SZUDB v Minister for Immigration

[2016] FCCA 1152

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDB & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1152

Catchwords:
MIGRATION – Application to review decision of former Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether failure to inquire – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 425

Migration Regulations 1994 (Cth), reg.2.08

Cases cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

First Applicant: SZUDB

Second Applicant: SZUDC

Third Applicant: SZUDD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 831 of 2014

Judgment of: Judge Barnes

Hearing dates:

2 November 2015

10 December 2015

Delivered at: Sydney

Delivered on: 17 May 2016

REPRESENTATION

The First Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 831 of 2014

SZUDB

First Applicant

SZUDC

Second Applicant

SZUDD

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Administration Appeals Tribunal (formerly the Refugee Review Tribunal) dated 24 February 2014 affirming a decision of a delegate of the First Respondent made on 17 December 2012 not to grant the First and Second Applicants protection visas.  The Tribunal found that it had no jurisdiction in respect of the application by the Third Applicant, the child of the First and Second Applicants.  The three Applicants sought review by application filed in this court on 27 March 2014. 

2. The First and Second Applicants are a married couple and citizens of Bangladesh.  The Third Applicant is their daughter who was born in Australia on 3 December 2012. 

3. The First Applicant entered Australia in June 2007.  He held Student visas, the last of which was issued in 2009 and was valid until November 2011.

4. The First and Second Applicants applied for protection visas on 9 November 2012.  Only the First Applicant advanced protection claims in support of the application.  He claimed to fear persecution for reasons of his political opinion on the basis that he had been an activist in student politics, including as organising secretary of the student wing of the Bangladesh Nationalist Party (BNP) in 2000, vice-president of a university college committee student wing of the BNP in 2003 and also a supporter and activist in relation to the BNP.  He claimed that he was a highly placed BNP activist in Australia.  He claimed that the Awami League had targeted and “ruined” his business in Bangladesh.   

5. In his protection visa application the First Applicant also claimed to fear religious persecution on the basis of his adherence to the Ahmadiyya faith, although he conceded that he had not undergone a formal baptism ceremony.  His adviser claimed that he had worshipped in Bangladesh and had attended worship in Australia at Marsden Park on a number of occasions.

6. Consistent with the First Applicant’s request in his protection visa application that all written communications be sent to him (rather than to an authorised recipient or his migration agent), on 5 December 2012 the First Applicant was invited by letter sent to him by registered mail to attend an interview with the delegate on 17 December 2012.  The delegate recorded that the First Applicant did not collect the letter, or contact the Department to advise why he was unable to attend the interview.  He did not attend the interview.  The application of the First and Second Applicants was refused on 17 December 2012.

Tribunal Review

1. As indicated, the First, Second and Third Applicants sought review by the Tribunal. 

2. Subsequently the First and Second Applicants had another child, born on 1 October 2013.  They asked the Tribunal to include their second child in the review application.  The Tribunal advised that the child could not be added to the existing application.  The second child is not a party to the present proceedings.

3. On 7 January 2014 the First Applicant (referred to for convenience as the Applicant) provided the Tribunal with a copy of a document in the form of a letter on BNP letterhead addressed “to whom it may concern” and said to be from the president of the Dhanmondi Thana, Dhaka City attesting to the Applicant’s involvement in the politics of the BNP before he left Bangladesh.  The letter stated that the Applicant had been the organising secretary of a student wing of the BNP and one of the most dedicated student political field workers who had been “tortured and been suffered (sic) by the opponent of BNP”.  His father was also said to be a dedicated follower of the BNP involved in field activities.  The Applicants also gave the Tribunal copies of Bengali newspaper cuttings.   

4. The Applicants were invited to and attended a Tribunal hearing on 13 February 2014.  A transcript of the Tribunal hearing is in evidence as an annexure to the First Applicant’s affidavit of 4 December 2015.

The Tribunal Decision

1. In its reasons for decision the Tribunal found that as there was no decision by the delegate in relation to the Third Applicant, there was no RRT reviewable decision under s.411(1)(c) of the Migration Act 1958 (Cth) (the Act) in relation to that child. The Tribunal accepted that the child was born just prior to the delegate’s decision, but noted that the delegate had not been informed about the birth of the child (as the First Applicant conceded) and, critically, that the delegate had not made a decision relating to the Third Applicant. The Tribunal concluded that it had no jurisdiction in relation to the application of the third named applicant.

2. In relation to the First and Second Applicants, the Tribunal summarised the claims made in support of the protection visa application and at the Tribunal hearing.  It observed that while the Second Applicant had not made her own claims to be a refugee, in the adviser’s submission of 7 November 2012 to the Department it had been claimed that she would face “the same level of social exclusion” that it was suggested would be experienced by the First Applicant on the basis of his faith.

3. In its findings and reasons the Tribunal summarised the First Applicant’s claims that he left Bangladesh because he feared harm because he was an activist and active worker with the BNP, in particular an organising secretary with the student wing of the BNP from 2000 and then vice-president of a university college Chatradal committee.  It recorded that at the Tribunal hearing he had claimed that five people came to his house looking for him in November 2006 but that he was not there.  He claimed to fear he would be targeted and harmed by the Awami League government, its members and supporters if he returned to Bangladesh.  The First Applicant also claimed that a poultry business he had started in 2010 (while in Australia) with his father-in-law had been targeted and ruined by Awami League members/supporters, that he was/is on a hit list in Bangladesh and that opposition political leaders were targeting him.

4. The Tribunal also recorded that the First Applicant claimed he would suffer persecution in Bangladesh because he was an Ahmadiyya.  He claimed there had been a rise in Islamic fundamentalism in Bangladesh.  He also claimed that his faith would considerably worsen the impact of his political profile.  In addition, the First Applicant claimed that his parents no longer supported him and that his failure to complete courses of study while in Australia had led to embarrassment and humiliation.  It was submitted that the First Applicant’s faith may be a factor contributing to the loss of support from his Sunni Muslim parents.

