SZTNZ v Minister for Immigration & Border Protection

[2015] FCCA 2550

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2550

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal decision affected by jurisdictional error – whether the Refugee Review Tribunal findings lacked an evident and intelligible logic – whether the Refugee Review Tribunal decision disclosed apprehended bias –  whether the Refugee Review Tribunal failed to consider an integer of the applicant’s claims –  no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Applicant: SZTNZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2902 of 2013

Judgment of: Judge Emmett

Hearing dates: 3 March 2015
16 September 2015

Date of Last Submission: 16 September 2015

Delivered at: Sydney

Delivered on: 29 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Paul Cutler

Solicitors for the Applicant: Parish Patience

Counsel for the Respondents: Mr Benjamin O’Donnell

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2902 of 2013

SZTNZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 24 October 2013 and handed down on 25 October 2013 (“the RRT”).

2. The applicant claims to be a citizen of Bangladesh and a homosexual male involved in an ongoing homosexual relationship, who fears harm from his family, neighbours and religious people in Bangladesh.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 11 July 2007 having departed legally from Bangladesh on a passport issued in his own name and a student visa issued on 4 July 2007.

2. On 2 August 2010, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 30 May 2011, the Delegate refused the applicant’s application for a protection visa.

4. On 17 November 2011, a differently constituted Refugee Review Tribunal (“the first Tribunal”) affirmed the decision under review.

5. On 15 December 2011, the applicant filed an application in the Federal Magistrates Court, as this Court was then known, seeking judicial review of the first Tribunal’s decision.

6. On 3 December 2012, FM Cameron, as his Honour was then, made orders remitting the matter to the Refugee Review Tribunal for determination according to law.

7. On 24 October 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

8. On 22 November 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

5. Sections 36(2A) and 5 of the Act defines “significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the Refugee Review Tribunal.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the Refugee Review Tribunal is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the Refugee Review Tribunal which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s claims for a protection visa

1. The applicant provided a statement in support of his protection visa application in which the applicant claimed to be gay and in an ongoing relationship with a male partner that the applicant had known in Bangladesh. The applicant claimed that he and his partner had lived together in a relationship since the time of the applicant’s arrival in Australia.

2. The applicant claimed to fear harm from the police and other religious people in Bangladesh. The applicant further claimed that the community and his family in Bangladesh would not accept him being gay because homosexuality is forbidden throughout Bangladesh.

3. The applicant provided various pieces of material in support of his application, including statutory declarations, photographs of him and his partner and a letter showing that the applicant and his partner shared a bank account.

4. The applicant’s representative also made a submission that sexually explicit material of the applicant and his partner had been made available to the applicant’s representative and would be provided to the Delegate upon request.

Delegate’s decision

1. On 25 November 2010, the applicant attended an interview with the Delegate.

2. Following the interview with the Delegate, the applicant’s representative submitted an ‘Assessment of Sexual Identity and Relationship Status’ by Dr Paul Andrews, in which Dr Andrews noted that he had viewed the sexually explicit material of the applicant and his partner.

3. On 30 May 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion because the Delegate was not satisfied that the applicant was a genuine homosexual involved in a genuine gay relationship.

The RRT’s review and decision

1. On 18 March 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 7 May 2013 to give oral evidence and present arguments.

2. On 26 March 2013, the applicant responded to the hearing invitation and confirmed the attendance of the applicant, his representative and Dr Paul Andrews as a witness.

3. Prior to the hearing, the applicant submitted various statutory declarations, photographs of the applicant and his partner and a joint bank statement. The RRT also received an ‘Updated Psychosexual Report Assessment’ from Dr Andrews.

4. On 7 May 2013, the applicant attended the RRT hearing and gave evidence.

5. On 10 May 2013, the RRT wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it (“the s.424A Letter”).

6. On 24 June 2013, the applicant responded to the s.424A Letter.

7. At the hearing on 7 May 2013, the RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

8. The RRT found the applicant was not a credible witness and had instead fabricated parts of his claims for the purposes of obtaining a visa.

9. The RRT noted that numerous internal inconsistencies in the applicant’s evidence about his sexual orientation had arisen over time. In particular, the RRT found that the applicant’s account of his past sexual experiences changed over time.

10. While the RRT accepted that some of the internal inconsistencies in the applicant’s evidence could be explained by the combined effect of the passage of time and the need for the applicant to remember in some detail his past experiences, the RRT was not satisfied that this was sufficient to explain the “fundamental shifts” in the applicant’s claims.

