SZVHW v Minister for Immigration

[2015] FCCA 3055

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3055

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958 (Cth), s.425

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

Applicant: SZVHW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2901 of 2014

Judgment of: Judge Barnes

Hearing date: 30 October 2015

Delivered at: Sydney

Delivered on: 30 October 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed. 

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,000. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2901 of 2014

SZVHW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 2 October 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, who is in his early 40s, is a citizen of Pakistan who first arrived in Australia on a visitor visa in September 2008.  He departed in December 2008 and returned to Australia in March 2013.  He applied for a protection visa in April 2013. 

3. In essence, the Applicant claimed that he was a Sunni Muslim who had converted to being a Shia Islam and that he was a member and office bearer in the Tehrik-e-Jafaria (a Shia organisation) with responsibilities including organisation of events for religious occasions and involvement in meetings, press coverages and processions.  He claimed that as a result he had been targeted by Sunni extremists. 

4. He attended an interview with the delegate.  His application was refused and he sought review by the Tribunal.  He provided documentation in support of his claims.  His migration agent made a written submission addressing concerns about aspects of the delegate’s decision. 

5. The Applicant attended the Tribunal hearing accompanied by his migration agent.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.  It appears from the Tribunal decision that the advisor also made oral submissions at the hearing.

6. In its reasons for decision the Tribunal summarised the Applicant’s claims, including that he had both Sunni and Shia friends at school, that he became friends with Shia Muslims and began attending informal meetings.  The Applicant claimed that he subsequently decided to convert to the Shia branch of Islam and that he later became a member and office bearer of the Tehrik-e-Jafaria and gradually increased his participation. 

7. The Tribunal recorded that the Applicant claimed that since that time he had been beaten and abused by members of an anti-Shia extremist group (the Sipah-e-Sahaba) which had later regrouped under another name and that he was on a list of persons targeted by that group because of his conversion and membership of the Shia organisation.

8. The Tribunal referred to the documents provided in support of the application, in particular a January 2009 letter said to be from the President of the Tehrik-e-Jafaria promoting the Applicant to the position of General Secretary in a particular district and also two First Information Reports from 2009 referring to an attack by unknown persons while the Applicant was travelling on his motorcycle and an attack when terrorists forced him to stop his car after a wedding.  The Tribunal recorded that the Applicant had told the delegate during the interview that an untranslated newspaper clip related to a 2011 incident when his office was attacked. 

9. Under the heading “Assessment of Claims and Evidence” the Tribunal considered the Applicant’s claim during the hearing that there had been problems with the interpreting in relation to his oral evidence to the delegate.  The Tribunal was prepared to accept that the Applicant had been unable to express himself fully during the departmental interview, but was of the view that he had been given considerable opportunity during the Tribunal hearing to explain aspects of his claims and nonetheless had considerable difficulty doing so.  The Tribunal considered that this was due to the fact that the Applicant had manufactured his claims to fear harm in Pakistan.  It was not satisfied that he was a truthful witness or that he had given a truthful account of his reasons for leaving Pakistan and seeking protection.  It did not accept that he had converted from the Sunni to the Shia branch of Islam or that he was ever harmed as a result.  It set out its reasons for reaching these conclusions.

10. First, the Tribunal found that the Applicant’s evidence in relation to his conversion was unpersuasive.  In that context the Tribunal acknowledged the representative’s submission in relation to the Applicant’s evidence in the departmental interview, his comment that the delegate’s findings were based on a stereotypical view of Muslim families and his suggestion that responses may vary depending on a person’s educational and emotional levels.  The Tribunal made no adverse findings in relation to the Applicant’s evidence on this issue in the departmental interview.  It accepted that the Applicant had exhibited some understanding of particular aspects of the Shia faith and its history and the differences between the Shia and Sunni branches of Islam.  The Tribunal also accepted that a hearing was a stressful process in which it was difficult for an applicant to articulate particular aspects of his or her religious beliefs.  However the Tribunal recorded that this issue had been discussed extensively during the hearing.  The Tribunal was of the view that the Applicant’s evidence to it in relation to his conversion and reasons for conversion was unpersuasive. 

11. The Tribunal had regard to the fact that the Applicant had continually reverted to standard phrases and had considerable difficulty explaining the process of and the reasons for his conversion and also what had happened on the day he claimed he had converted (22 January 2009).  The Tribunal recorded that while the Applicant said that his conversion occurred on 22 January 2009, when asked a number of times about the significance of that date, he continually repeated that he had Shia friends and acquaintances and had been interested in the Shia faith since childhood.  He explained that he swore an oath on the Shia book.  The Tribunal recorded that when the Applicant was asked to provide more details about the process and the significance of the January 2009 date, he had to be asked a number of times before finally stating that this was the day on which he told his friends and the community that he had converted and they celebrated. 

12. The Tribunal accepted that conversion may be a gradual process and that there may not be a formal process, but given that the Applicant had nominated a specific date for his conversion, considered that his difficulty in elaborating and explaining the significance of that date in terms of his conversion cast serious doubt on his claims.  It also found unpersuasive his evidence as to his reasons for conversion at that time (in circumstances where he claimed to have been interested in the Shia faith all his life). 