5. The Tribunal accepted that there was independent country information and publications (such as produced by the Applicants) which supported, in a general way, the First Applicant’s claims that there was political violence and conflict between opposing political parties in Bangladesh and that sometimes those with a political profile were targeted for harm, including assaults and killing, by members of opposing political factions.  It also accepted that there was a rise in Islamic fundamentalism in Bangladesh and that sometimes there was persecution of those of the Ahmadiyya faith.  It accepted that those who were threatened or harmed for the reasons claimed could not get protection from the harm they feared in Bangladesh.  

6. However, the Tribunal made the point that it had to determine whether the Applicants before it had a genuine fear founded upon a real chance of persecution for a Convention reason or met the complementary protection criterion.

7. The Tribunal did not accept as true the First Applicant’s claim that he was targeted for harm by the authorities or Awami League members or supporters because of his BNP membership and/or activities in Bangladesh or that five people came to his house looking for him in November 2006 before he left the country in June 2007.  The Tribunal found that he had not given credible evidence about his claims and on this basis did not accept as true that he left Bangladesh because he feared harm or was threatened with harm for the reasons claimed.  It did not accept that he feared to return for the reasons claimed or that there was a real risk or real chance he would suffer significant or serious harm for the reasons claimed, including because of his claimed Ahmadiyya faith.  Nor did it accept that things would be worse for the First Applicant because of elections since he first left Bangladesh in 2007 or because of the rise in Islamic fundamentalism.

8. In considering the credibility of the First Applicant’s claims, the Tribunal had regard to his immigration and study history, including the fact that, on his evidence, he was studying until his student visa expired and that it was only after that time, when his father stopped giving him money, that he found out about protection visas.  The Tribunal found that the First Applicant had come to Australia in June 2007 to study, not because he feared harm or was threatened with harm as claimed for the reasons claimed.  It made the same finding in relation to his subsequent return to Australia (after visits to Bangladesh) in 2008 and 2009.  The Tribunal found that it was not consistent with the First Applicant’s claims about past events and his fear of harm in Bangladesh that he returned to Bangladesh in 2008 and 2009, delayed applying for protection for so many years and only applied for protection in November 2012 after his student visa had expired.  It considered, but did not accept, his explanations for the delay.  It was of the view that he had not given a reasonable explanation for why he would not approach immigration authorities in Australia before November 2012 if his claims were genuine.

9. The Tribunal did not accept the First Applicant’s explanations in relation to his return to Bangladesh in 2008 and 2009 for 3 to 4 weeks each time.  It was of the view that he had not given truthful evidence about hiding in hotels in Bangladesh when he returned for his marriage in 2008 and to see his parents and his wife in 2009.  The Tribunal considered that his claims that he was in hiding were a recent invention in response to the Tribunal’s concerns.  It had regard to the fact that the First Applicant could not tell the Tribunal which hotels he had stayed in and also the fact that he had not mentioned in his statement in support of his protection visa application that he was in hiding during his visits to Bangladesh. 

10. Nor did the Tribunal accept the First Applicant’s claims that people came to look for him at home in 2006 or that he was on a “hit list” and targeted by opposition leaders.  It had regard to the fact that when it asked who was targeting him, he had said that after five years he did not know, but he knew that his name was on a hit list because he was an active worker for the BNP.  The Tribunal did not accept that the First Applicant was of interest to the authorities or opposition in his country, or to those who supported the Awami League leaders.  It had regard to the fact that he had left Bangladesh on three occasions and re-entered it twice on a passport and visa in his own name without any difficulties.  The Tribunal was of the view that this was not consistent with the First Applicant’s claims that he was on a hit list kept by the Awami League leaders/authorities.

11. The Tribunal accepted that the First Applicant (and his father/family) supported the BNP, but did not accept that he was or is a BNP activist or worker, that he had held the positions he claimed he held in the BNP or that he had the political profile he claimed to have in Bangladesh.  In making this finding the Tribunal referred to the fact that when it had asked the First Applicant to describe his activities as organising secretary (a position he claimed he held from 2001 until he left Bangladesh in 2007), he had given a very general description, saying that he organised processions and rallies, stuck up posters, did a campaign for a candidate and collected people for seminars and meetings.  The Tribunal also had regard to the fact that the First Applicant said that he could not remember people who were at the rallies or processions (although he named the President), and the fact that he could not remember dates of such events.

12. The Tribunal accepted that the First Applicant had attended BNP meetings in Australia on two or three occasions since arriving in 2007.  However it found that such limited attendance was not consistent with the profile of a BNP activist or active worker.  It did not accept that he feared harm or that there was a real chance or real risk he would suffer serious or significant harm in Bangladesh because he had attended BNP meetings in Australia.

13. The Tribunal also accepted the First Applicant’s claims that he started a poultry business with his father-in-law in Bangladesh in 2010.  Not without some doubt, it accepted that the business had failed because the poultry house was destroyed by political enemies of his father-in-law and his relatives.  However the Tribunal did not accept that this occurred because of the political profile of the First Applicant.  In this respect it had regard to the First Applicant’s evidence that his own family members were having no difficulties in his country (because they were not active BNP members) and that his father ran a rental car business in Dakar which supported the family financially.

14. The Tribunal considered the claims made by the First and Second Applicants based on religion.  It did not accept that either of the Applicants was genuinely of the Ahmadiyya faith.  It recorded that when it had asked the Second Applicant about her religion, she had said that her religion was Islam.  It found that she had said “essentially” that she had never practised as an Ahmadiyya in either Australia or Bangladesh.  Nor did the Tribunal accept that the First Applicant was of the Ahmadiyya faith in Bangladesh or that he had become an Ahmadiyya in Australia.  The Tribunal recorded that he said that in Bangladesh he went to the mosque two or three times a month in 2004 and 2005 and a couple of times in 2006.  However it did not accept that this was true, having regard to the fact that he could tell the Tribunal very little about the Ahmadiyya faith when given the opportunity to do so.  The Tribunal also had regard to the fact that when the First Applicant was asked when he became Ahmadiyya he said that he was not yet Ahmadiyya (although “mentally” he was, he liked them, studied them, and was interested in the Ahmadiyya faith) but that he could not become an Ahmadiyya in Bangladesh.  The Tribunal also had regard to the First Applicant’s evidence about what had he done to practise the Ahmadiyya faith in Australia and his claim that it was hard to attend the mosque here because he was busy, that he had not been baptised and that he had only been to the mosque about two or three times since his arrival in Australia in 2007.

