SZTJC v Minister for Immigration & Anor

Case •

[2014] FCCA 2243

•

29 September 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2243
Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – possible allegation of bias – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 424A, 424AA, 425, 476
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor [1994] FCA 1105; (1994) 34 ALR 347
SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449
SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ [2006] FCAFC 53
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Applicant: SZTJC
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2421 of 2013
Judgment of: Judge Nicholls
Hearing date: 18 July 2014
Date of Last Submission: 18 July 2014
Delivered at: Sydney
Delivered on: 29 September 2014

REPRESENTATION

Applicant: In Person
Appearing for the Respondents: Mr A Markus
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application made on 8 October 2013 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2421 of 2013

SZTJC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 October 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 September 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

  1. The applicant is a citizen of Fiji of Indo-Fijian ethnicity


    (“the Court Book” ‑ “CB” ‑ CB 2). She first arrived in Australia in April 1999 as the holder of a visitor visa. She has since returned to Fiji on a number of occasions, the last in 2003 (CB 7 and CB 33).

  2. She was granted a temporary spouse visa in 2002. She was refused a permanent spouse visa in 2006 after she admitted to having entered into a “contrived marriage” (CB 33).

  3. The applicant applied for a protection visa on 24 May 2012 (CB 1 to CB 25). She attended an interview with the Minister’s delegate, who subsequently refused the visa on 31 August 2012 (CB 26 to CB 44).

The Tribunal

  1. The applicant applied for review to the Tribunal on 4 October 2012 (CB 45 to CB 50). She was assisted by a registered migration agent (CB 47). She, and her representative, attended a hearing before the Tribunal on 7 June 2013 (CB 66 to CB 68).

  2. The applicant’s claims to protection were set out in her application for the visa (CB 7 to CB 10), at the interview with the delegate (CB 36), in written submissions made by her representative (CB 59 to CB 61), further materials submitted after the hearing with the Tribunal (CB 69 to CB 113), and at the hearing before the Tribunal.

  3. The applicant claimed to fear harm in Fiji because of her ethnicity and because she was a single woman. This harm was said to emanate from indigenous Fijians and the “local SDL Group” (Social Democratic Liberal Party). I note that the Tribunal understood from the applicant at the hearing that “indigenous Fijians” and “SDL” were used interchangeably by her ([25] at CB 120).

  4. The Tribunal found that the applicant was not a credible witness ([11] at CB 118). A number of findings contributed to this. These included the long delay in applying for a protection visa after her arrival in Australia, the difficulty in accepting some of her claims, and the implausibility of some of her evidence.

  5. The Tribunal made the following findings:

    1)It rejected the applicant’s claim that she had been the victim of an attempted rape in 1998 ([19] at CB 119 to [24] at CB 120).

    2)It accepted that in 1994 indigenous Fijians destroyed machinery owned by her husband’s business on the basis that this was consistent with country information ([26] at CB 120).

    3)However, the Tribunal also relied on country information to find that there had been significant changes in Fiji since the applicant had left Fiji and that there was no evidence of ongoing harm or to find that such harm would happen again if the applicant were to return to Fiji ([27] at CB 120 to [28] at CB 121 and [30] at CB 121).

    4)It found that the applicant would not face harm in Fiji as a “single woman” because her husband would accompany her on return ([36] – [37] at CB 122).

    5)The Tribunal considered whether she would face harm as a woman and noted information regarding violence against women in Fiji. However, it found there was not a real chance of this happening to the applicant ([38] – [39] at CB 122).

    6)

    The Tribunal found that on the evidence there was not a real chance she would suffer harm because of police brutality


    ([40] – [41] at CB 122).

    7)It accepted that indigenous Fijians had demanded money from her, but found that this did not rise to serious or significant harm (see [42] at CB 122 to CB 123, [50] at CB 124 and s.36(2)(a) and (aa) of the Act).

    8)The Tribunal accepted that her purse had been snatched in a robbery in 2003. However, given that there was no evidence that she was particularly targeted, it again found there was not a real chance of serious or significant harm (see [42] at CB 122 to CB 123, [49] ‑ [50] at CB 124 and s.36(2)(a) and (aa) of the Act).

