SZUZY v Minister for Immigration & Anor

[2015] FCCA 502

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 502

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to identify and consider the applicant’s claims and decision affected by apprehended bias.

Legislation:

Migration Act 1958 (Cth), ss.415, 476

NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) (2004) 144 FCR 1
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
SZRUI v Minister for Immigration, Multicultural Affairs &Citizenship [2013] FCAFC 80
AZACK v Minister for Immigration & Border Protection [2014] FCA 762
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Minister for Immigration &and Border Protection v CZBP [2014] FCAFC 105

Applicant: SZUZY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2458 of 2014

Judgment of: Judge Smith

Hearing date: 4 March 2015

Date of Last Submission: 4 March 2015

Delivered at: Sydney

Delivered on: 6 March 2015

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner of Manning Lawyers

Solicitors for the Respondents: Mr D. McLaren of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2458 of 2014

SZUZY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application brought under s.476 of the Migration Act 1958 (“Act”) for the issue of constitutional writs in respect of a decision of the Refugee Review Tribunal (“Tribunal”) dated 13 August 2014. The Tribunal affirmed the decision of a delegate of the first respondent made on 24 September 2013 to refuse to grant the applicant a protection visa.

2. The applicant argues that the Tribunal fell into jurisdictional error in two respects: first, that it failed to identify and consider the applicant’s claims and so failed to carry out its statutory duty to review; and secondly, that its decision was affected by apprehended bias. No other ground is made out and the application will be dismissed.

Background

1. The applicant is a citizen of Fiji who most recently entered Australia on 18 January 2013. On 4 April 2013 he lodged an application for a protection visa in which he claimed that he had been repeatedly harassed and tortured by Fijian military officers because he had refused to join the Fijian military. In a statutory declaration accompanying that application, the applicant claimed that he was a founder of a rugby league club in Fiji.  In May 2012 his rugby league team defeated a military team in a club competition. After the game the applicant claimed that he was approached by a Fijian military commander and asked by him to join the military as a full time officer. The applicant claimed he declined the offer due to his personal belief and understanding that the current Fijian government headed by the military was “illegal and undemocratic”. In response, the military accused him of being “anti-military” and not supporting the regime’s authority.

2. In June 2012 the applicant claimed that he was picked up from his home by the military and taken to a camp where he was tortured and otherwise mistreated. He was driven back to a location close to his house the following day and left in a street. In another incident in August 2012 members of the military harassed him while he was returning from work.

3. The applicant claimed that he was again picked up by the military on 21 October 2012, held overnight and stripped and sexually assaulted. Finally, the applicant claimed that in November 2012 he was picked up by the police in a joint operation with the military and taken to the police station for five days where he was questioned about an incident in which Fijian prisoners had escaped from prison. The applicant was able to leave Fiji in January 2013 with the assistance of a friend at the departure terminal who helped him through the security check.

4. In further support of the visa application the applicant lodged a letter from his mother who corroborated his claims and added that she had been told by the military that the applicant had been suspected of leaking government agendas to foreign countries. The applicant also relied upon a letter from a colleague of his at the rugby league club who gave further support to the applicant’s claims. In particular the colleague claimed that she had witnessed the conversation in which the applicant had been asked to join the military and had declined.

5. On 24 September 2013 a delegate of the first respondent made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for a review of that decision.

6. The applicant engaged legal representation for the purposes of the Tribunal’s review. Those lawyers, who also currently represent the applicant before the Court, made two written submissions to the Tribunal: the first on 31 March 2014 and the second on 9 April 2014. The first submission essentially repeated the claims that had already been made by the applicant. In the second submission the applicant’s lawyers submitted that the applicant faced a well-founded fear of persecution for the following reasons:

   (a)     [The applicant] is a member and founder of [a rugby league club] in Fiji and is a well-known rugby player/coach in Fiji. [The applicant’s] rugby league team had beaten the military rugby league team - an event that had not happened before and which had brought shame to the military.