11. The RRT found that the inconsistencies in the applicant’s evidence were deliberate attempts by the applicant to further his claim for protection.

12. The RRT further noted various inconsistencies between the evidence provided by the applicant and the evidence provided by the applicant’s alleged homosexual partner, Mr K, and the account of his sexual past provided in the report of Dr Andrews.

13. The RRT explored these inconsistencies with the applicant but was not satisfied by the applicant’s explanations.

14. The RRT accepted that the applicant and Mr K were friends and that they shared various aspects of their lives together, including co-habiting and sharing expenses.

15. However, the RRT was not prepared to accept that the combination of these factors was sufficient to overcome the problems that the RRT had found in the applicant’s evidence that he was gay or in a homosexual relationship.

16. The RRT was further prepared to accept that the applicant had attended a variety of gay clubs, parties and events around Australia. Based on sexually explicit images provided by the applicant’s representative at the hearing, the RRT accepted that the applicant had had intercourse with Mr K on one occasion.

17. However, the RRT did not accept that the fact that the applicant had had sex with Mr K on one occasion was sufficient to outweigh the deficiencies in the applicant’s evidence. Instead, the RRT found that the sexual activity depicted in the photographs was engaged in solely for the purpose of strengthening the applicant’s claims of to be a refugee. Therefore, pursuant to s.91R(3) of the Act, the RRT disregarded the applicant’s conduct in considering the applicant’s Convention based claims to fear persecution.

18. Ultimately, the RRT did not accept that the applicant was a homosexual, practiced homosexuality or was involved in a genuine homosexual relationship in Australia, or that he would engage in such practices were he to return to Bangladesh. The RRT found that the applicant would not suffer persecution by reason of his alleged homosexuality were he to return to Bangladesh. Accordingly, the RRT found that the applicant was not a person to whom Australia owed protection obligations.

19. The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. While the RRT accepted that the applicant had had sex with Mr K on one occasion and had attended various gay clubs, parties and events, the RRT found that there was no credible evidence before it that this conduct has or will become known to people in Bangladesh. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Bangladesh, there is a real risk that the applicant would suffer significant harm.

20. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Paul Cutler, of counsel.

2. On 7 March 2014, the applicant attended a directions hearing before me. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

3. On that occasion, the matter was set down for final hearing on 3 March 2015.

4. At the hearing on 3 March 2015, I raised with Mr Cutler and counsel for the respondents, Mr Benjamin O’Donnell, whether the RRT had failed to consider whether the applicant would be subjected to a real risk of significant harm were he to return to Bangladesh by virtue of his behaviour whilst in Australia. That is, whether, irrespective of the genuineness or not of the applicant’s claim to be a homosexual, the claim and conduct itself was sufficient to engender a real risk of significant harm within the meaning of the complementary protection provisions.

5. The matter was then adjourned part-heard and set down for further hearing on 16 September 2015. The parties were given leave to file submissions addressing the concern that I had raised with them.

6. On 28 April 2015, the applicant filed a further Amended Application.

7. At the commencement of the hearing on 16 September 2015, counsel for the applicant confirmed that the applicant relied on a second Further Amended Application. Counsel then confirmed to the Court that the only grounds upon which the applicant now relied are as follows:

   “1. The Tribunal has acted unreasonably in that:

   Particulars:

   a. its findings in relation to the Applicant's sexual orientation lacked an evident and intelligible justification; and

   b. caused the Tribunal to ask itself the wrong question or apply the wrong test in relation to whether it  was “satisfied” of the Applicant's claims for protection

   2. The Tribunal did not bring a fair and impartial mind to the decisions made.

   Particulars:

   a. The Tribunal conducted back to back hearings with SZTNZ;

   b. After finding that SZTNZ was not homosexual and not entitled to protection it was unlikely that any different view would be taken of the Applicant’s claim;

   c. The Tribunal has “cut and paste” many paragraphs of the SZTNY reasons for decision into the reasons for  the  Applicant's  (SZTNZ's)   decision.   A schedule of the identical paragraphs is annexed and marked “A”;

   4.  The Tribunal failed to consider an integer of the Applicant's claim for complementary protection, namely whether the Applicant's homosexual activities in Australia would give rise to substantial grounds for believing that there is a real risk of significant harm to the Applicant if he were removed from Australia.

   Particulars:

   The Applicant's  homosexual  activities  in Australia  were  known (or  suspected)   by various          members of the Bangladeshi community.”

