SZVCR v Minister for Immigration

[2016] FCCA 895

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 895

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal complied with the Migration Act 1958 (Cth) – whether the Tribunal failed to afford the applicants procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 430A, 476

Judiciary Act 1903 (Cth), s.78B

Federal Circuit Court Rules 2011 (Cth), r.11.11

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104; (2013) 214 FCR 374
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609

First Applicant: SZVCR

Second Applicant: SZVCS

Third Applicant: SZVCT

Fourth Applicant: SZVCU

Fifth Applicant SZVCV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2614 of 2014

Judgment of: Judge Nicholls

Hearing date: 7 March 2016 and 6 April 2016

Date of Last Submission: 6 April 2016

Delivered at: Sydney

Delivered on: 20 April 2016

REPRESENTATION

First Applicant: In person, on behalf of the second applicant, and as litigation guardian for the third, fourth and fifth named applicants

Solicitors for the Respondents: Ms C Hillary of DLA Piper

Orders

1. The application made on 22 September 2014 is dismissed.

2. The first and second applicant pay the first respondent’s costs set in the amount of $7,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2614 of 2014

SZVCR

First Applicant

SZVCS

Second Applicant

SZVCT

Third Applicant

SZVCU

Fourth Applicant

SZVCV

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 September 2014 seeking review of the decision of the Refugee Review Tribunal, now the “Administrative Appeals Tribunal” (“the Tribunal”), made on 28 August 2014, which affirmed the decision of the Minister’s delegate to refuse Protection (Class XA) visas to the applicants (“the visas”).

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

2. The applicants are citizens of Pakistan. The first and second applicants are husband (“the applicant”) and wife (“the second applicant”). Their children are the third, fourth and fifth named applicants. The applicant arrived in Australia on 14 January 2008 on a student visa (CB 12). The applicants applied for protection on 13 January 2012 (CB 1 to CB 25). The other applicants applied as members of his family unit and made no claims to protection in their own right (CB 25 to CB 38 and CB 48 to CB 66 and CB 71 to CB 81). The applicant provided further supporting documents to the delegate on 28 February 2012 (CB 43 to CB 44) and with the application for inclusion to the application for a protection visa for the fifth applicant on 20 August 2013(CB 82 to CB 139).

3. The delegate of the Minister refused the application for protection visas on 15 November 2013 (CB 140 to CB 162). The delegate was not satisfied that the applicant’s fear of persecution in Pakistan was

   
   

   well-founded. Further, the delegate was not satisfied that there was a real chance that the applicant would be subject to significant harm if he returned to Pakistan.

The Tribunal

1. The applicants applied to the Tribunal for review of the delegate’s decision on 3 December 2013 (CB 163 to CB 169). The applicants provided written submissions to the Tribunal before the hearing on 28 April 2014, a declaration made by the applicant, a report from a psychiatrist dated 13 December 2012, copies of a (property) sale agreement, a “First Information Report” (“FIR”), and copies of bank cheques (CB 206 to CB 243).

2. The applicant, and the representative, attended a hearing before the Tribunal on 2 May 2014 (CB 244 to CB 246). The applicants provided further written submissions to the Tribunal after the hearing on 30 May 2014, which included email correspondence between the applicants’ agent and Sindh police, photographs and a translated “Epitaph” relating to his father (CB 260 to CB 278).

3. The Tribunal affirmed the delegate’s decision on 28 August 2014 (CB 282 to CB 297). The Tribunal set out a summary of the applicant’s claims ([1] at CB 283):

   “…He claims that his life will be in danger throughout Pakistan because of his own and his father’s involvement in a political party, the Awami National Party (ANP).  He has claimed that as a result of their involvement he and his father received threats from another political party, the Muttahida Qaumi Movement (MQM), and that his father was killed on 12 September 2011.  He has said that his cousin Atif who lived with his family in Karachi was also killed on 1 December 2011 and that he believes that he will be next…”

4. The applicant’s claims and evidence, as discussed before the Tribunal, are set out in detail in the Tribunal’s decision record ([3] at CB 283 to [27] at CB 290). The Tribunal noted that the applicant never produced death certificates in relation to his father, as he had indicated he would in answer to question 12 of Part B of the protection visa application form ([12] at CB 285). It noted that the applicant produced to the Tribunal “material downloaded from the internet” regarding the situation in Karachi and information regarding extortion by criminals ([12] at CB 285).