   (b)     Additionally, [the applicant] also has military experience from his time with British Royal Marines and British Prisons Services and, given his coaching skills and work with the [rugby league club], he will be forced to join the military or targeted if he does not.

   (c)     He will be persecuted on the basis of his being a member of a particular social group of “men who are well known rugby league coaches that work with disadvantaged youths and communities; such youths and communities being known to authorities for their unlawful criminal activities; who have beaten the military rugby league team, and who have had British Army military experience”; and

   (d)     [The applicant] had refused to join the military and will suffer persecution on the basis of his actual and imputed political opinion as a person who opposes the military regime.

7. In addition, the applicant’s lawyers sent to the Tribunal, a statutory declaration of a third person which set out claims that the applicant was or had been a strong supporter of the Soqosoqo Duavata ni Lewenivanua (“SDL”) party and that because of this the applicant and his family were part of an anti-military group that “were always in the regime’s radar on a daily basis as a form of instilling fear and intimidation”.

8. The applicant appeared before the Tribunal at a hearing conducted on 16 April 2014 and gave evidence in support of his claims and answered questions by the Tribunal about those claims. The Tribunal handed down its decision on 13 August 2014 affirming the decision of the delegate.

Tribunal Decision

1. The Tribunal accepted that the applicant had an established profile as a reputable rugby league player and coach and that he had founded a rugby league club. However, it did not accept that he had had any involvement in the SDL and was not satisfied that his team had humiliated the military rugby league team by defeating them in a rugby game in May 2012 or that a Colonel in the military had offered the applicant a position in the military which the applicant had declined. The Tribunal found that the claimed instances of mistreatment and harassment had not taken place and that the applicant did not have, and was not imputed with, any political opinions which would give rise to a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision under review.

Consideration

Ground 1

The Tribunal failed to identify and consider the applicant’s claims and therefore failed to carry out its statutory duty

1. It is well-established that where the Tribunal fails to consider a claim made by the applicant which, if accepted, might support a conclusion that the applicant meets the criteria for the grant of a protection visa, then the Tribunal has constructively failed to conduct a review pursuant to s.415 of the Act: NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) (2004) 144 FCR 1 at 17-19. However, in this case, the Tribunal did not fail to consider any claim made by the applicant.

2. The particulars to the ground as set out in the application are:

   a)     The Applicants claims commenced in 2012 para 4, but the Tribunal assessing his credibility, found, adverse to him, that he had not experienced any hardship from August 2006 until June 2012.

   b)     The Tribunal only assessed whether the applicant would suffer harm as a result of his actual activities rather than whether those activities would lead to harm due to imputed political profile;

   The Applicant’s claims were that he had been assaulted in June, August, October and/or November 2012.

   These claims were dismissed by the Tribunal because he did not attempt to leave Fiji until November 2012.

3. However, in his written submissions the applicant frames the ground in a slightly different way. First, the applicant points to the Tribunal’s statement at [10] of its reasons where it said:

   As detailed below, multiple aspects of the applicant’s claims and evidence raise significant concerns regarding the overall truth of the claims and evidence advanced and the applicant’s generally reliability as a truthful witness. While the matters of concern are not singularly determinative in and of themselves, cumulatively they leave the Tribunal unable to be satisfied of the truth of significant and central aspects of his claimed circumstances. This in turn leaves the Tribunal unable to be satisfied that the applicant is a person in respect of whom Australia has protection obligations.