8. Counsel for the applicant, Mr Cutler, informed the Court that the applicant did not rely on Particular (d) of Ground 2, or any of Ground 3.

Ground 1

1. The applicant’s complaint in support of Ground 1 arises from the following findings made by the Tribunal

   “118. Having considered all of the applicant's claims, both individually and cumulatively, the Tribunal does not accept that the applicant is a homosexual, practised homosexuality or is involved in a genuine homosexual relationship with [Mr K] or anyone else. The Tribunal does not accept that he engaged in sexual acts with other male parties in private or public. The Tribunal does not accept that he has visited any gay venues or has been involved in any homosexual activity in Australia, apart from the conduct that has been disregarded. Tribunal finds that the applicant is not homosexual and will not engage in homosexual activities in Bangladesh. The Tribunal finds that the applicant is not and will not be perceived to be homosexual, and will not engage in homosexual activities in Bangladesh. The Tribunal finds that there is no real chance that he will be harmed for the reason of his sexual orientation or any other Convention reason if he were to return to Bangladesh. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, or otherwise.”

2. Essentially, counsel for the applicant contended that the findings by the RRT that the applicant is not a homosexual or will not be perceived as a homosexual, and will not engage in homosexual activities in Bangladesh, were not open to it. In addition, counsel for the applicant contended that the RRT asked itself the wrong question by asking if the applicant was a homosexual or not, rather than whether it was satisfied that the applicant feared persecution by reason of his homosexuality.

3. I do not accept the submissions of the applicant. At the heart of the applicant’s claim to fear persecution is his claim to be a homosexual. The RRT made comprehensive adverse credibility findings in respect of the applicant’s evidence to be a homosexual and to fear harm for that reason if he was returned to Bangladesh. The RRT’s comprehensive adverse credibility findings led it to reject the applicant’s claims to have been a homosexual, practise homosexuality or be involved in a genuine homosexual relationship with Mr K or anyone else.

1. The RRT rejected the applicant’s claims to have engaged in sexual acts with other male persons, in private or in public or that the applicant had visited gay venues or been involved in homosexual activity in Australia.

2. In rejecting those claims by the applicant, it was open to the RRT to make positive findings that the applicant was not a homosexual and would not engage in homosexual activities in Bangladesh and would not be perceived to be a homosexual in Bangladesh, or that there was a real chance that he would be harmed for that reason or for any other Convention reason if he was to return to Bangladesh. Having rejected the applicant’s claims, it was not necessary for the RRT to go on to make the positive findings arising from the rejection of those claims. However, it was not a jurisdictional error for the RRT to choose to do so. Moreover, it was not unreasonable for the RRT to make the positive findings in light of its comprehensive rejection of the applicant’s claims.

3. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

4. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

5. A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

6. Accordingly, Ground 1 is not made out.

Ground 4

1. Counsel for the applicant conceded that in the event that the applicant is unsuccessful in Ground 1, he cannot succeed in Ground 4.

2. For the sake of completeness, the RRT noted that the applicant did not claim before the RRT that the homosexual activities in which he had engaged in Australia had or would become known to anyone in Bangladesh. The RRT found that having regard to the totality of the material before it, including the evidence disregarded pursuant to s.91R(3) of the Act in respect of the Convention claims, the RRT found that the applicant is not and will not be perceived to be homosexual and would not engage in homosexual activities in Bangladesh. Those findings were open to the RRT on the evidence and material before it and for the reasons it gave, particularly in light of the RRT’s comprehensive rejection of the applicant’s claims to be a homosexual.

3. Accordingly, Ground 4 is not made out.

Grounds 2 

1. As stated above, the applicant’s alleged partner, Mr K, also claimed to fear harm in Bangladesh by reason of his homosexuality and had a separate review application before the RRT in respect of a decision by a delegate of the Department not to grant him a protection visa.

2. Counsel for the applicant contended that the RRT did not bring a fair and impartial mind to its decision because it conducted back to back hearings with Mr K and the applicant. Counsel submitted that,  having found that Mr K was not a homosexual and not entitled to protection, it was unlikely that any different view would be taken of the applicant’s claim. Counsel also submitted that the RRT cut and pasted many paragraphs of the reasons for its decision in respect of Mr K.

3. In relation to what counsel for the applicant referred to as “piggy back hearings”, the RRT complied with the relevant statutory requirements of Division 4 of Part 7 of the Act. It was open to the RRT to adopt a process which was designed to deal with two matters with inter-related issues.