5. The Tribunal referred to the forensic psychiatric report dated 13 December 2012, which indicated that the applicant fulfilled the criteria for post-traumatic stress disorder, and found that the applicant was able to participate effectively in the Tribunal hearing ([28] at CB 290).

6. The Tribunal accepted that although Lyari, the applicant’s hometown area in Karachi in Pakistan, was a Pakistan People’s Party (“PPP”) stronghold, this did not mean that other parties were not active there, or that the PPP itself was not “attacked” there (referring to the applicant’s representative’s submissions of 30 May 2014) ([29] at CB 290). 

7. However, while considering this, the Tribunal held that ([29] at CB 290):

   “…I consider that the fact that Lyari is a PPP stronghold suggests that, if [the applicant’s] father had been actively supporting and campaigning for the ANP in the area since 1999, and if [the applicant] himself had been assisting his father, at least since 2003, by doing things like ‘chalking’, distributing pamphlets, talking to voters and checking voter lists, the people with whom they would have had problems would have been people associated with the PPP.  [The Applicant], however, has said that they had problems with the MQM and that he believes that his father and his cousin were killed by the MQM in 2011…”

8. The Tribunal held, as raised with the applicant earlier at the hearing, that the fact that he never suggested that he or his father had any problems with the PPP in Lyari “cast doubt” on whether the applicant was telling the truth about his and his father’s involvement with the Awami National Party (“ANP”) and the problems resulting from that involvement ([29] at CB 290).

9. The Tribunal found it difficult to accept that the applicant’s father and cousin had been “warned” in 2006 that whenever the Muttahida Qaumi Movement (“MQM”) got the chance they were going to kill them, and that they had fired shots at his father and cousin, but that his father and cousin had continued living their lives “as usual” in Karachi, Pakistan ([30] at CB 290 to CB 291).

10. Further, The Tribunal did not accept the applicant’s explanation for travelling to and from Dubai to Pakistan in 2004 – 2006 and remaining unharmed, as it “did not suggest that his life was being threatened”. The Tribunal considered that the applicant’s actions “cast doubt on whether there was in fact a threat to him at all” ([30] at CB 290 to CB 291).

11. The Tribunal considered the applicant’s explanation for returning to Pakistan a number of times since his arrival in Australia in January 2008. The Tribunal considered it ([31] at CB 291):

    “…relevant that even after he has said that his circumstances had changed, following the death of his father in September 2011, he did not apply for a protection visa but continued to pursue his plan of applying for permanent residence on skilled grounds.  I consider that his delay in applying for a protection visa is relevant to the genuineness, or at least the depth, of his claimed fear of being persecuted if he returns to Pakistan…”

12. The Tribunal accepted that the applicant’s father had died in September 2011, but did not accept that the photographs of the applicant’s father’s grave supported his claim that his father was killed because of his association with the ANP ([31] at CB 291).

13. The Tribunal had regard to a copy of an FIR made by the applicant’s cousin, in relation to his father’s “killing”, and had regard to a translated copy of a sale agreement for his family’s flat. The Tribunal noted that the sale agreement suggested that his mother had made the agreement in June 2011, with possession of the property to be handed over on 20 August 2011, and that this was three weeks before the applicant had said his father was killed. The Tribunal noted that this was inconsistent with the applicant’s claim that the property was sold after his father had died. The Tribunal noted that this inconsistency was based on what the applicant had himself stated and what was set out in the FIR. The Tribunal considered that this inconsistency cast doubt on whether the sale agreement document was “genuine” ([32] at CB 291).

14. The Tribunal noted that the applicant claimed that the person who had told his cousin about his father’s death had threatened the applicant’s life and was aware that the applicant was out of the country ([33] at CB 291 to CB 292). The Tribunal found it difficult to accept that the caller had made a specific threat to the applicant’s life in 2011 when the applicant had been in Australia since January 2008. Further, that on the occasions that he had returned to Pakistan he had not stayed with his family, but with his mother-in-law.

15. The Tribunal considered the applicant’s explanation, that there was a “feud” in the area, and that whenever the ANP or the MQM had the opportunity they would kill each other. The Tribunal considered that ([33] at CB 292):

    “…the claim that a specific threat was made against [the applicant] at this time casts doubt on whether the FIR is genuine.”

16. The Tribunal considered country information before it regarding document fraud in Pakistan. In this context it reported that at the hearing the applicant stated that there was no reason for him to lie, and that “there were four other lives related to him so he could not take the risk of returning” to Pakistan. The applicant submitted to the Tribunal “two email messages both sent from a gmail.com email address, the second of which purports to confirm that the FIR” was genuine. The applicants’ representatives had some obvious “disquiet” about the response to the first email message, and requested that the response to the second email come from the “official email address of the Sindh Police” ([34] at CB 292).