15. The Tribunal concluded that it did not accept that either the First or the Second Applicant was a genuine Ahmadiyya or had practised that faith or would practise that faith genuinely in either Bangladesh or Australia.  It found that their claims based on religion, including because there had been a rise in Islamic fundamentalism in Bangladesh, were not such as to lead it to accept that either of them feared harm in Bangladesh or that there was a real chance or real risk that either of them would suffer serious or significant harm in Bangladesh because of religion.  It followed that the Tribunal did not accept that the First Applicant’s political profile would worsen because he was of the Ahmadiyya faith.

16. The Tribunal did not accept that the First Applicant’s parents would not support him because he was of the Ahmadiyya faith.  It accepted that he would be embarrassed and humiliated because of his lack of achievement in his studies in Australia and that his parents would not financially support him as they had done in the past, but found that this did not amount to serious or significant harm for the purposes of the Refugees Convention or the complementary protection criterion.

17. The Tribunal continued at paragraph 44:

    Given the Tribunal’s concerns about the applicant’s credibility and given the country information about the prevalence of document fraud in Bangladesh which the Tribunal consulted and which it discussed generally with the applicant at the hearing, the Tribunal considers and finds that the document from Bangladesh dated 23 December 2013, stamped as attested 24 December 2013, described as on letterhead of the BNP, and produced by the applicant in support of his claims, is not reliable evidence of the facts in that document.

18. The Tribunal reiterated that it did not accept that the First Applicant was targeted for harm by those he claimed to fear in Bangladesh (including Awami League supporters, opposition party leaders, Islamic fundamentalists, or anyone else) for the reasons he claimed or that there was a real chance that he would suffer harm amounting to serious harm or a real risk he would suffer significant harm in Bangladesh for the reasons claimed.  It was of the view that there was no plausible evidence before it that the First Applicant had suffered persecution in Bangladesh or had a real chance of suffering persecution as claimed because of his political opinion, religion or for any other Convention reason now or in the reasonably foreseeable future. 

19. The Tribunal found that to the extent that the Second Applicant made her own claims to be a refugee because of her Ahmadiyya faith, there was no plausible evidence that she was Ahmadiyya, that she had suffered persecution in Bangladesh or that she had a real chance of suffering persecution there from Islamic fundamentalists or others because of her religion or because she was a member of a particular social group now or in the reasonably foreseeable future.

1. For the same reasons, the Tribunal found that neither Applicant met the complementary protection criterion.  It also found that to the extent that the fate of the Second Applicant depended on the outcome of her husband’s application, she was not entitled to a protection visa on that basis. 

2. The Tribunal affirmed the decision not to grant the First and Second Applicants protection visas.  It concluded that it had no jurisdiction in respect of the application by the Third Applicant. 

These Proceedings

1. The Applicants sought review of the Tribunal decision by application filed in this court on 27 March 2014.  In the Application under the heading “final orders sought”, the Applicants claimed that a “fair review” was not conducted and that the Tribunal’s “findings and the grounds of rejection” were not logical.  In addition, the Applicants relied on 10 grounds contained in a document attached to the Application.  The First Applicant tendered unfiled submissions dated 26 October 2015 containing links to documents said to be reports about the situation in Bangladesh. 

2. It emerged at the hearing that the Applicants also sought to rely on what had occurred in the Tribunal hearing.  The First Applicant claimed that he had not understood the orders made by a Registrar which required any party wishing to rely on the evidence of the Tribunal hearing to file and serve a copy of a transcript of that hearing annexed to an affidavit by a specified date, notwithstanding that he had had the assistance of an interpreter at the directions hearing.  However in oral submissions the First Applicant appeared to suggest that he had made a very specific request to the Tribunal at the hearing that it investigate the veracity of the supporting document he had provided through the Australian Embassy or Consulate in Bangladesh.  In these particular circumstances, the hearing was adjourned to enable the Applicants to file a transcript of the Tribunal hearing together with written submissions addressing the issues raised in the transcript.   The Applicants filed an affidavit annexing a transcript of the Tribunal hearing prepared by professional transcribers and a letter including submissions. 

Grounds in the Application

1. It is convenient to consider first the 10 grounds in the attachment to the application.  Ground 1 refers to the fact that the Tribunal observed that it had consulted independent country information from the UK Home Office about the prevalence of document fraud in Bangladesh (in addition to information referred to by the delegate) as follows:

   23.  In addition to the country information referred to by the delegate the Tribunal consulted the following independent country information about the prevalence of document fraud in Bangladesh; UK Home Office Country of Origin Report, Bangladesh, 23 December 2011 at paragraph 32.

2. The Applicants contended that this indicated that the Tribunal had not verified the document (being the letter from the BNP) independently.  It was submitted that this was not “logical”.  The Tribunal was also said to have indicated that this document was “fake.”  The Applicants asserted that it was a “true” document from a true person who was and remained the president of the Dhanmondi Thana BNP.

3. It is apparent that the document in issue is the letter dated 23 December 2013 said to be from the president of the Dhanmondi Thana Dhaka City BNP attesting to the First Applicant’s role in the BNP.

4. As the First Respondent submitted, the weight to be attributed to evidence is a matter for the Tribunal (see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [33]). It was open to the Tribunal to have regard to independent country information of its choice in relation to the prevalence of documentary fraud in Bangladesh. There is no suggestion that there was any contrary evidence on this issue submitted to the Tribunal by the Applicants. As the Tribunal noted (and as is confirmed by the transcript of the hearing subsequently filed by the Applicants), the Tribunal raised with the First Applicant at the hearing the fact that there was independent country information indicating that document fraud was very common in Bangladesh.

