SZTRU v Minister for Immigration

[2014] FCCA 2931

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2931

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal – whether the Tribunal did not consider a claim – whether Tribunal did not afford procedural fairness to the applicant – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424A, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
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 102

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Applicant: SZTRU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3211 of 2013

Judgment of: Judge Nicholls

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Sydney

Delivered on: 20 November 2014

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application made on 20 December 2013 and amended on 28 March 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $ 6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3211 of 2013

SZTRU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 December 2013 and amended on 28 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court today is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background to this case can be derived from that bundle of documents. 

2. The applicant is a citizen of India.  He arrived in Australia on 29 April 2008 as a student (CB 14).  He applied for a protection visa on 17 September 2012 (CB 1 to CB 45). His claims to protection were initially set out in a written statement attached to his application (CB 46 to CB 48).

3. The applicant claimed to fear harm if he were to return to India for circumstances arising out of his membership of the Student Islamic Movement of India (“SIMI”), and because of his marriage to a Hindu woman. The applicant’s difficulties in this circumstance was said to arise because of his Muslim faith. 

4. The applicant claimed that he became politically active at university supporting the rights of Muslims. He continued to be active, participated at rallies and was the supporter of political figures, who worked against Hindu “mobs” that perpetrated atrocities against Muslims.

5. The applicant claimed to have been targeted in his local area by the police and others, that is, others in the community since SIMI was banned in India. He claimed to have been detained by the police on one occasion, questioned about a bombing at a mosque and beaten.  Further, that his father was attacked in 2005 and taken to hospital.  The police would not accept the first information report from the applicant relating to this incident. Further, that the police also refused to accept a first information report in 2008 when he claimed he was attacked by three Hindus.

6. The applicant also claimed that after arrival in Australia he married a Hindu woman. His family did not accept this marriage, and he was pressured to divorce his wife. In the initial written statement, the applicant claimed that he and his wife decided to separate. However, and nonetheless, he continued to feel threatened from Hindu people for reason of his marriage if he were to return to India.

7. The Minister’s delegate refused the application for the protection visa on 14 January 2013. The applicant then applied for review to the Tribunal on 19 February 2013 (CB 81 to CB 86). He attended a hearing before the Tribunal on 21 November 2013.

8. A summary of the Tribunal’s key findings is found in the Minister’s written submissions, filed in these proceedings. Given what is set out in the Court Book, I am of the view that this is a fair summary and adopt this part of the submissions for the purposes of this judgment ([8] ‑ [9] of the Minister’s written submissions) :

   “[8] The Tribunal noted a number of issues with the credibility of the applicant’s account, finding key claims ‘highly implausible’ and lacking in internal logic. In particular:

   (a) the Tribunal found it ‘highly implausible’ that the applicant had been involved with SIMI, when he showed  ‘only the most superficial familiarity’ with the organisation despite claiming to have been committed to it for around 10 years (CB 146 [47]);

   (b) although the Tribunal accepted that the applicant’s father may have been  involved  in a motor accident in 2005, it did not accept that this was because he was a Muslim or because of the applicant’s claimed involvement with SIMI (which the Tribunal did not accept existed). The Tribunal noted that anyone who wished  to harm his father could have done so without  risking their own safety  in a road accident, and that the applicant’s account had all the hallmarks of a genuine accident (CB 146 [49]);

   (c) the Tribunal considered there was a ‘certain lack of logic’ regarding the applicant’s claim to have been interrogated by police regarding an attack on a mosque, given that he was a Muslim and it was unclear why the police would suspect him of involvement. In any event, on the applicant’s evidence this was the only occasion on which he was questioned, and he was released without charge. The Tribunal did not accept his late claim to have been restrained and beaten with batons, which he did not raise until the Tribunal hearing (CB  147 [50]);

   (d) while the Tribunal accepted that the applicant was assaulted in 2008, it was not satisfied that this was due to his religion or political opinion.  The Tribunal noted that on his most recent evidence, his attackers said nothing at all to him, which contradicted his account to the Delegate. The Tribunal also did not accept that he considered himself to be in danger in Hyderabad  now, given that he had returned there on two occasions (during which he had not been  harmed) (CB 147 [5 l ]-[52]);

   (e) although the Tribunal accepted that the applicant married a Hindu woman, it did not accept that there were any ongoing threats to him as a result of this relationship.  The Tribunal noted that the applicant had indicated to the Delegate that the issue was resolved after the couple’s separation, and found that his claims to fear harm were inconsistent with his conduct in returning to India (CB 147 [54]);

   (f) having considered available country information, the Tribunal  did not accept that being a Muslim in India was sufficient to give rise to a real risk of persecution or significant harm. (CB 147-149 [55]-[66]).