17. The Tribunal noted that the second email message did not come from the official email address. The applicants’ representative invited the Tribunal to telephone the police in Karachi. The Tribunal found that it was “not for the Tribunal to make out” the applicant’s case for him ([34] at CB 292).

18. Having regard to country information before it, the Tribunal gave “greater weight” to the problems the Tribunal found with the applicant’s evidence, as it had outlined, than to the FIR or the translated copy of the property sale agreement. The Tribunal accepted that the applicant’s father had died but did not accept that his father or cousin were killed by the MQM for their involvement with the ANP, or that the applicant was threatened by the MQM because of his father’s involvement with the ANP ([35] at CB 292).

19. Further, it found ([35] at CB 292):

    “…I do not accept on the evidence before me that there is a real chance that, if [the applicant] returns to Karachi now or in the reasonably foreseeable future, he will be threatened, killed or otherwise persecuted by the MQM, Baloch gangs or gangs in Lyari more generally for reasons of his real or imputed political opinion (in support of the ANP) or his membership of the particular social group constituted by his family (based on his relationship with his father and his cousin).  I do not accept that [the applicant] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.”

20. The Tribunal accepted that “extortion by gangs [was] a problem in Lyari”. The Tribunal noted that the applicant had been employed as a clerk for a company, and in a hotel, but noted the applicant’s own evidence, which suggested that the extortionists primarily targeted businesses. The Tribunal did not accept that there would be a “real risk” that the applicant would be subject to extortion by criminal gangs ([36] at CB 292 to CB 293).

21. The Tribunal noted the applicants’ representative’s submissions of 28 April 2014 regarding levels of violence in Karachi. However, the Tribunal did not ([37] at CB 293):

    “…accept that there [were] particular factors which [would] increase the risk of [the applicant] being harmed in the context of this violence and, having regard to his own evidence and the relevant country information, I did not accept that there [was] a real risk that he [would] suffer significant harm in the context of this violence in Karachi.”

22. The Tribunal did not accept that there was a real risk that the applicant would suffer significant harm as defined in s.36(2A) of the Act if he returned to Pakistan ([37] at CB 293). It was not satisfied that the applicants met the criteria for grant of the protection visa as set out in s.36(2)(a) or (aa) of the Act ([38] at CB 293).

Application before the Court

1. The grounds of the application to the Court were not particularised. They are in the following terms:

   “1. The Refugee Review Tribunalcommitted jurisdictional error in failing to comply with Migration Act.

   2. The jurisdictional error committed by Refugee Review Tribunal handing down its decision.

   3. The Refugee Review Tribunaldeprived me of Natural Justice.”

   [Errors in original.]

Before the Court

1. The applicant appeared at a first Court date on 22 October 2014. He was assisted by an interpreter in the Urdu language. The applicant was appointed the litigation guardian of the third, fourth and fifth named applicants pursuant to r.11.11(1) of the Federal Circuit Court Rules 2011 (Cth). The applicants were provided with the opportunity to file any amended application and any evidence by way of affidavit. The applicant filed an affidavit made by him on 14 July 2015. The matter was set down for final hearing on 7 March 2016, by consent on 7 April 2015.

2. On that day a solicitor, Mr K Syed of ZRA Lawyers, Marrickville appeared for the applicants. He explained that he had received instructions on the preceding weekend and sought an adjournment of the hearing to enable him to prepare for the hearing.

3. The submissions in support of the adjournment contained a number of unsatisfactory and unexplained elements. For example, Mr Syed acknowledged he had no relevant experience in migration matters, he was unable to give even a basic indication of any jurisdictional error on the part of the Tribunal, and he had made no attempt to contact the Minister’s solicitors to put them on notice of his intention to appear for the applicants or that he would seek an adjournment.

4. In any event, the request for the adjournment was granted. The matter was adjourned until 6 April 2016. The applicants were given the opportunity to file any amended application and any evidence by way of affidavit. The applicants’ solicitor was required to file a notice of appearance. No such notice has been filed.

5. When the final hearing resumed on 6 April 2016, the applicant appeared in person and was assisted by an interpreter in the Urdu language. He confirmed with the Court his understanding of his appointment as the litigation guardian of the third, fourth and fifth applicants. Further, that the second applicant knew of the Court event, and that the applicant would speak on her behalf.