5. The Tribunal’s finding in relation to the document in issue at paragraph 44 of its reasons for decision was not that it was “fake” as such. Indeed the Tribunal did not make any finding about the source of the document. Rather (as set out at [27] above) it found that given its concerns about the First Applicant’s credibility and the country information about the prevalence of document fraud in Bangladesh, this document was “not reliable evidence of the facts” stated therein. 

6. Contrary to the assertion in ground 1, this finding was open to the Tribunal on the material before it for the reasons that it gave. It cannot be said that there was a lack of an objective basis for such finding (which was based both on the Tribunal’s credibility finding as well as information about the prevalence of document fraud) or that such finding indicated that the Tribunal’s conclusion about the state of satisfaction required under s.65 of the Migration Act (or any other finding on the way to that conclusion) revealed illogicality or irrationality amounting to jurisdictional error in the sense discussed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] to [133]. This ground is not made out.

7. Ground 2 takes issue with what was said to be the fact that the Tribunal did not “believe that couple of people came to [the First Applicant’s] house”.  The Applicants took issue with this finding as follows:

   … [w]hat is the ground that tribunal didn’t believe it and if I knew before then I was going to install video cameras to prove my claim.

8. The Tribunal found that it did not accept as true the claim that five people came to the First Applicant’s house looking for him in November 2006 (before he left the country in June 2007) on the basis that (as discussed above) it found that he had not given credible evidence about his claims.  At paragraph 37 of its findings and reasons the Tribunal reiterated this conclusion (after making adverse credibility findings) in the context of not accepting as true that the First Applicant was or is on a “hit list” in his country or that the authorities or Awami League leaders were targeting him.  It had regard to the fact that he had left Bangladesh on three occasions and had re-entered twice using a passport and visa in his own name without any difficulties. 

9. The First Applicant’s concern about the Tribunal’s rejection of his credibility and the consequential rejection of his claims does not establish jurisdictional error.  This ground takes issue with the merits of the Tribunal’s decision.  Merits review is not available in this court.    

10. Ground 3 takes issue with what were said to be the Tribunal’s remarks that the First Applicant could not provide any credible evidence to support his claim.  It was contended that:

    3.  The tribunal also mentioned couple of times that I couldnt (sic) provide any credible evidence to support my claim but didnt (sic) mention properly that what is the definition of credible evidence according to tribunal.

    The tribunal asked about any photo or video relating to the involvement of BNP’s political activities or any sign of physical injury as an evidence but I don’t have & if it’s the definition of credible evidence then I have to aske that-

    “There were millions of soldiers who fought in the 1^st & 2^nd world war and many of them returned home without any sign of physical damage or injury.  So will it be logical to ask that those who don’t have any picture fighting on the battlefield or don’t have any sign of physical injury didn’t fight in those world wars”.  

11. This ground relates to issues the Tribunal raised with the First Applicant at the hearing.  It asked him what he did in politics (transcript p.17-18) and subsequently (transcript p.20) asked him to tell it in some detail what he did as organising secretary for the BNP.  The Tribunal sought particulars when the Applicant spoke in general terms, explaining the sort of information it was asking about and the fact that he was not giving the Tribunal “a picture of being an organising secretary” (transcript, p.21).  It appears that this remark was misunderstood by the First Applicant as a request for a photograph, but the Tribunal clarified (transcript, p.21) “No, but I don’t mean pictures, I mean you’re not describing much detail what you did for all those years.”  This did not constitute a request for a photo or video.  Nor did the Tribunal ask for “any sign” of physical injury.  Nor did it ask him for hotel receipts, but rather for the names of the hotels in which he had stayed.  He volunteered that he had not kept receipts.    

12. The Tribunal did refer to the absence of documentary evidence in relation to the First Applicant’s claims that when he returned to Bangladesh he remained in hiding in a hotel.  It did so in circumstances in which the First Applicant was unable to tell it which hotels he stayed in and told the Tribunal that he had not kept the receipts for his stays.  However the Tribunal’s concern in relation to the credibility of the First Applicant’s claim about hiding in hotels on his returns to Bangladesh was not based solely on the absence of documentary or corroborative evidence.  It also had regard to the fact that he had not mentioned being in hiding in Bangladesh in the written statement in support of his visa application in finding that it did not accept that he gave truthful evidence about hiding in hotels and that such claims were a recent invention in response to Tribunal concerns. 

13. The Tribunal’s finding in this respect and also its adverse credibility finding were not based only on the absence of corroborative evidence (insofar as that is the Applicants’ contention).  Rather, the Tribunal made such findings on the material and evidence before it for a number of reasons.  The Tribunal’s credibility finding was a matter for the Tribunal as the decision-maker par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407; [2000] HCA 1 at [67] per McHugh J). These findings were open to the Tribunal on the evidence and material before it for the reasons it gave and are not indicative of jurisdictional error.

14. Insofar as this ground may be seen as raising a broader complaint about the fairness of the Tribunal decision and a possible allegation of apprehended bias, such claims are not made out.  The Tribunal accepted some aspects of the First Applicant’s claims.  In particular (despite the absence of corroborative evidence) the Tribunal did accept the First Applicant’s evidence that he had started a poultry business with his father-in-law that had failed because the poultry house was destroyed by political enemies and relatives of the father-in-law.  It also accepted that the First Applicant and his father/family supported the BNP, albeit that it did not accept that he was or is a BNP activist or worker or that he had held the positions he claimed for reasons which it gave.  There is nothing in the material before the court (including the transcript of the hearing) to support any claim of actual or apprehended bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28). The general complaint about fairness is considered below. No jurisdictional error is established on the basis contended for in ground 3.

15. Ground 4 takes issue with the Tribunal’s view of the fact that the First Applicant had been able to enter Bangladesh legally through the airport.  It is as follows:

    4.  The tribunals (sic) view is if I am targeted then how could I enter to Bangladesh legally through airport, here I have to say that –

    - I am a wanted person by the oppositions but have to understand that I am not a most wanted national criminal that my picture will be sent to each and every police and immigration workers and will be postored (sic) on the wall.  The tribunal actually couldn’t understand the difference between these two things and it takes couple of weeks to get caught for this kind of wanted person by the opposition.