4. The applicant contends that at some at least some of the concerns referred to by the Tribunal and later explained in the statement of reasons were ill-founded and for that reason the whole of the decision is infected by jurisdictional error. The applicant particularly relies upon a passage in the Tribunal’s reasons (from [14]-[17]) in which the Tribunal sets out its reasoning in respect of the applicant’s actual political opinion. In particular the applicant relies upon the following statement at [14]:

   … It also suggests that he has no political opinions or preferences he desires to express and no inclination to involve himself with any form of political participation, even the most basic form of political expression such as enrolling to vote or informing himself as to who the political candidates may be. This does not support his claim to have had any actual or imputed political opinion…

5. The applicant submits that this paragraph reveals that the Tribunal failed to consider the applicant’s claim that he had anti-government/army opinion imputed against him due to a single incident that occurred in May 2012. It is submitted that the imputation of the political opinion is derived from people other than the person in whom the opinion is imputed: it does not solely derive from the actions of that person.

6. The applicant’s submission is correct to the extent that it relies upon the fact that a person may be a refugee even though he or she does not in fact hold a particular political opinion but that he or she is only considered to hold such an opinion by his or her prospective persecutors. However, that is not to say that the action or inaction of a putative refugee is irrelevant to the question of whether that person will or might be imputed with a particular political opinion. It is a matter of common experience that, rightly or wrongly, people impute other people with characteristics or beliefs on the basis of their conduct. A person who reads the Bible may, for example, be considered to hold Christian beliefs for that reason alone. In any event, it is unnecessary to explore this issue any further as there are two simple answers to the applicant’s first ground.

7. First, contrary to the applicant’s submission, it is not the case that the only claim put forward by the applicant was that he had had a political opinion imputed against him due to a single incident that occurred in May 2012. As noted above, as part of the review process the applicant’s lawyers submitted to the Tribunal a statutory declaration which purported to set out the applicant’s past history of support of the SDL. In particular, this declaration asserted that the applicant and his family were seen as part of a group opposing the military takeover and that they were “always in the regime radar on a daily basis”. In light of that, the Tribunal did not err in considering the issue of the applicant’s history prior to the critical events of May 2012.

8. In other words, as the first respondent submits, the Tribunal’s findings concerning the applicant’s previous political history, although not put forward as a central aspect of the applicant’s own story, was responsive to the material put forward by the applicant and therefore material which the Tribunal was required to deal with in the conduct of its review of the delegate’s decision.

9. Secondly, and in any event, the Tribunal’s consideration of the applicant’s history did not deter it from considering the applicant’s core claims. Mr Turner, who appeared for the applicant, accepted that the Tribunal (at [18] of its reasons) correctly stated the issue for consideration as:

   … whether, when and why the applicant’s profile became adverse to the military and whether he faces a real chance of serious harm or a real risk of significant harm in Fiji in the reasonably foreseeable future in connection with his profile or for any reason claimed or arising on the evidence.

10. When the Tribunal’s reasons are read as a whole, it is clear that it considered the applicant’s political background for the purpose of determining whether it would accept the applicant’s central claim. In my view, it was open to the Tribunal to do so. It is logical to assess the likelihood of the existence of a claimed fact in the context in which that fact is said to have occurred. For that additional reason, in considering the applicant’s political history, the Tribunal was in fact considering the applicant’s claims in a logical and coherent manner rather than ignoring them.

11. For those reasons the first ground will be rejected.

Ground 2

The Tribunal’s decision was affected by apprehended bias

1. The applicant’s submissions in support of this ground rely entirely on the Tribunal’s statement of reasons. In particular, it was argued that each critical finding made by the Tribunal was made for reasons that indicated the possibility of pre-judgment. At the hearing, I raised with the parties the question of whether, as a matter of principle, the Court was entitled to have regard to the statement of reasons in order to determine whether there was a reasonable apprehension of bias. In particular, I asked whether the decision of the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 (“Michael Wilson”) prohibited recourse to the reasons of the Tribunal and whether, in light of that decision,  this Court was still obliged to apply the approach taken by earlier decisions of the Full Court of the Federal Court such as NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 (“NADH”). Unsurprisingly, the applicant sought to distinguish Michael Wilson on the basis that it concerned apprehension of bias in the context of a court whereas the Minister submitted that the effect of Michael Wilson was that the reasons could not be relied on to support a finding of an apprehension of bias. I agree with the Minister’s submissions.