6. As stated above, the applicant had filed an affidavit made on 14 July 2015. This had annexed to it a death certificate and a post-mortem report relating to the applicant’s father. The Minister submitted that the affidavit did not go to a fact in issue, as the applicant submitted that the documents were not before the Tribunal. I agreed with the Minister’s submission and noted that the applicant, by attempting to agitate new matters before the Court, appeared to have a mistaken view of the Court’s powers and jurisdiction. The Court attempted to explain this to him. The affidavit was not read into evidence.

7. The applicant had also filed an affidavit made on 24 March 2016. This document appeared to be a mixture of submissions, complaints about the Tribunal decision, and further, set out what are said to be “Grounds of Appeal”. It is clear that the latter part of the document, at page 4, is the product of some pro forma cutting and pasting. In it, the applicant appears to assert that he “appeals” the whole of the judgment “from” the Federal Court.

8. Before the Court the applicant explained that he had drafted the “affidavit” with the assistance of a friend who spoke and wrote in English. He could not assist the Court as to the meaning of what were referred to as the “grounds”. Further, he did not appear to have actual knowledge of what was contained in the document. The Minister sought to have the affidavit treated as submissions. I agreed that that was the appropriate way in which to treat the document.

9. The terms of the “Grounds of Appeal” as contained in that document, are as follows:

   “1. [Migration Act 1958, s32(1)a, was not observed proper1y and RRT member was not acting in good faith in decision making process.]

   2. [The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in Commonwealth constitution.]

   3. [The RRT deprived me of natural justice.]”

   [Errors in the original.]

10. “Ground one” in the “affidavit” appears to be a particular to ground one of the application. Ground three of the application is identical to the ground in the “affidavit”. These are addressed below.

11. “Ground two” of the “affidavit” is “meaningless” in the absence of particulars. The applicant was unable to explain it. Plainly the decision does relate to the Tribunal’s jurisdiction under the Act. As for the reference to the “Commonwealth constitution”, I agree with the Minister that the ground does not provide for any consideration of a constitutional question such as to require the relevant “s.78B Notices” to be issued (s.78B of the Judiciary Act 1903 (Cth)).

1. Paragraphs 1-7, 10, 13 and 15 – 23 of the “affidavit” are not relevant to a fact in issue before the Court. They, in part, assert claims already put to the Tribunal, or seek impermissible merits review from the Court. They were not admitted as evidence.

2. Paragraphs 8 and 11 assert a denial of procedural fairness and, in essence, repeat ground three of the application. Paragraph 9 is a mere assertion of jurisdictional error. Paragraph 12 takes issue with the Tribunal’s adverse findings as to the applicant’s credibility. Paragraph 14 confirms the Tribunal’s findings as to the applicant’s return to Pakistan on three occasions and at a time when he said he feared harm. These paragraphs were not admitted as evidence. However, as stated above, they were taken to be in the nature of submissions.

3. Before the Court, the applicant was unable to satisfactorily explain or expand on the grounds of his application, or the “grounds” in the “affidavit”. He confirmed that the lawyer, who had appeared for him, and his family, previously was no longer representing or assisting him.

4. He also stated he had spoken to “other” lawyers but was unable to retain their services because of the cost. As stated above, the applicant told the Court that the “grounds” in the “affidavit” were prepared by a “friend”. In all, he applicant was unable to explain the assertions of legal error made in this document.

5. Otherwise, the applicant’s oral complaints to the Court were as follows:

   1)He was not believed by the Tribunal. This appeared to be a reference to the Tribunal’s questioning at the hearing and its concerns put to him about his claims and about documents provided to the Tribunal through his “RACS lawyer”. The lawyer from the Refugee Advice and Casework Service gave certain documents to the Tribunal on his behalf, including country information. The complaint appeared to have two elements:

   i)The Tribunal stated that the MQM party did not attack “people” in his home area. This was not true. The “RACS lawyer” produced “evidence” (country information) that they had done so.

   ii)The applicant complained that the Tribunal found the documents were not genuine, and did not accept his explanation at the hearing that they were.

   2)His circumstances changed when his father had been killed. He could not go back to Pakistan after this had occurred.

   3)He has four children who were born in Australia (three of whom were applicants in this matter, the other was born after the application was made to the Court). They had never been to Pakistan and there was “no point” in them going there. [I note that one was born in Pakistan, but had come to Australia at a very young age.]

