to pay the costs sought at present. His lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining whether and when to seek recovery of such costs. The amount sought is less than the amount provided for in the Federal Magistrates Court Rules. I consider that it is appropriate in light of the nature of this and other similar matters.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Date: 3 April 2012
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