2. Before turning to the decision in Michael Wilson, it is necessary first to consider NADH. In that case, Allsop J (as his Honour then was) said, at [20] and [21]:

   At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.

   The enquiry is not directed to the personal thought processes of the decision-maker.  It is directed to his or her conduct “objectified” through the prism of what a fair-minded and informed observer would reasonably apprehend:  Jia at 564; Johnson v Johnson (2000) 201 CLR 488, 493. It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality.

   (emphasis added)

3. After considering all of the material, including the Tribunal’s reasons, Allsop J then said, at [115]:

   By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error:  Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002 (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.

1. The first of these passages was quoted more recently by the Full Court of the Federal Court with apparent approval: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [74] per Robertson J, with Allsop CJ and Flick J agreeing. However, the appellant in that case only relied on the conduct of the hearing by the Tribunal to support his claim of reasonable apprehension of bias. That meant that it was not necessary for the Court to determine whether it was permissible to have regard to the Tribunal’s reasons for the purpose of determining such a claim. The same may be said of the later decision of Mansfield J in AZACK v Minister for Immigration & Border Protection [2014] FCA 762.

2. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 North J and Lander J said, at [18]:

   It is a rare case in which a Court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]. The same is the case in relation to apprehended bias. Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased.

   (emphasis added)

3. In that case, the respondent’s argument that the decision of the Tribunal was affected by actual bias or apprehended bias was based simply upon the decision maker’s refusal to give the baptismal certificate sufficient weight to overcome its concerns with the applicant’s evidence. It was perhaps because both types of bias were alleged that the court considered the Tribunal’s findings in making its determination. In any event, the statement of principle in respect of apprehended bias at [18] in SZNPG is inconsistent with the earlier decision in NADH.

4. In Michael Wilson the High Court considered the issue of apprehended bias in circumstances where a trial judge had made a number of interlocutory decisions unfavourable to the defendant and in his absence. The plurality said, at 437 [31]:

   It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

5. Their Honours continued, at [33]:

   Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. …

6. In this case, as in Michael Wilson, the applicant does not allege any actual bias.

7. The plurality said further, at 446 [67]:

   … An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

8. In my view, the principles explained in these passages are inconsistent with the decision in NADH and consistent with SZNPG.

9. It is well-established that the question of whether there was reasonable apprehension that the Tribunal might have pre-judged the matter must be determined in light of the nature and obligations of that body: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. In particular, the fact that the Tribunal conducts hearings in private impacts on some of the considerations relevant to the conduct of proceedings in Court. Equally, however, the fact that the proceedings before the Tribunal are not adversarial and that the Tribunal must, to varying extents, test an applicant’s case for itself, suggests that it might be more difficult to establish an apprehension of bias in respect of the Tribunal. It is not necessary to determine that question because there is no issue that the test for apprehended bias for the Tribunal is objective just as much as it is for judicial officers: Re Refugee Review Tribunal; Ex parte H at [32].

10. As the reasoning of the plurality in Michael Wilson was based squarely on the objective nature of the inquiry in respect of apprehended bias, that reasoning applies with equal force to this case. For that reason, the applicant’s submissions and indeed the whole of the second ground is misguided. Simply put, the mere fact that, at the end of the process of review, the Tribunal might have made some errors of fact, or may even have misguided itself as to the law or had misunderstood and thereby not dealt with all of the claims made by the applicant, does not support any inference that there was a reasonable apprehension that it might have pre-judged the matter. To rely on any of those matters, as the plurality in Michael Wilson said, is to invert the process by assuming there has been some apprehension of bias in the first place and to seek to fortify that inference by reference to the outcome of the review.