   4)He had an “accident” and a psychiatrist’s report was provided to the Tribunal.

Consideration

1. Given that the grounds of the application and the “Grounds of the Application”, as contained in the “affidavit”, lack any particularity it is convenient to deal separately with the applicant’s submissions as he was unable to explain the relevance of his submissions to any of the grounds.

2. The first complaint that he was not believed by the Tribunal is factually correct as it related to certain key parts of his evidence and claims before the Tribunal. The Tribunal did not believe the applicant on central aspects of his claims. The evidence before the Court reveals that it put him on notice of its concerns at the hearing. It gave cogent reasons for its disbelief. In the circumstances, the Tribunal’s adverse findings as to the applicant’s credibility in key parts of his claims were all reasonably open to the Tribunal on what was before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). No legal error is apparent.

3. Further, to the extent that the applicant appeared to complain that the Tribunal’s disbelief was expressed through its questioning at the hearing, he has provided no evidence by way of transcript of what occurred at the hearing. The only relevant evidence before the Court, therefore, is contained in the references to what occurred as set out in the Tribunal’s decision record. As stated above, those references reveal that the Tribunal properly put the applicant on notice about its concerns about his evidence and gave him the opportunity to comment. No legal error is revealed.

4. The applicant’s specific complaint in this context was that the Tribunal did not consider his evidence that the MQM conducted attacks in his home area, despite the “evidence” provided by the “RACS lawyer”.

5. The applicant’s complaint appears, initially, to be directed to the Tribunal’s decision record at [23] (at CB 288 to CB 289). The Tribunal reported that at the hearing the Tribunal put to the applicant that it was unlikely, in the circumstances that the MQM would have threatened him in 2011. The applicant responded that there was a “feud” in his home area and the MQM would take the opportunity to kill “ANP people”.

6. The Tribunal put to the applicant that his assertion did not accord with independent country information, which indicated that his home area was a “PPP” stronghold (a party opposed to the MQM). Their strength had been demonstrated in the incident in 2012 when the PPP fought off an armed attack by government authorities. The Tribunal told the applicant it had difficulty in these circumstances accepting his claim that he had problems with the MQM in his home area. The Tribunal noted that the applicant “agreed that the PPP had a hold in Lyari town” (the applicant’s home area – at [23] at CB 288 to CB 289).

7. It is clear that the Tribunal did consider his evidence. It was not persuaded by it. The applicant’s complaint, in the circumstances, that the Tribunal did not “consider” his claims is simply a disagreement with the Tribunal’s finding that it did not accept his claim to be at risk from the MQM in his home area. This complaint therefore seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

8. The applicant also complained that in 2012 his circumstances had changed when his father had been killed and that this was supported by an FIR concerning his father’s death (see [32] at CB 291 to [33] at CB 292).

9. The Tribunal referred the applicant to information from the Department of Foreign Affairs and Trade (“DFAT”) to the effect that “FIRs are not difficult documents to produce fraudulently… [i]t has also advised that document fraud is extremely common in Pakistan” ([34] at CB 292). Further, the applicant was put on notice that the Tribunal had difficulty in accepting he was telling the truth in relation to the nature of his father’s death and the FIR.

10. As stated above, after the hearing, the applicant’s representative submitted copies of email correspondence to and from an email address apparently in Pakistan to the Tribunal (CB 266 to CB 269). In its decision record the Tribunal noted that the emails (from Pakistan) were both sent from a particular email address. One of the emails purported “to confirm that the FIR which [the applicant] produced is genuine” ([34] at CB 292).

11. The Tribunal then stated ([34] at CB 292):

    “…His representatives obviously had some disquiet about the response they received to their first email message because they asked that a response come from the official email address of the Sindh police but the second email message which they produced did not come from this address.  As referred to above, they invited the Tribunal to telephone the Khokrapar Police Station in Karachi but they did not suggest that they had contacted the police station themselves and it is well-established that it is not for the Tribunal to make out [the applicant’s] case for him.”

12. There are two matters relevant here. First, contrary to the applicant’s complaint now, the Tribunal did consider his claim relating to his father, and the documents he produced in support of this claim. No legal error arises in this circumstance.

13. Second, this is not a case where the Tribunal failed to make an inquiry involving a critical fact, the existence of which was easily ascertained, and which might have affected the decision (Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]). There is nothing on the evidence to suggest what any inquiry could have revealed such as to assist the applicant. No legal error is revealed.