Application Before the Court

  1. The application to the Court refers to the grounds of the application as set out at an annexure to the application. That annexure is 11 typed pages in length. It does not plead grounds of review in any recognisable way. Rather, it is a long collection of assertions, often taking issue with findings of fact made by the Tribunal, without explaining any relevant legal error (see further below at [27]).

Before the Court

  1. At the first Court date in this matter on 4 December 2013, the applicant appeared in person and was assisted by an interpreter in the


    Fijian-Hindi language. I made orders which included orders for the filing of an amended application and any evidence by way of affidavit. No amended application has been filed. The applicant did file an affidavit made by her daughter on 12 February 2014 (see further below).

  2. At the hearing of this matter the applicant again appeared in person and was assisted by an interpreter in the Fijian-Hindi language. I granted leave to the applicant’s daughter to speak on the applicant’s behalf.


    Mr A Markus appeared for the Minister.

  3. The applicant sought to read and rely on the affidavit of her daughter made on 12 February 2014 which annexed what were said to be transcripts of the hearing before the Tribunal and the interview with the delegate.

  4. Although the Minister noted difficulties with the transcript of the hearing before the Tribunal (particularly, that there was no indication of how it was prepared), there was no objection from the Minister. The transcript of the Tribunal hearing (“T”) was read into evidence.

  5. The Minister did object to the whole of the transcript of the interview with the delegate on the basis of relevance. The applicant submitted that she pressed this transcript because, as I understood, she said it contained “points” that the Tribunal had “overseen”. I did not rule on this at the beginning of the hearing, so as to allow the applicant to develop what possibly appeared to be an argument that the Tribunal had “overlooked” aspects of the applicant’s claims made to the delegate. No such failure was developed in argument before the Court, let alone was ultimately demonstrated. In the circumstances, the Minister’s objection is upheld.

Consideration: Submissions before the Court

  1. The applicant’s submissions, through her daughter, did not assist in revealing jurisdictional error on the part of the Tribunal. This is because, despite the Court’s attempts to explain the relevant aspects of the nature of judicial review of an administrative decision, the submissions did not rise above a request for the Court to engage in impermissible merits review.

  2. The applicant’s daughter referred the Court to various parts of the applicant’s claims to protection as they emerged before the delegate and during the process of the review by the Tribunal (see for example CB 60 to CB 61, CB 72, [5] at CB 117, [11] at CB 118, [24] at CB 120 and further at [31] at CB 121 to [34] at CB 122, [42] at CB 122 and [48] – [50] at CB 124).

  3. The complaints were as follows. First, that the Tribunal was biased because it “attacked” the applicant’s credibility. The Tribunal’s findings as to credibility were all reasonably open to it to make on what was before it. The Tribunal gave cogent reasons for its findings and relevant conclusions on the applicant’s credibility which were probative of the material before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405). No legal error is revealed in these circumstances.

  4. Nor is bias made out simply because the Tribunal does not believe an applicant’s claims or evidence. The test for bias requires evidence that the Tribunal did not bring an open mind to the review (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR). No such evidence is before the Court. The Tribunal does not have to uncritically accept what an applicant puts to it (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). Bias is not revealed simply because the Tribunal did not do so.

  5. Second, the applicant submitted that the Tribunal should have found that the applicant had been the subject of “persecution” on the basis of “findings” set out at [31] (at CB 121) to [34] (at CB 122) of its decision record. These paragraphs of the Tribunal’s decision record refer to country information available to the Tribunal about general violence, or violence against Indo-Fijians in Fiji, and the applicant’s claim to fear harm on the basis of being a single woman in Fiji if she were to return to Fiji.

  6. In relation to the question of violence, the Tribunal referred to country information concerning ethnic tensions in Fiji and violence directed to Indo-Fijians, including reports provided by the applicant. The Tribunal found that although there may be “generalised” violence in Fiji, there was no indication that the applicant would be targeted or be a victim of crime or violence for reasons of her race or any other reason.

  7. The applicant’s complaint now is that, based on the country reports, the Tribunal should have found to the contrary. However, as the Tribunal’s finding was reasonably open to it, the applicant’s complaint does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

  8. In relation to the claim of harm arising from the applicant being a single woman in Fiji, the Tribunal found she would not be a single woman in Fiji. It gave reasons for this probative of the evidence before it. Again, this is only a challenge to the Tribunal’s factual findings.