    - Airport is a public place & very limited chance of getting attacked by the opposition.

    - During 2008 & 2009 periods there were not many Opposition people in the security forces like police oand (sic) customs department and that’s the reason I were not harmed at the airport but now a days the Awami government have set their own people in each and every sectors of the security force. 

16. Such claims and the explanation the First Applicant now provides seek impermissible merits review and do not establish jurisdictional error.  I note that when the Tribunal asked about this issue at the hearing the following exchange occurred:

    Q99: And did you have any trouble – you left three times and re-entered twice, I mean, that’s not really consistent with authorities targeting you for harm.

    A: No, actually the main leader – the opposition leaders they do it.

    Q100: What did you say?

    A: The operation workers they target, they are doing the violation but not the police, not the airport authority, they are not - - -

    Q101: So you had no trouble leaving your country three times and re-entering twice?

    A: No.  It’s related with the airport operator.

    Q102: I couldn’t understand.

    A: It’s related with airport operator, the airport in charge, airport police, Immigration. 

    Q103: So who do you say is targeting you if it isn’t the authorities?

    A: It’s main opposition leaders.  Opposition leaders, the workers. 

17. It was open to the Tribunal to have regard to these matters, particularly given that the First Applicant’s claims (and his letter of support) suggested his fear of the Awami League was a fear of the authorities when the Awami League was in power.  This ground is not made out.

18. Ground 5 takes issue with the Tribunal’s consideration of the First Applicant’s return to Bangladesh to attend his marriage ceremony.  It was suggested that the Tribunal had questioned how the First Applicant could attend his marriage ceremony where there was a risk of getting harmed.  This ground purports to provide an explanation about the size and whereabouts of the ceremony as follows:

    I have to say that there were not thousands of people in that ceremony but not more than 100 people and they were my close friend & relatives who were trusted.  Also that was in the countryside from where it takes time to spread information about someone. 

19. This ground also seeks impermissible merits review.  The Tribunal’s concern about the First Applicant’s return to Bangladesh in 2008 for his marriage was not expressed as a concern that he would attend his marriage ceremony where there was a risk of getting harmed, but rather that he had not given a reasonable or plausible explanation about his ability to return to and stay without harm in Bangladesh for some weeks in both 2008 and 2009.  In that context the Tribunal did not accept the First Applicant’s claim that he was in hiding in hotels in his country.  This ground does not establish jurisdictional error. 

20. Ground 6 takes issue with the fact that (at paragraph 37 of its decision) the Tribunal did not accept as true that the First Applicant was/is on a “hit list” in his country and had regard to the fact that when asked who was targeting him the First Applicant had said that after five years he did not know who was targeting him, but that he knew his name was on a hit list because he was an active worker for the BNP.  The First Applicant sought to provide a response to this reasoning on the basis that:

    I have to say that after doing jobs in an office the employees are changed new peoples come but the files and documents don’t get changed they are kept for a long time which is similar to the opposition who were targeting me at that time now has moved their positions or role but their documents or lists r (sic) not changed. 

21. In the hearing the Tribunal had raised with the First Applicant who in the opposition was targeting him (transcript, p.14).  His response was to the effect was that after five years he did not know anybody in particular but was sure his name was on the list (transcript, p.14).  When asked why, he said “I don’t know”.  The Tribunal asked again and he claimed “they were making the list with very active workers of the BNP”.  The Tribunal asked why he would be on a hit list of active workers of the BNP if he had been absent essentially since 2007 (transcript, p.14-15) to which he said that:

    A:  Because they know that I’m already abroad and when I come back I will be engaged in BNP on political activities again.  

22. There is no evidence to suggest that the explanation the First Applicant now seeks to provide was in fact provided to the Tribunal.  His concerns in this respect seek impermissible merits review.

23. Ground 7 seeks to provide an explanation for the First Applicant’s inability to recall the names of hotels he stayed in (when he claimed he was hiding in Bangladesh on his return in 2008 and 2009).  It is as follows:

    7 - The tribunal also mentioned that I couldn’t tell any name of the hotels where I was hiding.  I understand that its suspicious that why I couldn’t tell a single name of hotel where I stayed while hiding.

    - Actually its hard for me to remember the name of hotels where I was hiding 4 years ago and really I cant remember but my wife she can remember some and if she gets any chance of interview in future she will tell.

24. This ground also seeks impermissible merits review.  The Applicants had the opportunity to put evidence and submissions before the Tribunal, both at the hearing and in writing.  This issue was raised at the hearing.  There is no evidence or suggestion that the explanation in Ground 7 was provided to the Tribunal.  This ground does not establish jurisdictional error.

25. Ground 8 seeks merits review.  It disagrees with the Tribunal’s conclusion that it did not accept that the First Applicant engaged in the political activities claimed, on the basis that such activities were done by political workers in Bangladesh.  The Tribunal did not dispute that the activities claimed (organising processions and rallies, sticking up posters, campaigning for a candidate and collecting people for seminars and meetings) were the activities of political workers.  Rather, it did not accept that the First Applicant had engaged in such activities as an activist, worker, or in the position claimed.  In that context it had regard to the very general description he gave of his activities and his inability to recall details such as names of attendees and dates. It is apparent from the transcript of the hearing that the Tribunal gave the First Applicant the opportunity to provide further details, but that he did not do so.  This ground is not made out.   

26. Ground 9 takes issues with the Tribunal’s consideration of the First Applicant’s evidence that he had only attended a couple of meetings (apparently a reference to BNP meetings) in Australia.  It is as follows:

    9- In 39 the tribunal said that its not consistent with my claim that I only attended couple of meetings in Australia.

    An example that If I need to go to work Sunday afternoon at 3-11 and a meeting is arranged at 5 then its not possible for me to attend those meetings.