   [9] Accordingly, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.”

9. I also note that key to the Tribunal’s conclusion was the finding that the applicant had not been truthful about what the Tribunal described as his central claim, that is, to have been involved with SIMI, and that this ([48] at CB 146):

   “… cast a significant doubt on his other claims”

10. In addition to the summary in the Minister’s written submissions, I note the Tribunal’s finding in support of its conclusion that the applicant would not be in danger if he were to return to his home area. This finding was based on the fact that since coming to Australia he had willingly returned home on two occasions and stayed at his family’s home for four and six weeks respectively, without adverse incident ([52] at CB 147).

Application Before the Court

1. The grounds of the application put before the Court as amended, in essence, make several assertions, and then seek to explain these with references to particular parts of the Tribunal’s decision record:

   “1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a procedural mistake that it did not understand the significance of the claim. It also did not consider that the applicant would suffer harm as a member of the minority group. The Tribunal did not also investigate and consider to know the circumstances when radical people may be offensive. The Tribunal failed to provide any supporting evidence in support of its findings.

   Particulars:

   However I consider highly implausible his claim to have been involved with SIMI. That is because he showed only the most superficial familiarity with his organisation, far below the level one would expect of a person who has supported its aims and objectives for some 10 years and participated in activities in support of it in India for several years.

   It may be that he heard of its existence while at university but I do not accept that he was involved with SIMI at all. Therefore I do not accept that he was a participant in any of the money raising activities to which he referred (paragraph -47 of RRT decision)

   The fact that he has not been truthful about this central claim cast significant doubt on his other claim (paragraph -48 of RRT decision).

   If anyone wished to harm his father one would expect them to do so without jeopardising their own safety (paragraph -49 of RRT decision).

   Assuming that he was detained, this was an isolated incident which did not involve any serious harm and was never repeated (paragraph -48 of RRT decision).

   2. The Tribunal made a procedural mistake that it failed to provide information it collected from other sources which are the reason or part of the reason to reject his claim. The Tribunal did not [give] an opportunity to the applicant to give [an] opinion on those. The applicant was denied procedural fairness by the Tribunal. There are information which support the applicant’s claim but the Tribunal did not explain to the applicant why it used that information against him to reject his claim. The Tribunal does not know how to assess a claim like this. There are sufficient information that supports applicant’s claim but the Tribunal technically used that information to reject his claim.

   Particulars:

   I am not satisfied that he was seriously injured. I note his most recent evidence when he says that the assailants said nothing to him at all, a claim which directly contradicts his written and oral account of the incident to the delegate (paragraph -51 of RRT decision).

   3. The Tribunal failed to understand the applicant’s claim and made mistake to assess his claim. The Tribunal also contradicted its own findings with its own information because of not having sufficient experience to assess a claim for protection under UN Convention. The Tribunal made a mistake to assess the review application. The Tribunal knew and had information of religious discrimination in India and the applicant is the victim of religious discrimination. The Tribunal willingly rejected his genuine claim for protection because of his religion.

   Particulars:

   ‘although some laws and policies restricted this freedom’ (paragraph -57 of RRT decision).

   There were reports of social abuses or discrimination based on religious affiliation, belief or practice. At times violence between religious groups and organised communal attacks against religious minorities occur (paragraph -58 of RRT decision).

   The vast majority of citizens of all religious groups live in peaceful coexistence and are conscious of religious freedom and minority rights (paragraph -59 of RRT decision).

   There were cases of communal attacks on religious minorities and their property, and allegations of police brutality. In several instances those who had been attacked reportedly were arrested, and there were allegations that the police protected attackers, not the victims. In 2013 Human Rights Watch noted that religious minorities remain marginalised and continue to suffer discrimination because of government failure.

   I am satisfied his family members are going about their ordinary lives.