  9. Third, the applicant complained that the Tribunal failed to take into account the applicant’s claims set out in submissions made to the Tribunal on 6 June 2013 (CB 60 to CB 61). In essence, these submissions were directed to the applicant’s family circumstances and the position of single women in Fiji.

  10. In the circumstances, and having regard to the Tribunal’s relevant findings at [34] (at CB 121) to [39] (at CB 122), the complaint that the Tribunal did “not consider” the applicant’s claims can only be understood as a complaint that it did “not accept” that these claims were such as to reveal a well-founded fear of persecution. As such, it is another request for impermissible merits review.

  11. Fourth, the applicant also complained that the Tribunal was in error in its findings in relation to the applicant’s claims that she had been the subject of demands of money and purse snatching, and that this was likely to occur in the future. Given that the Tribunal’s relevant findings (see [44] at CB 123 and [47] – [50] at CB 124) were all reasonably open to it, then, again, the complaint is a request for impermissible merits review.

Consideration: The Application before the Court

  1. The “grounds” of the application, as set out in the annexure to the application, can be said to be in two parts. The first part contains twenty (numbered) paragraphs. The second part makes various unnumbered assertions about procedural unfairness on the part of the Tribunal.

Part 1: Paragraphs 1 to 20

  1. Paragraphs 1 to 5 of the application, at best, appear to be background to the applicant’s application to the Court or general assertions which are not of immediate, or apparent, relevance to the Tribunal’s decision.

  2. For example, [2] of the application makes reference to Article 1F(a) (presumably of the Refugees Convention). This article seeks to exclude from protection persons who have committed serious crimes. There was no evidence before the Tribunal that the applicant had ever committed such a crime. As such, it has no relevance to the current case. These paragraphs, therefore, do not assert, let alone reveal, any legal error by the Tribunal.

  3. Paragraphs 6 to 19 of the application make references to various paragraphs in the Tribunal’s decision record. On their face most appear to be simply descriptive of what the Tribunal purportedly said. It may be that the applicant meant to, inferentially, complain about some of the findings contained in these paragraphs.

  4. At [6] of the application, the applicant may be said to take issue with the Tribunal’s reference to her spouse visa application. She asserts this was not relevant to the hearing before the Tribunal.

  5. The Tribunal reports at [12] (at CB 118) that it made such a reference at the hearing. However, as was made clear, the Tribunal did not further consider this in its analysis given other findings made by it. No legal error is revealed (see also at [62] – [63] below).

  6. At [7] of the application, the applicant appears to argue that the Tribunal took into account an irrelevant consideration. Namely, the delay in lodging her protection visa application. There is no legal error in the Tribunal finding that the delay was a relevant consideration (Selvadurai v Minister for Immigration and Ethnic Affairs & Anor [1994] FCA 1105; (1994) 34 ALR 347, SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449 and SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208). The questions posed for the Tribunal included whether the applicant’s claims were genuine such that s.36(2)(a) or s.36(2)(aa) of the Act could be satisfied. The Tribunal reasoned that if the applicant genuinely feared harm on return to Fiji she would have acted more precipitously to make her application for protection in the three years since her previous visa had expired ([18] at CB 119).

  7. Relevant to this, at [8] of the application, the applicant appears to seek to challenge the Tribunal’s finding that it did not accept her explanation, presumably in relation to matters put to explain the Tribunal’s concerns with her evidence and claims. No legal error is revealed in the circumstances where this finding was open to the Tribunal.

  8. Paragraphs 9 and 10 of the application ask the Court to make its own findings as to the prevalence of rape in Fiji, and again challenge the factual findings made by the Tribunal. It is not for the Court to intervene and substitute its own findings of fact for those of the Tribunal (Wu Shan Liang). The applicant again seeks impermissible merits review. No legal error is revealed.

  9. Paragraph 11 of the application, with reference to [24] of the Tribunal’s decision record (at CB 120), seeks to challenge the Tribunal’s finding that the applicant’s description of the claimed attempted rape was inconsistent and implausible. The applicant again seeks impermissible merits review from the Court of a factual finding made by the Tribunal. No legal error is revealed.

  10. Paragraphs 12 and 13 of the application ask the Court to refer to country information and find that the claimed destruction of the applicant’s house was an act of harm. This again seeks impermissible merits review. In any event, the Tribunal accepted her claim that her house had been destroyed in 1998 ([26] at CB 120).