11. In case I am wrong about the application of the principles in Michael Wilson, and ought to apply the principles in NADH, it is necessary to examine the applicant’s complaints more closely. In doing so, it must be borne in mind that the mere possibility of legal errors in the Tribunal’s decision will not be sufficient to warrant the conclusion that there was a reasonable apprehension of bias:  Michael Wilson at 460 [116] per Heydon J.

12. The first point made by the applicant concerns the Tribunal concern, at [19] of its reasons, that there was no independent verification of the fact that the applicant’s rugby league team had played and beaten the military. The Tribunal noted that the Facebook pages submitted by the applicant did not refer to the game even though there were multiple posts in the surrounding period. Similarly, there was nothing on the team’s website about the game. The applicant submitted to the Court that this absence was understandable given the applicant’s oral evidence (Tribunal transcript p.23) that the media was not at the game because of general threats made by the military about reporting on its activities. He also argued that the Tribunal did not mention that evidence. This complaint is misconceived. Whether or not the absence of media was understandable, it was open to the Tribunal to take note of an absence of any mention of the game in social media. When the Tribunal asked the applicant why that would be, he replied that he did not know: Tribunal transcript p.24. There was nothing fanciful or capricious about the Tribunal’s reasoning, and nothing ex facie wrong or unreasoned. There is no basis for any finding of apprehended bias in this passage.

13. The applicant next complains about the finding by the Tribunal, at [20] of its reasons, that the applicant had said to the Colonel that he did not support the current government. That complaint is unfounded. The transcript of the Tribunal hearing (at p.28) reveals the following passage at the hearing:

    [Tribunal]:Tell me what you actually told him.

    [Applicant]:  I told him that – I, I won’t accept his offer because I am satisfied with I am doing with the … and at the same time I don’t believe it’s me accepting work in the Army, the Fiji Army, meaning that I support the coup, the … I don’t believe that, the non-elected government.

    [Tribunal]:Did you say that to him?

    [Applicant]:  I did say Ma’am.

14. The third complaint is that, contrary to the Tribunal’s finding at [21], there was no inconsistency between the evidence of the applicant and that in the letter of his colleague at the rugby league team (referred to earlier in these reasons at [6]). The critical part of the Tribunal’s reasons was:

    … Specifically, the applicant’s oral evidence to the Tribunal made no reference to [the Colonel] warning the applicant that “his anti-military attitude would not take him anywhere and that he was choosing a dangerous path in his life if he does not accept his job offer” or to any “intense heated conversation” taking place between himself and [the Colonel] on that occasion. Also in the applicant’s evidence to the Tribunal it was the applicant who left the conversation to join his team, while in [the colleague’s] letter it was the Colonel who left, leaving the applicant with “fear on his face” as he did so. …

15. The particular issue taken with this passage is that the colleague did not state that the Colonel left. I disagree. Her letter said relevantly:

    … I can see some fear on him on his face when [the Colonel] left.

16. It is open to read that statement to mean that it was the Colonel and not the applicant who left the conversation. Thus it was open to find that the applicant’s evidence (which that he had left the conversation) was inconsistent with that of his colleague.

17. The next complaint made by the applicant is that the Tribunal rejected the claim that the applicant had been detained, beaten and otherwise mistreated even though it found that his evidence about it was consistent and detailed. This, it was said, was in contrast to other instances where the Tribunal rejected his evidence because it was vague. The submission was that this inconsistency of approach indicated that the Tribunal appeared to have made up its mind and was looking for different ways in which to reject his evidence.

18. This submission is based on a misunderstanding of the Tribunal’s reasons. While the Tribunal accepted that the applicant’s evidence was consistent and detailed, it reasoned that because the applicant was, for other reasons, familiar with the location at which he claimed to have been mistreated, the consistency in his evidence was not, itself, determinative of whether the claim should be accepted. Rather, it said, the evidence had to be assessed in the context of all of the evidence including the concerns detailed elsewhere in its reasons: [22]. That reasoning was cogent and indicates a real attempt to grapple with the facts of the application rather than to manufacture different reasons for rejecting it. It is consistent with the fact that decision-makers often express their reasons sequentially even though they have assessed the evidence as a whole before doing so: see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1169 [14] per Gleeson CJ.