   4. The Tribunal made a mistake that the applicant’s claim determination procedure taken by the Tribunal is not supported by the Migration Act. The Tribunal’s process of assessment of applicant’s claim clearly shows that the Tribunal collected all relevant information in paragraph 56, 57, 58 &60 of RRT decision that supported the applicant’s claim but failed to consider in applicant’s favour and wrongly rejected his claim. The Tribunal’s collected information to reject the applicant’s claim and that information does not support its findings. The applicant has been denied procedural fairness by the Tribunal. The Tribunal mentioned in its decision that there are religious violations in India and government failed to save the victim. But the Tribunal wanted to reject the claim so it rejected the claim with its own contradiction. The applicant does not accept the Tribunal’s decision. The applicant submits that his claim is genuine and the Tribunal did not check his claim properly. The Tribunal willingly rejected his claim.”

   [Errors in the original.]

Before the Court

1. At the hearing of the matter today, the applicant appeared in person. He was assisted by an interpreter in the Hindi language.

2. As I sought to explain to the applicant today, for his application to succeed before the Court the Court would need to, at least, find some “legal mistake” in the Tribunal’s decision record.

3. When given the opportunity to address the Court, the applicant began by referring to a medical certificate that he said that he had provided to the Tribunal, and used this as the basis to complain that the Tribunal did not give proper consideration both to the incident that the certificate related to, and, more broadly, his claims. In relation to each of the grounds of the application, the applicant had nothing further to say, and I understood him to rely on what had been put in the amended application, which he said had been drafted with the assistance of a friend. He explained that the friend was not a lawyer.

Consideration: Complaint Before the Court

1. The matter of the medical certificate, is first addressed at [31] to [33] (at CB 144) of the Tribunal’s decision record. These paragraphs appear in that part of the decision record setting out the applicant’s claims, and how those claims were made and explained, at the hearing before the Tribunal ([31] – [33] at CB 144):

   “[31] The claims that he was knocked unconscious, that he had hospital treatment and that he tried to report the incident to the police were not made by him until his interview with the Department. This was because, he said at the interview, it would have been too much to write down and he intended to explain it during the interview. He later provided the tribunal with scans of a “Medico Legal Record” from the Osmania General Hospital in Hyderabad, and notes for an outpatient, each naming him and dated 1 January 2008. They described his injuries as a laceration on the chin and an abrasion on the face, and observed that he had alleged he had been beaten by an unknown person on 1 January 2008 at 1pm.

   [32] Invited to describe this incident at the tribunal hearing, he said that he had separated from his friends as he left a cafe in January 2008 and was walking alone towards his car. He had been assaulted and had fainted, waking up in hospital. He was not robbed. Noting that the medical records submitted by him only showed he had suffered an abrasion on his face and a laceration on his chin and had been treated in the outpatients department, I asked him if this meant he had not been hospitalised. He said he had not but that he had needed stitches. He showed me a scar on his chin.

   [33] I asked him if he thought his assailants had recognised him and how that could be if he did not recognise them. He responded that if it was a random attack they would not have beaten him up. They must have pre-planned it. Noting his written claim that they had said they would kill him and his family, he said that they had not said anything and he had found out nothing about them after the incident. Asked why he had told the delegate that after he went hospital he found out they had said they would kill him and his family, the applicant said that perhaps the interpreter had made a mistake. This had not happened.”

2. Those paragraphs reveal that the matter of the medical certificate, to which the applicant referred today, was discussed at the hearing. I note that, despite the opportunity provided to the applicant by an order made at the first Court date in this matter, the applicant has not provided any evidence to this Court, such as a transcript of the Tribunal hearing, to challenge what the Tribunal says occurred, or was said, at the hearing.  The only evidence before the Court, and to which the Court can have regard, is the evidence contained in the Tribunal’s own decision record.

3. In this regard, as stated above, the incident to which this medical certificate related was discussed at the hearing with the Tribunal. In context, it appears that the applicant provided this certificate to support his claim that he had been hospitalised in India. The Tribunal set out its findings in relation to this incident, where the applicant claimed to have been assaulted in 2008 by Hindus ([51] at CB 147). It is clear, as the Minister submitted today, that the Tribunal said it accepted that he was assaulted. However, the Tribunal did not accept that he had been assaulted and injured for the reason that the applicant gave. That is, that he was a Muslim, assaulted by Hindus, because he supported SIMI. 