  11. The real complaint here appears to be to challenge the Tribunal’s finding that the situation in Fiji had “changed significantly” since the applicant had left. This finding, which the Tribunal based on country information before it, was reasonably open to the Tribunal to make. Further, the choice and weight to be assigned to such information is for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]).

  12. At [14] of the application, the applicant disputes the Tribunal’s report that at the hearing “[t]he applicant agreed that the situation in Fiji was much better than it was around 2000” ([29] at CB 121).

  13. The transcript of the hearing shows that the applicant made no such express agreement (see T25 to T26). It is the case that the transcript shows that the Tribunal put that proposition to the applicant. What follows is that, when it asked the applicant specifically to comment on the changes it had outlined, it was reasonably open to the Tribunal to draw from the applicant’s answer that she accepted that changes had occurred, but that her health and personal circumstances were such that she would find it difficult to live in Fiji. See in particular (T26.1 to T26.3):

    “[Tribunal Member]: … Did you want to say anything about the changes that have happened in Fiji?

    [Applicant]: Because my health is that I am currently quite depressed and living there by myself I find it very difficult. Over here my son lives here and also my husband lives here.”

  1. At [14] of the application the applicant also complains that:

    “…the Tribunal should understand that the applicant has been in Australia for the last 13 years. The applicant was stressed and nervous…”

    This statement appears consistent with her answer to the Tribunal’s question. That is, she made no statement about significant changes in Fiji or otherwise, however, her concern was her own personal and emotional state. In all, therefore, I agree with the Minister’s submission that the applicant’s factual complaint before the Court is not made out.

  2. However, even if it were otherwise, it still would not assist the applicant in revealing jurisdictional error. Even if the Tribunal could be said to have misunderstood or misrepresented the applicant’s evidence in this regard such a wrong finding of fact, in the circumstances, and on at least a fair reading of its decision record, played no part in the Tribunal’s affirmation of the delegate’s decision.

  3. This is because the Tribunal relied on country information, which it put to the applicant, for the proposition that there had been significant changes in Fiji since she had left 13 years earlier. Any failure by the applicant to expressly respond to this proposition at the hearing was not adversely relied on by the Tribunal in its subsequent reasoning, as expressed in its decision record (Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [20] per North and Lander JJ with whom Katzmann J agreed).

  4. The applicant also complained, before the Court, that the interpreter “…may have wrongly interpreted that sentence”. However she did not say how this would lead to the revelation of jurisdictional error on the part of the Tribunal.

  5. Pursuant to s.425 of the Act, the Tribunal is required to invite an applicant to, and provide the applicant with, a “meaningful opportunity” to give evidence at a hearing. I respectfully note the guidance provided in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 (in particular, see [9] – [11] per Allsop CJ and [65] – [75] per Roberton J) and the direction provided in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 (see [71] – [81] per Griffiths J) to this Court in relation to errors in interpretation and its effect on procedural fairness.

  6. However, in the current case, the applicant does not assert that there was an error by the interpreter. Rather, that the interpreter “may have” made a mistake in interpretation. In these circumstances, there is no evidence before the Court to support that assertion, let alone make out that there was an error that could support the proposition that the Tribunal failed to afford procedural fairness in this regard to the applicant. No legal error is revealed.

  7. There is also an assertion at [14] of the application that the Tribunal should not have relied on country information that there would be elections in Fiji in 2014, unless it could “guarantee” this to be the case.

  8. The relevant test for the Tribunal in assessing whether the applicant meets either of the criteria at s.36(2) of the Act does not require it to “prove” or “disprove” any claim made by the applicant. Rather, the relevant tests are, first, the reaching of the requisite level of satisfaction that the criterion is met such that the visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208, Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ [2006] FCAFC 53).

  9. Second, one of reasonable foreseeability about the future, and the assessment of whether there is a real chance of harm occurring (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33). In this light the Tribunal is not required to give “guarantees” to an applicant. On what is before the Court, the Tribunal applied, and complied, with the relevant tests in this regard. No legal error is revealed.

  10. Paragraphs 15, 16 and 17 of the application, in effect, take issue with the Tribunal’s finding that on return she would not be a single woman in Fiji because her husband would be with her ([36] – [37] at CB 122). The applicant repeated before the Court that this would affect her husband’s business. This appeared to mirror what she put to the Tribunal (T27):

    “[Tribunal Member]: So you also said that you were afraid of going back to Fiji as a single woman.