    But I still meet with the leaders of BNP here in Australia whenever I get time and keep myself up to date and if enquiry they u will find that they know me personally.   

27. The Tribunal found that the First Applicant’s limited attendance at BNP meetings in Australia was not consistent with the profile of a BNP activist or active worker.  Insofar as the application sought to provide an explanation for the First Applicant’s limited involvement with the BNP in Australia based on work commitments and a claim he met with BNP leaders in Australia who knew him personally, this ground seeks impermissible merits review.  It was open to the Tribunal to find the First Applicant’s very limited involvement with the BNP in Australia was not consistent with the profile of a BNP activist or active worker and not to accept his explanation based on a need to work to meet his expenses.

1. In this ground it was also suggested that the First Applicant had met the BNP leaders in Australia and “if enquiry then u will find that they know me personally”.  It is not for the court to make such inquiries.  If this is intended to relate to the Tribunal, as discussed further below there is no general duty on the Tribunal to make inquiries.  It is for an applicant to put evidence before the Tribunal in support of his or her claims.  The First Applicant’s remark in this context is not such as to indicate that the Tribunal failed to make an obvious inquiry about a critical fact the existence of which was easily ascertained (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]). This ground is not made out.

2. In ground 10 the Applicants contended that while in its reasons for decision the Tribunal recorded that when it asked the Second Applicant about her religion she said her religion was “Islam”, this was wrong and that she had said “Ahmadiya Islam”. 

3. It was also contended that while the First Applicant’s evidence was of limited attendance at the Ahmadiyya mosque (a “few times a month only in Friday prayer”):

   Now I want to say that there are millions of Christians in all over the world who barely attend to church even once a year but still celebrate Xmas and other rituals that belongs to Christianity so I don’t think that its logical to call those people not christian.   

4. The first part of this ground takes issue with the Tribunal’s findings in relation to what the Second Applicant said at the hearing.  As the First Respondent pointed out in pre-hearing written submissions, to the extent that the Applicants alleged that oral evidence attributed to the wife by the Tribunal was wrong, this had to be supported by evidence in the form of a transcript of the Tribunal hearing.  There is now a transcript in evidence. 

5. In the hearing I confirmed with the First Applicant (who also appeared for his wife and child) that the part of the Tribunal hearing with which he took issue in this respect was at page 36.  The Tribunal asked if he and his wife had ever gone together to mosques.  His reply was “She couldn’t go but I went, yes”, which he explained on the basis that “She is busy with the kids”.  The Tribunal then asked the Second Applicant if she wanted to tell it anything (to which she responded “No”) and then the Tribunal asked her, “Madam, what is your religion?”.  The transcript obtained by the Applicants (prepared by APT Transcriptions Pty Ltd) records the wife’s response through the interpreter as follows:

   A (INT): …..  (1:37:44).  My husband also following Ahmadi so I’m also following my husband.

   Q295:  But have you ever practised as an Ahmadi?

   A(INT): …..  (1:38:10)  I went with my husband once there and, you know, ….. (1:38:23).

   Q296:  Do you mean in Australia?

   A(INT):  Yes, one day in Australia.

   Q297:  But not in Bangladesh?

   A:  No.

6. Insofar as the First Applicant contended that his wife told the Tribunal that her religion was “Ahmadi Islam” this is not apparent from the transcript.  It appears that part of her evidence may have been unclear or unable to be translated.  She did go on to state that “My husband also following Ahmadi so I’m also following my husband”.  However the Tribunal’s finding that the wife told it that her religion was Islam and “essentially” that she never practised Ahmadiyya in Bangladesh or Australia is not inconsistent with what appears in the transcript, given that she claimed only to have gone “there” once with her husband in Australia and not in Bangladesh.

7. In any event, even if the wife had told the Tribunal she was “Ahmadiya Islam” as is asserted in ground 10, this would not be indicative of jurisdictional error on the part of the Tribunal.  The Tribunal understood that the wife made a claim to be of the Ahmadiyya faith.  However it rejected this claim having regard to the fact that, consistent with her evidence at the Tribunal hearing, in essence she indicated that she had never practised Ahmadiyya.  The Tribunal’s conclusion in this respect is not inconsistent with the evidence of what occurred at the Tribunal hearing.  The Tribunal (appropriately) saw the essential issue as whether the Second Applicant practised the Ahmadiyya faith.  This is apparent from its conclusion that it did not accept as true that either of the Applicants was “genuinely” of the Ahmadiyya faith.  It did not accept that the wife had practised that faith or would practise that faith genuinely in either Bangladesh or Australia.  Such a finding was open to the Tribunal having regard to the wife’s evidence when asked about her practice as an Ahmadi.  No jurisdictional error is established on the basis contended for in this part of ground 10.

8. The Applicants also took issue with the logic of the Tribunal’s findings in relation to the First Applicant’s claims that he feared persecution or significant harm in Bangladesh on the basis of his claimed religion.  The Tribunal did not accept that the First Applicant was of the Ahmadiyya faith in his country or that he had become an Ahmadiyya in Australia.  Contrary to the contentions in ground 10, in reaching this conclusion the Tribunal did not rely solely on the First Applicant’s limited attendance at the mosque.  Rather, it rejected his claims that in Bangladesh he went to the mosque two or three times a month in 2004 and 2005 and a couple of times in 2006 in circumstances where he could tell the Tribunal very little about the Ahmadiyya faith when given the opportunity to do so, and given that when asked when he became an Ahmadiyya he said that he was not yet an Ahmadiyya although “mentally” he was, he liked them, he studied them, and he was interested in the Ahmadiyya faith, but he could not become an Ahmadiyya in Bangladesh.  The Tribunal also took into account the fact that when asked what he had done to practise the Ahmadiyya faith in Australia the First Applicant said that it was hard to attend the mosque here because he was busy, that he was not baptised and that he had only been to the mosque about two or three times since he had come to Australia in 2007 (which I note differs from the claims made in ground 10).  Based on his evidence, the Tribunal did not accept as true that the First Applicant was a genuine Ahmadiyya or that he had practised that faith or would practise that faith genuinely, either in Bangladesh or Australia.  Such findings were open to the Tribunal on the material before it for the reasons which it gave, and the Applicants’ disagreement seeks impermissible merits review.  This aspect of ground 10 is not made out.