4. The Tribunal gave reasons as to why it did not accept the applicant’s claim and, from what is before the Court, the Tribunal’s finding in this regard, was reasonable and was probative of the evidence before it. In these circumstances the applicant’s complaint, therefore, and indeed his broader complaints about the Tribunal’s non-acceptance of his claim to fear serious and significant harm, is no more than a disagreement with, or a challenge to, the merits of what the Tribunal found (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

Consideration: Grounds of the Application

1. Ground one of the application, as amended, asserts that the Tribunal made a procedural mistake. However, what immediately follows is “…it did not understand the significance of the claim”. In light of the various quotes subsequently taken from the Tribunal’s decision record ([47] – [49] at CB 146), what plainly emerges is that the applicant’s complaint is not that the Tribunal breached any procedural fairness obligation, but that it did not accept that he would suffer harm as a Muslim, if he were to return to India. 

1. There is nothing in the material before the Court to show that the Tribunal failed to comprehend the applicant’s claims to fear harm for this reason. The Tribunal gave reasons for its finding that the applicant was not a member of SIMI, and its finding that the applicant did not suffer harm as he had claimed for this reason. These conclusions, and the findings that informed them, were all reasonably open to the Tribunal (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). What must particularly be noted here is that the Tribunal relied on the applicant’s own evidence as variously given and, more broadly, country information available to it for the findings that it made.

2. In short, ground one seeks to cavil with the Tribunal’s findings and seeks impermissible merits review from this Court (Wu Shan Liang). As the Minister submits, the Tribunal was not obliged to uncritically accept the truth of the applicant’s claims nor was the Tribunal required to seek out evidence in support of the applicant’s claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123). The concept of the onus of proof is not relevant before the Tribunal. Nonetheless, it was for the applicant himself to make out his case such as to satisfy the Tribunal that he met the relevant statutory criteria for the grant of the visa (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155). Further, it is the case that the Tribunal is not required to provide supporting evidence to “disprove” the applicant’s claims.

3. The relevant statutory test set by the Act for the Tribunal, at s.65 and, relevant to claims for protection visas, s.36 of the Act, is whether it could reach a requisite level of satisfaction that the applicant met either of the criteria for the grant of the visa. There is nothing in the material before the Court to show that the Tribunal failed to properly discharge the statutory test in this regard.

4. Ground two appears to assert that the Tribunal breached its procedural fairness obligations because it did not provide to the applicant information that he says it collected from other sources, which were the reason, or a part of the reason, to reject his claim. 

5. The ground itself is expressed in very general terms however some of the language appears to invoke a breach of s.424A(1) of the Act. The sole particular to the ground draws attention to [51] (at CB 147) of the Tribunal’s decision record. This is the paragraph relevant to, as I said earlier, the claimed assault in 2008 by Hindus. As set out earlier in this judgment, in this paragraph, the Tribunal accepted the applicant’s claim that he had been assaulted, but did not accept that he was seriously injured. Importantly, and relevantly, it said it could not be satisfied that he was assaulted for reason of religion or political opinion.

6. The Minister submits that the applicant’s complaint can be properly understood as an assertion that the Tribunal did not comply with its procedural fairness obligations, pursuant to s.424A(1) of the Act. It is the case that s.424A(1) of the Act obliges the Tribunal to give to the applicant “information” that it considers would be the reason, or a part of the reason, for affirming the delegate’s decision.

7. In this light, the information that the Tribunal can be said to have considered would be such a reason, was the applicant’s own evidence to the Tribunal, his written claims given in relation to the protection visa application and what he relevantly said at the interview with the delegate. The first two pieces of information plainly fall within the exception to the obligation in s.424A(1) set out in s.424A(3)(b) of the Act and s.424A(3)(ba) of the Act.

8. In relation to the third piece of information, what the applicant orally told the delegate at the interview does not fall within any exception in s.424A(3) of the Act. However, the best view, on balance, of the evidence before the Court, is that the Tribunal did not rely on any recording of the interview. Rather, given that it is clear that the applicant gave the delegate’s written decision record to the Tribunal, on balance I am satisfied, having regard to the Tribunal’s own decision record, that the Tribunal drew this information from the delegate’s written account which, having been given to the Tribunal by the applicant, therefore, falls within the exception contained in s.424A(3)(b) of the Act (Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241). I note, in any event, that the oral account of the incident given to the delegate, to which the Tribunal refers in [51] (at CB 147), on the evidence before the Court, was put to the applicant during the Tribunal hearing, and the applicant was given the opportunity to comment.