19. Next, the applicant complains that, when the Tribunal addressed the availability of support from his family overseas, it did not take into account his evidence that they would not help him: see Tribunal’s reasons at [23] and Tribunal transcript at p.43. However, the Tribunal did take that into account. It referred to his evidence in this respect earlier in its reasons at [12] and, contrary to the applicant’s submission, did not misunderstand the evidence. The applicant did say at the hearing that his family sent money from overseas from time to time: Tribunal transcript p.48.

20. The applicant next asserts that the Tribunal rejected the applicant’s claim that he was harassed in October 2012 simply because he could recall the exact date when he could only recall the month and year of other claimed attacks: [25] of the Tribunal’s reasons. I do not read the Tribunal’s reasons to say that that was the reason it rejected this particular claim. It did not say so expressly. Rather, the Tribunal simply recounted that, at the hearing it had asked him how he remembered the date of the incident and recorded his answer. No conclusion was drawn from it in the reasons.

21. Similarly, the applicant argues that the Tribunal rejected his claim to have been detained and mistreated in November 2012 purely because of an inconsistency in dates. Once again, that is a misreading of the Tribunal’s reasons. The point of interest to the Tribunal was that the applicant claimed to have been arrested and detained for five days in connection with the escape of a number of prisoners that had occurred in September. In particular, the Tribunal was concerned as to why the applicant was treated in that manner in November when the escapees had all been recaptured within a week some two months earlier. All the Tribunal drew from the question of dates was that the applicant was “not forthcoming and lacked detail to the point of being vague and unconvincing”: [25] of its reasons. That was a matter of assessment of evidence given at a hearing. It was not the only matter upon which the Tribunal relied to reject this particular claim.

22. Finally, the applicant argues that the way in which the Tribunal dealt with corroborating evidence suggested apprehended bias. This argument appeared to be based on the assertion that the only reason for which the Tribunal gave little weight to the letters of the applicant’s mother and that of his colleague was the relationship of the authors with the applicant. This is not a case, however, where that was the only basis for the Tribunal’s reasons in this respect. Unlike the Tribunal in Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105, the Tribunal here had regard to the contents of the letter and made its assessment on the basis of those contents as well as the relationship of the authors with the applicant: [28] – [30] of the Tribunal’s reasons.

23. For those reasons, none of the individual matters relied on by the applicant indicated any error in reasoning or any caprice in decision-making. There is, in any event, a further answer to this ground. In each case the applicant relies upon particular analysis by the Tribunal of evidence before it without regard to the whole of the Tribunal’s statement of reasons. For example, in criticising the way in which the Tribunal dealt with the evidence concerning the conversation between the military Colonel and the applicant after the football game in May 2012, the applicant submits that nothing in the “three pieces of evidence is so inconsistent as to lead to the dismissal of the evidence in its entirety” and “it is not sufficiently clear … to support the Tribunal’s conclusion that it constituted a material inconsistency in the evidence”. What the applicant’s submissions overlook is that the Tribunal’s reasons for rejecting the applicant’s credibility were not based upon any single matter but rather on a combination of a number of matters in respect of only some of which the applicant takes issue. Thus, in a passage elsewhere quoted by the applicant in his submissions, the Tribunal stated (at [10]):

    … While the matters of concern are not singularly determinative in and of themselves, cumulatively they leave the Tribunal unable to be satisfied of the truth of significant and central aspects of his claimed circumstances. …

24. For all of those reasons the ground of apprehended bias on the part of the Tribunal is not made out.

Conclusion

1. There is no jurisdictional error in the Tribunal’s reasons. The decision turned ultimately on findings of credit that were open on the material before it.

2. Consequently, the application will be dismissed with costs. 

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  6 March 2015