9. Finally the Applicants’ contention that the Tribunal finding was illogical is based on a misconception as to its reasoning.  As indicated, it did not base its findings about the First Applicant’s claims to be Ahmadiyya solely on his limited attendance at a mosque in Australia.

Other Issues

1. Before considering the Applicants’ general assertions as to a lack of logic or a fair review it is appropriate to address issues relating to the Tribunal hearing raised in the First Applicant’s oral submissions. 

2. As indicated when this matter was first before the court for hearing, the First Applicant claimed that he had asked the Tribunal to have the document he submitted (said to be from the BNP) independently verified and had asked it not to rely on third party reports.  Later in the hearing he seemed to retreat from the suggestion that he had asked the Tribunal to verify his documents independently.  He indicated that he could not remember clearly and later suggested that when he asked the Tribunal to verify the document independently he meant that it should do so with the help of the Australian Embassy in Bangladesh or that by some other means the Tribunal could have verified the document itself. 

3. It was not clear whether the First Applicant had asked the Tribunal to carry out a specific form of verification.  In these circumstances he was given the opportunity to file and serve a transcript and submissions addressing the part of the hearing on which he sought to rely. 

4. In submissions annexed to the affidavit and transcript filed by the Applicants, the First Applicant referred to the Tribunal’s discussion with him of the letter of 23 December 2013 (said to be from the BNP).  The First Applicant took issue with the fact that the Tribunal asked why he got the documents and the fact that, rather than “verify” the document, the Tribunal had relied on independent country information about documentary fraud.

5. In submissions the First Applicant pointed to the fact that after the Tribunal had explained that it had to decide if the document was reliable evidence of what it said, he had said that the Tribunal could ring “him” to verify (which in context was clearly a reference to the person said to be the author of the document).  The First Applicant took issue with the fact that the Tribunal was said to have refused to verify the document by ringing the writer.  He claimed he told the Tribunal member that she “can Investigate about it or follow other procedures whatever she likes to verify the document but she denied again in Q248 and was saying that she was going to rely only on what I say and the country information published by various organisations relating document fraudulent”. 

6. It was submitted that the “urgent question” was whether the Australian Embassy relied on reports about fraudulent documents or performed checks and verification of submitted documents.  The First Applicant also asked in submissions that any submitted document be verified directly or via the Australian Embassy in Bangladesh. 

7. First, insofar as the First Applicant asks the court to verify any document he misunderstands the role of the court and seeks merits review. 

8. As he submitted, the discussion at the Tribunal hearing of the document said to be from the BNP started on page 28 of the transcript.  The Tribunal referred to the newspaper cuttings and letter and went on to ask the First Applicant why he obtained the document dated 23 December 2013.  He explained he did so because the Tribunal asked him to submit documents.  The Tribunal also asked where he obtained it, but his response is indecipherable, although he also explained that he got it by ringing the President (which he said was very hard as the President was in hiding). 

9. The Tribunal asked the First Applicant (p. 30) how the writer knew he was heavily involved in the politics of BNP until June 2007.  The transcript records the First Applicant’s response as:

   I was – I used to go out with him, … (1:17:42) with him.

10. The following exchange also occurred:

    Q244:  The country information – information – dependent information I look at about countries when I’m doing applications like this, information about Bangladesh that’s independent information from various organisations indicates to me that document fraud is very common in Bangladesh.

    A:  Yes.

    Q245:  Do you agree?

    A:  But if you ---

    Q246:  Just a minute, let me just finish.  So I have to decide if this document is reliable evidence of what it says in it.  Now, what did you want to say?

    A:  You can ring him or --

    Q247:  I’m not going to ring him because I cannot ascertain to whom I’m talking.

    A:  Okay.  So you can do the investigation, otherwise whatever you like.

    Q248:  I’m not going to investigate this document, I’m going to listen to what you say, take into account what you say, take into account the country information ---

    A:  This is 100 per cent true document ….. (1:19:17).

    Q249:  I’m going to assess what’s in this document because having regard to the information I’ve got about document fraud and having regard to the assessment I make about your credibility after I’ve – when I’m assessing this letter.  Okay.  You’re nodding.  Now, these other documents you’ve given me here are quite a few newspaper clippings.  Just – I know having looked through them that they’re about political violence in your country that’s happening. 

11. In submissions the First Applicant appeared to take issue with the fact that the Tribunal had asked why he got the document on the basis that for any visa application any applicant would submit documents in support of his or her application. 

12. However, the fact that the Tribunal raised such an issue at the Tribunal hearing is not indicative of jurisdictional error.  It is apparent that the Tribunal was seeking to establish the purpose for which the document was provided.  It is also apparent from the Tribunal’s further questioning  of the First Applicant at the hearing that one aspect of its concern may have been that the document was dated 23 December 2013 and was provided only shortly before the hearing.  Insofar as the fact of such concern may be said to raise an allegation of unfairness in the sense of apprehended or actual bias, neither is apparent on the material before the court.  I note also that the Tribunal placed no weight in its findings and reasons on any issue in relation to the date of the document or the time at which it was provided by the First Applicant.  

13. The next issue raised in relation to the transcript related to the fact that the Tribunal did not agree to telephone the writer as the First Applicant had suggested.  The Tribunal member explained that she was not going to do so because she could not ascertain to whom she was speaking. 

14. Insofar as the Applicants’ complaint is that the Tribunal exercised its discretion as to whether to make further inquiries by way of a telephone call unreasonably (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18) I am not satisfied that the Tribunal’s power in this respect was exercised unreasonably in the sense of being a decision that lacked an “evident and intelligible justification” as considered by Hayne, Kiefel and Bell JJ in Li at [76] insofar as the Tribunal had regard to its inability to verify the identity of a person called on a number provided by the First Applicant.