14. The applicant’s submissions to the Court concerning his children cannot assist in revealing jurisdictional error on the part of the Tribunal. One child was not an applicant before the Tribunal. The other three were. On the evidence their claims to a protection visa were dependent on their father’s application. No separate claims were made on their behalf. The applicant’s complaint, therefore, does not reveal jurisdictional error.

15. The applicant also made reference in his submissions to the Court to a psychiatrist’s report. It was not clear what legal error, if any, was being asserted in this regard.

16. As recorded by the Tribunal, the applicant’s representative provided a psychiatrist’s report to it stating that the applicant appeared to fulfil the criteria for Post-Traumatic Stress Disorder. At the hearing, the applicant stated that he was on medication which made him forget things. The Tribunal considered this at [28] of its decision record (at CB 290). Its assessment and findings were reasonably open to it on what was before it. No breach of s.425 of the Act is made out (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 and Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]). No legal error is revealed.

17. Ground one of the application asserts that the Tribunal failed to comply with the Act. Given its broad and general nature, and in the absence of particulars and any relevant explanation by the applicant to the Court, this ground lacks specificity, and, further, is meaningless. In any event, on what is before the Court, no such failure is suggested. No legal error is made out in ground one.

18. Ground one of the “affidavit” asserts a breach of s.32(1)(a) of the Act. There is, and was not at the relevant time, any such sub-paragraph in the Act.

19. Ground one of the “affidavit” also asserts that the Tribunal member was not acting in “good faith”. If this is an allegation of bias on the part of the Tribunal, then there is no basis for this mere assertion in the evidence before the Court (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] and [127], and see also SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). No legal error is revealed.

20. Ground two of the application asserts jurisdictional error by the Tribunal in handing down its decision. Again no particulars, or explanation, have been provided.

21. As the Minister submitted, s.430A of the Act relates to notifying parties of the Tribunal’s decision. Section 430A of the Act was, at the relevant time, in the following terms:

    “430A  Notifying parties of Tribunal’s decision (decision not given orally)

    (1)  The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:

    (a)  within 14 days after the day on which the decision is taken to have been made; and

    (b)  by one of the methods specified in section 441A.

    (2)  A copy of that statement must also be given to the Secretary:

    (a)  within 14 days after the day on which the decision is taken to have been made; and

    (b)  by one of the methods specified in section 441B.

    (3)  A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.”

22. On the evidence before the Court, I agree with the Minister’s submission that the Tribunal complied with s.430A of the Act ([23] of the Minister’s submissions):

    “The first respondent respectfully submits that the RRT did comply with section 430A of the Act, and therefore there is no error in the handing down of its decision.

    23.1 The applicants were notified of the decision of the RRT, dated 28 August 2014, by facsimile sent to the applicant's agent on 29 August 2014.

    23.2 The facsimile used by the RRT was the facsimile number provided by the applicant's agent in the RRT application form.  The applicant's agent was also appointed to act on the applicants' behalf and to be their authorised recipient.

    23.3 The decision was therefore sent within 14 days visa the method in section 441A(5).”

23. In any event, any such failure would not have revealed jurisdictional error (Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104; (2013) 214 FCR 374 at [11] per Buchanan J). No legal error is revealed.

24. Ground three of the application and ground three of the “affidavit” assert that the Tribunal deprived the applicant of natural justice. No particulars are provided. Given the applicant’s submission to the Court, the complaint appears to be about the outcome of the review, rather than the process adopted by the Tribunal (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 (2010) 243 CLR 164).

25. In any event, there is nothing in the evidence before the Court to say that the Tribunal committed any such breach. This is a case to which s.422B of the Act, contained in Division 4 of Part 7 applies (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214).

26. The applicants were invited to a hearing pursuant to s.425 of the Act. It was a meaningful opportunity for the applicants to give their evidence. On the Tribunal’s account, the only relevant evidence before the Court, the issues in the review were discussed. The applicant could have been in no doubt about the Tribunal’s concerns.

27. While the Tribunal made reference to country information before it, this fell within the exemption in s.424A(3)(a) of the Act from the obligation in s.424A(1) of the Act. In relation to country information provided by the applicant, this was also caught by s.424A(3)(b) of the Act. No other information needed to be put to the applicant given the provisions of ss.424A(b) and (ba) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609). No legal error is made out in ground three of the application or ground three of the affidavit.

Conclusion

1. In all, there is no jurisdictional error in the Tribunal’s decision. It is appropriate that the application to the Court be dismissed. I will make that order.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 20 April 2016