    [Applicant]: Yes.

    [Tribunal Member]: But in your letter you said that he might accompany you to Fiji.

    [Applicant]: Because it will affect him because he is running a business here and he would have to close the business and there will be job losses because of that because he is employing the local people and they will lose their jobs.

    [Tribunal Member]: OK but the fact is if he does go back to Fiji with you you wouldn’t be living as single woman.

    [Applicant]: Yes he will be with me on a full time basis yes.”

  11. This complaint, therefore, seeks merits review of the Tribunal’s relevant finding of fact. The Tribunal’s finding was plainly open to the Tribunal on the applicant’s evidence to it. No legal error is revealed.

  12. Paragraph 18 of the application seeks to assert error in the way the Tribunal conducted the hearing with the applicant. I will address this later in relation to the second part of the annexure to the application. I note the reference here to [43] (at CB 123) was not explained, nor can I see its relevance.

  13. Paragraph 19 of the application refers to [44] (at CB 123) of the Tribunal’s decision record. The applicant appears to complain that the Tribunal should have accepted that her evidence about purse snatching amounted to serious harm pursuant to s.91R(1)(b) of the Act. In effect, the applicant again seeks impermissible merits review. No legal error is revealed.

  14. Paragraph 20 of the application misunderstands the nature of these proceedings. As stated above in relation to [9] – [10] of the application, the Court cannot substitute its own factual findings for those of the Tribunal. Further, it cannot do so and then reach a level of satisfaction that the relevant criteria are met such that the visa must be granted. As was explained to the applicant, and her daughter, a number of times, the Court cannot intervene and grant the applicant a protection visa. No legal error is revealed.

Part 2: Procedural Fairness

  1. The remainder of the “grounds” make various assertions in narrative form under the heading of “Procedural Unfairness”. The applicant’s “grounds” make reference to a number of authorities. I have attempted below to give some relevant structure to this narrative.

  2. First, the complaint appears to be that the Tribunal did not address “specific issues” with her at the hearing. The applicant does not say what specific issues should have been discussed and were not.

  3. In any event, as the High Court explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592, the Tribunal is required, in fulfilling its procedural fairness obligations pursuant to s.425 of the Act, to expose at the hearing those issues dispositive of the review which the applicant would not reasonably know to be live issues as a result of the delegate’s decision. Having regard to the Tribunal’s decision record, and the transcript of the hearing, those issues were discussed at the hearing and the applicant was given an opportunity to address them. Otherwise, any other issue was “live” as a result of the delegate’s decision.

  4. Second, the applicant asserts a breach of s.424A(1) of the Act. While the applicant makes reference to a failure to provide an opportunity to comment on “information”, the narrative explains that this was the “very nature of the evidence it relied upon” and that this is the “evidence that is used to highlight the inconsistency between the information held by the Tribunal and the [applicant’s] claims”. This may be a reference to country information put before the Tribunal. Country information relied on by the Tribunal, even if not provided by the applicant, falls within the exception at s.424A(3)(a) to s.424A(1) of the Act. If this is a repetition of the complaint addressed above that the Tribunal should have found for the applicant based on country information before it, then I rely on my findings set out above at [38] in relation to this.

  5. The nature of the term “information” as it appears in s.424A(1) of the Act was the subject of consideration in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”). What is clear is that if the complaint is a reference to any disbelief of the applicant’s evidence arising from inconsistencies in the evidence before the Tribunal then that is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]).

  6. Further, to the extent that it is implied that the Tribunal should have given to the applicant, in writing, its draft reasons for comment then no such obligation exists pursuant to s.424A or s.425 of the Act. Nor does the Tribunal’s disbelief of the applicant’s “version of the claim in relation to events in Fiji” amount to information for this purpose.

  7. In any event, if the applicant’s complaint is that she was not given the opportunity to comment on the matters adverse to her, then there is nothing in the Tribunal’s decision, or the transcript of the hearing, to support such a complaint. The applicant’s real complaint appears to be that the Tribunal did not accept that her claimed instances of past harm rise to serious or significant harm. As such, this says nothing about s.424A(1) of the Act, nor does it otherwise reveal jurisdictional error on the part of the Tribunal.