15. The transcript does not support any claim that the First Applicant asked the Tribunal to verify the document through the Australian Embassy in Bangladesh.  He did suggest to the Tribunal that it could do an investigation.  This was not a specific request as to the method of investigation, but rather a general suggestion that the Tribunal “can do the investigation, otherwise whatever you like”. 

16. Insofar as the Applicants’ submissions may be seen as raising a general contention that the Tribunal was under a duty to inquire, that is not the case.  It is well-established that it is for an applicant to advance whatever evidence or argument he or she wishes in support of his or her claims and for the Tribunal to then decide whether such claims are made out (Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 per Gummow and Hayne JJ at [187]).

17. In this case it has not been established that there was a failure by the Tribunal to make an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered in SZIAI.  The Tribunal rejected the First Applicant’s claims to be a BNP activist or worker or to have held positions as organising secretary of a student wing or Vice President of a university committee of the BNP based on the generality and inadequacy of his description of his activities and his inability to recall dates or people who were at rallies/processions that he claimed he had organised.  It did accept that he supported the BNP.  Based on its credibility concerns and the information about the prevalence of document fraud in Bangladesh the Tribunal found the letter was not reliable evidence of the “facts” therein.  Given its findings, including about the First Applicant’s political profile based on his own evidence (and having regard to the fact that the First Applicant had told the Tribunal it was “very hard to get [the letter writer] because he’s in hiding position.  He’s not in home.  He doesn’t come even to the BNP office”), it cannot be said that the Tribunal failed to make an inquiry about a “critical” fact the existence of which was easily ascertained. 

18. As pointed out in SZIAI at [25], the duty imposed upon the Tribunal by the Migration Act “is a duty to review”.  The Tribunal considered the First Applicant’s request that it investigate the document.  It was under no obligation to do so and was entitled to decide the case on the material before it, as it explained to the First Applicant, and to consider the document in light of the information before it about document fraud and having regard to the assessment it made about the First Applicant’s credibility. 

19. The Tribunal did not fail to consider the supporting letter and it did not act irrationally by first making an assessment of the First Applicant’s credit and then turning to consider the purportedly corroborative evidence.  It assessed such evidence and weighed it in the balance with all the other evidence (see Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 per North and Lander JJ at [37]-[38]). There was a rational basis for the Tribunal’s conclusion in relation to the letter as set out in its reasons for decision.

20. The Applicants’ contentions based on the transcript of the Tribunal hearing do not establish jurisdictional error.

Fairness and Logic

1. I have also considered the general contentions in the application that the Tribunal did not conduct a fair review and that its findings and grounds of rejection were not logical. 

2. Insofar as either or both of these grounds are based on the matters listed in the 10 grounds of review (or the issue about the BNP letter) there is nothing in the material before the court to suggest any failure by the Tribunal to comply with its obligations under the relevant part of the Migration Act. In particular, having regard to the transcript of the hearing, it has not been established that the Tribunal failed to comply with its obligations under s.425 of the Act to raise dispositive issues with the Applicants.

3. If the general assertion of a lack of fairness is intended to suggest actual or apprehended bias, neither actual nor apprehended bias is apparent on the material before the court.  The Tribunal’s reasons for decision and the transcript of the Tribunal hearing are not such as to demonstrate that the Tribunal had a state of mind so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.  On the contrary, the Tribunal gave the Applicants the opportunity to address issues of concern.  Nor is this a case in which apprehended bias is apparent from the perspective of the hypothetical fair-minded layperson properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias (which has not been particularised).  The fact that the Tribunal did not believe the Applicants’ claims and did not make its own inquiries it is not sufficient to established either actual or apprehended bias.  This is not a case in which the Tribunal’s fact-finding was conducted in a manner which would support a conclusion that the fair-minded observer might, or indeed would, reasonably apprehend that the conclusions the Tribunal reached were reached with a mind not open to persuasion and an inability or unwillingness to evaluate all material fairly (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 per Allsop J (Moore and Tamberlin JJ agreeing) at [115]).

4. Nor has it been established that the Tribunal’s findings were illogical in a manner constituting jurisdictional error. The Tribunal’s lack of satisfaction under s.65 of the Migration Act was based on findings or inferences of fact supported by logical grounds. It cannot be said that the decision to which the Tribunal came in relation to its state of satisfaction was one at which no rational or logical decision-maker could arrive on the same evidence.

Country Information

1. In the tendered document headed “letter of submission” the Applicants took issue with the fact that while the Tribunal relied on country information about document fraud, it had not had regard to other information on the internet said to support the Applicants’ claims about the situation in Bangladesh.  Insofar as the Applicants asked the court to take into account these reports as authentic reports in relation to the situation in Bangladesh they seek impermissible merits review.  As indicated the choice of and weight to be given to items of independent country information is a matter for the Tribunal.  There is no suggestion that the Applicants provided this information to the Tribunal, so that no issue of a failure to consider evidence arises (cf Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16). The Tribunal had regard to the documents the Applicant produced (newspaper cuttings) in relation to political violence and instability in Bangladesh. No jurisdictional error is apparent in this respect.

2. None of the grounds relied on by the Applicants is made out.

The Third Applicant

1. I note for the sake of completeness (although no issue was taken in that respect by the Applicants) that there is nothing in the evidence before the court to suggest that the Tribunal’s conclusion as to its lack of jurisdiction in relation to the Third Applicant was affected by jurisdictional error.  

2. Under reg.2.08 of the Migration Regulations 1994 (Cth), upon the birth of the child she may have become a party to her parents protection visa application (although this issue was not the subject of submissions). However it is clear that no decision was made by the delegate on any claims for protection by the Third Applicant (whether in the child’s own right or on the basis of membership of either or both of her parents’ family unit). The Tribunal’s conclusion that it had no jurisdiction in respect of the purported review application by the Third Applicant was correct. In the absence of a RRT-reviewable decision in relation to her, the Third Applicant was not able to make a valid review application to the Tribunal.

3. As no jurisdictional error has been established on any of the bases contended for or arising on the material the application must be dismissed.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 17 May 2016