9. To the extent, more generally, and beyond [51] (at CB 147), that the Tribunal relied on country information, such information falls within the exception to s.424A(1), as set out in s.424A(3)(a) of the Act. What the Tribunal made of the applicant’s evidence and its evaluation of it is, in light of the High Court’s decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, not information for the purposes of s.424A(1) of the Act.

10. I cannot see that any procedural fairness obligation, as it is said to arise under s.424A of the Act was not met by the Tribunal. I also note that, even if the principles of procedural fairness at general or common law were to be applied, on the evidence before the Court, the applicant was on notice of the matters considered adverse to him, and he was given the opportunity to comment. In all, therefore, ground two is not made out.

11. The exact allegation of legal error in ground three is not clear. There are a number of possibilities. 

12. First, it could be that the applicant seeks to complain that the Tribunal misunderstood his claims and thereby failed to properly consider his claims. On current and relevant authority, such a complaint, if made out, would reveal jurisdictional error on the part of the Tribunal (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

13. Second, the complaint may be that the Tribunal’s findings were not reasonably open to it, or were unreasonable, and that in that context the Tribunal thereby failed to properly conduct the review, that it was statutorily obliged to conduct (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”)). 

14. Third, the complaint may be that the Tribunal exhibited bias or was biased. The particulars draw attention to [57] – [60] (at CB 148) of the Tribunal’s decision record.

15. In essence the complaint appears to be that there was country information before the Tribunal, that revealed that communal violence and discrimination existed in India, yet the Tribunal still found adversely to the applicant. The last sentence of the particulars appears, possibly, to complain, in context, that the Tribunal should not have found that his family was not affected by this. 

16. Having regard to the Tribunal’s decision record, it accepted that communal violence, societal abuses and discrimination occur in India. Further, it accepted that Hindu extremists have perpetrated communal violence against Muslims. However, the Tribunal also had regard to country information before it, that referred to the trend in the conduct of the Indian Government to respect religious freedom, that the vast majority of Indian citizens of all religions live in peaceful coexistence and that, on the applicant’s own evidence to the Tribunal as to his family’s circumstances, his family did not appear to have been affected by this.  The Tribunal found, as a result, that the applicant could return to his family home and the chance of harm would be remote.

17. The applicant’s ground is, in essence, a challenge to these findings and the conclusions made by the Tribunal. There is nothing on what is before the Court to say that the Tribunal misunderstood the applicant’s claims. There is a distinction, plainly, between a Tribunal misunderstanding claims and a Tribunal finding that the claims, as presented, were not such that it could be satisfied that the applicant met the criteria for the grant of the protection visa. 

18. Further, there is nothing in the material before the Court to show that the Tribunal failed to deal with any claim expressly made or clearly arising on what was presented to it, or that the Tribunal failed to deal with any substantive claim in the fashion explained by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389.

19. Further, on what is before the Court, while a different Tribunal Member may indeed have come to a different view, it is the case that the Tribunal’s findings and its conclusion were reasonably open to it on what was before it and the Tribunal gave reasons arising from, and probative of, the material and evidence before it.  As was said, with respect, in essence, by the plurality in SZMDS, the Tribunal’s decision cannot be said to be unreasonable in circumstances where minds may differ. 

20. If this ground was some attempt by the applicant to assert bias then it is the case that such an allegation must be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 at [69] and [127], see also 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 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). This is because an allegation of bias, in contrast to other assertions of legal error, is extremely serious to make because it is directed to the very integrity of the relevant decision maker. The ground, even as particularised, does not reach the level of the first proposition, let alone make out the second. In all, ground three is not made out.

21. At its highest, ground four is simply another attempt to assert, in essence, the same complaints as in ground three. It also traverses the same paragraphs of the Tribunal’s decision record as in ground three. I cannot see, even on a generous reading, that it makes any additional assertion or complaint that has not already been dealt with in relation to ground three. It also fails for the same reason.

Conclusion

1. No jurisdictional error is evident in the Tribunal’s decision as it is said to arise from the grounds of the application. Nor can I otherwise see that any such error arises. The application to the Court as amended must be dismissed. I will make an order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 12 December 2014