  8. In his submissions the Minister made reference to the information “relied” on by the Tribunal concerning the applicant’s visa history, the outcome of her application for a spouse visa, and that she had remained illegally in Australia from May 2007 to September 2010.

  9. On the evidence available to the Court, the Tribunal used the facility found at s.424AA of the Act to discharge any obligation arising from s.424A(1) of the Act in this regard (see [15] at CB 118 and see, for example, T28 to T38 and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). The applicant’s complaint that she should have been “served” with a s.424A notice misunderstands the requirements, application and the facultative effect of s.424AA of the Act.

  10. The applicant refers to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) to support the proposition that the Tribunal should have “brought any and all the evidence against her case to the attention of the [applicant]” by way of a “s.424A notice” (see also above).

  11. There may be situations where the reasoning in SZEEU may assist an applicant before the Court (see SZBYR at [16] and [21]). However, this is not such a case. The Tribunal made plain at the hearing with the applicant that the credibility of some aspects of her claims and evidence were at issue and gave her the opportunity to respond (see, for example, T30.9).

  12. In relation to this, the applicant also complained that it is “no defence on the part of the Tribunal to state that it allowed the applicant to state whatever she wanted”. The evidence before the Court reveals that the Tribunal gave the applicant the opportunity to give her evidence, put her on notice of matters of concern, and gave her the opportunity to respond. Ultimately, in spite of the applicant’s contention of “no defence”, it was for her to make out her case (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 and SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233).

  13. The applicant also asserts that the Tribunal was biased, or that a


    well-informed lay observer may reasonably apprehend that it had not brought an open mind to the proceedings (see references in the second part of the application to “Tribunal fixated with pre-determined conclusions” and “Tribunal was only conducting the hearing for the sake of conducting the hearing”). As stated above, the tests for bias and an apprehension of bias are set out in a number of authorities (see above at [19] and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  14. The difficulty for the applicant now is that beyond assertion, she has submitted nothing to the Court to particularise these serious allegations, nor has she provided evidence to show how they are made out.

  15. Such allegations must be supported by evidence. That is, they must be distinctly made and clearly proven (Jia Legeng at [69] per Gleeson CJ and Gummow J). There is nothing in the material before the Court to allow the Court to find that the Tribunal brought a closed mind to the proceedings or that a well-informed lay observer may reasonably apprehend that to be the case.

  16. In these circumstances, the applicant’s assertions again merely voice disagreement with the Tribunal’s analysis or seek to provide an explanation as to why her claims were not accepted.

  17. The applicant also complains, variously, that the Tribunal was “jurisdictionally wrong in the manner it questioned the applicant” and that it did not ask “specific questions” in relation to the applicant’s claim.

  18. Without further explanation or particulars, it is difficult to see what legal error the applicant could be said to be seeking to assert. No matter of legal concern arises from a reading of the transcript of the Tribunal hearing. Nor, that the Tribunal acted outside the proper exercise of its jurisdiction in the conduct of the hearing. The applicant does not satisfactorily explain what “specific” questions the Tribunal should have asked and did not. The transcript reveals that the applicant was given the opportunity to make out her case and to address the Tribunal’s concerns. No legal error is apparent here.

  19. The applicant also asserts that the Tribunal’s decision was unreasonable or irrational. Again, and at best, that assertion derives from the applicant’s dissatisfaction with the Tribunal’s analysis and conclusion. The Tribunal’s decision was based on antecedent findings which were all reasonably open to it on what was before it. In circumstances where minds may differ as to the outcome no unreasonableness or illogicality is made out (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611). Nor is the Tribunal’s decision unreasonable in the Wednesbury sense (Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).

  20. Finally, contrary to the applicant’s submissions before the Court, the Tribunal did apply the forward looking test of assessing future harm. The Tribunal’s expression of the relevant test was unremarkable and its application to the facts was reasonable (see also above at [48] – [49]). To the extent that the applicant asserted that the Tribunal should have found a real chance of future harm by having regard to claims of past harm, this does not rise above a further request for impermissible merits review.

Conclusion

  1. In all, the complaints raised variously in the application to the Court, and raised by the applicant’s daughter on the applicant’s behalf before the Court, do not reveal jurisdictional error. Nor is such error otherwise apparent. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  29 September 2014

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