4. The RRT noted that in support of his application, the applicant submitted two statutory declarations in which the applicant claimed to be a homosexual and involved in an ongoing homosexual relationship with Mr K. The applicant claimed to fear facing serious harm in Bangladesh by reason of his homosexuality. The RRT noted that Mr K made a separate application for a protection visa and that a review application of a refusal of that protection visa was also before the RRT. However, the RRT noted that Mr K’s application was the subject of a separate decision. A copy of the RRT’s reasons in respect of Mr K was tendered by the applicant and marked Exhibit 1A. Exhibit 1A makes clear that Mr K’s claims for protection were the same as those of the applicant. Exhibit 1A also makes clear that both the applicant and Mr K relied on the report of Dr Andrews in support of their claims.

5. Because of the inter-related claims, it is common ground that the RRT heard evidence from Dr Andrews in the presence of each of the applicant and Mr K. Thereafter, the RRT essentially conducted separate hearings in respect of the claims made by Mr K and the claims made by the applicant, respectively. The RRT provided separate decisions and reasons.

6. I do not accept that such a process by the RRT ensured that it would not have been possible for one applicant to succeed and the other fail, contended for by the applicant in written submissions. It is quite possible that the RRT could have found that one of either the applicant or Mr K was a homosexual, just as it was possible that the RRT may find that both were homosexuals or neither were homosexuals.

7. It is clear from both decisions that on 10 May 2013, the RRT wrote to the applicant and Mr K inviting them to respond to inconsistencies in relation to matters raised in the information provided by the applicant to the Delegate, information in Dr Andrews’ report and the evidence of Mr K at the interview with the Delegate and at the review stage. This letter was sent in compliance with s.424A of the Act. The s.424A Letter made clear that the RRT may disbelieve the applicant’s claims and find that he is not a truthful or reliable witness, that he is not gay, that his claim to be a homosexual is a fabrication, that he has manufactured evidence to strengthen his case for protection, that his claimed homosexual relationship with Mr K is not genuine and that Mr K’s evidence in relation to his homosexual relationship with the applicant was not credible.

8. Further, the RRT in its s.424A Letter referred to evidence from Mr K that was inconsistent with the applicant’s claims in relation to his prior study and his relationship with Mr K generally, suggesting that the applicant had fabricated his claims to achieve a migration outcome. The RRT’s s.424A Letter addressed similar propositions in relation to the applicant’s claims of other sexual experience in Australia, his intention to travel to Australia and evidence from his witness that the RRT ultimately found to be inconsistent with that of the applicant.

9. The RRT ultimately rejected the applicant as not being a credible and truthful witness on the basis of internal inconsistencies in the applicant’s evidence throughout the process, inconsistencies between the applicant’s evidence and the evidence of Mr K; and the unconvincing nature of key parts of his claims as well as other reasons referred to by the RRT.

10. If the claims of either Mr K or the applicant had been accepted by the RRT, they had the potential to be corroborative of each other’s claims rather than unsupportive of those claims. I do not accept that simply because the RRT ultimately rejected the claims of each, that the RRT did not bring a fair and impartial mind to the findings that it made.

11. In relation to the particular in support of the allegation of an apprehension of bias that the RRT cut and pasted many paragraphs of the decision in respect of Mr K and the decision in respect of the applicant, I accept the submissions of counsel for the first respondent that a consideration of each of the decisions of the RRT in the case before this Court and in relation to Mr K demonstrates that the RRT consciously considered each applicant’s claims and the evidence before it in performing its review functions under the Act.

12. The applicant annexed a schedule of paragraphs that the applicant contends are the “cut and paste” paragraphs in respect of each of the decisions.  A close comparison of the paragraphs referred to makes clear that the RRT tailored the paragraphs to the relevant parts of each of the applicant and Mr K’s cases. To the extent that the procedural history was the same, a repetition of the identical procedural history does not reflect apprehended bias in respect of those uncontested background facts.

13. A fair reading of each of the decision records makes clear that the RRT considered in detail the claims for protection made by each of the applicant and Mr K. The similarity in much of the evidence and claims is unsurprising given that each was asserting a homosexual relationship with the other. Repeating those common factors in its reasons does not by itself give rise to an apprehension of bias.

14. As stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. It is those adverse credibility findings that grounded the RRT’s rejection of the applicant’s claims for protection. As stated above, I do not accept that, simply because the RRT also rejected Mr K’s claims for protection, that it did not bring a fair and impartial mind to the consideration of the claims for protection of each of the applicant and Mr K.       

15. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  29 September 2015