13. The Tribunal asked the Applicant whether he had considered the danger involved in conversion, given that people were being targeted and killed across Pakistan simply for being Shia and he was married and had eight children for whom he was responsible.  It found that the lack of knowledge revealed in his response that there were no problems in his village and that he did not know that Shia had been targeted until after he had been converted, but found that this lack of knowledge was not credible, having regard to his claims that he had been attending meetings and had Shia friends for several years.  It accepted that the province in which the Applicant lived was relatively peaceful in 2009, but had regard to the considerable evidence of suicide bombings and targeted attacks on Shias elsewhere in Pakistan which had been occurring for some years at that time.  The Tribunal did not accept that the Applicant would not have known that Shias had been targeted throughout Pakistan and that his conversion may be potentially dangerous.  The Tribunal was of the view that this evidence raised further concerns that the Applicant’s claims of conversion had been fabricated.  The Tribunal concluded:

    …although the applicant has been able to learn some aspects of Shia beliefs, and the differences between the Sunni faith and the Shia faith from the abundant sources available on this issue, he was unable to articulate the significance of the date 22 January 2009 in terms of his claimed conversion and his reasons for becoming involved in a religion that has the potential for danger from extremists. 

14. The Tribunal also had regard to the Applicant’s evidence regarding his involvement with Tehrik-e-Jafaria.  It acknowledged that the Applicant had provided a document dated 30 January 2009 stating that he had been “promoted” to the position of General Secretary on that date.  As indicated, it was prepared to accept that the Applicant may not have been able to express himself fully during the departmental interview when asked about the organisation and his role, but did not accept that his evidence at the Tribunal hearing (including in relation to why he had been made General Secretary of the organisation only eight days after his conversion and his response when asked about the aims and objectives of the organisation) was persuasive.  The Tribunal had regard to the Applicant’s failure to explain the aims and objectives of the organisation in light of country information in that respect which had been put to him.  In particular, the Applicant had claimed that the organisation attempted to convert people, contrary to its website which indicated that it aimed to increase the participation of Shias in parliament and did not aim to create a Shia state. 

15. The Tribunal considered the advisor’s submissions that the Applicant would not have understood the meaning of the concepts of “objectives” or “aims” or “purpose”, that he was an ordinary person involved in a group which would have been essentially a social group and that his inability to explain these issues may have been due to his “IQ” or educational level.  However the Tribunal considered the Applicant’s vague and unpersuasive evidence about his involvement in this group raised further concerns that he had fabricated these claims in an attempt to establish that he had converted. 

16. Given that the Applicant told the Tribunal that he was involved with this organisation from 2009 until he left Pakistan in 2013, the Tribunal did not accept that he would not have any awareness of its aims or objectives.  It found that even if Tehrik-e-Jafaria may essentially be a social group in the Applicant’s village, he had claimed he was the General Secretary of that group and that this resulted in him being harmed and targeted and his office attacked.  The Tribunal was of the view that if the Applicant had genuinely been involved in this organisation as claimed he would have been able to exhibit a greater understanding of its aims, objectives and purposes.

17. The Tribunal found that aspects of the Applicant’s claims that he was targeted on two occasions in 2009, that there were further incidents thereafter including in 2011 when his office was attacked and that he had been on a target list prepared by Sunni extremists who wished to kill him since he became the General Secretary of the Tehrik-e-Jafaria organisation lacked credibility.  The Tribunal had regard to the fact that while the Applicant had initially stated that the untranslated newspaper report he had submitted referred to an attack on the office of a Shia organisation and mentioned that a person bearing his name had been attacked in his office by the Sipah-e-Sahaba, his representative (after reading the report) had stated that it also referred to some persons being badly injured but that the Applicant was not present and that the newspaper was not named or dated. 

18. The Tribunal found the Applicant’s evidence vague and unpersuasive.  It did not accept that he would be unable to recall the date on which his office was attacked (even if he was not present at that time), given that people were said to have been badly injured.  It also had regard to the fact that, despite his claims to have been viciously attacked in 2009 with iron bars and guns and about serious attacks in 2010 and 2011, he had remained in Pakistan for some years, notwithstanding that he had a sister residing in Griffith whom he had visited in 2008 and had visited the United Kingdom on five occasions since 2004.  It did not accept that the Applicant would not have made efforts to leave Pakistan following the claimed serious attacks, but would wait several years to do so and found that this was further adverse to his claims about his reasons for leaving Pakistan. 

19. On all the evidence, the Tribunal concluded that the Applicant had manufactured his claims.  It did not accept that he had converted in 2009 as claimed, that he had been in the process of doing so for several years or that he subsequently joined the Tehrik-e-Jafaria or was targeted in July or August 2009, threatened on the telephone or that his office was attacked by Shia extremists.  Hence it did not accept that the Applicant left Pakistan because he feared harm from persons who opposed his conversion.  It was of the view that he left Pakistan for entirely unrelated reasons. 

20. Hence, the Tribunal did not accept that the documents, including the two First Information Reports, the letter from Tehrik-e-Jafaria and the newspaper article which purportedly named the Applicant, were genuine and/or contained truthful information.  It also referred to the fact that, as discussed with the Applicant at the hearing, fraudulent documentation was readily available and easy to obtain in Pakistan.  The Tribunal stated that it had had regard to the representative’s offer to obtain further information in relation to the newspaper report but was not satisfied this would assist it, given the availability of all forms of fraudulent documentation in Pakistan and the fact that it did not accept the Applicant’s claims. 

21. The Tribunal stated that in reaching these conclusions it had had regard to the representative’s submissions, including the claims that the Applicant may have had difficulties responding to questions due to his educational level and IQ.  It reiterated that it had not drawn any adverse findings in relation to his evidence to the delegate, but was satisfied he had been given considerable opportunity at the Tribunal hearing to elaborate on his claims through an interpreter who he had indicated was appropriate and about whom neither he nor his representative had raised any concerns.  The Tribunal was not satisfied that the “problematic nature” of the Applicant’s evidence was due to his educational level or IQ, but rather because his claims had been fabricated in an attempt to provide a basis for a permanent visa application.

22. The Tribunal did accept that the Applicant had Shia friends and acquaintances with whom he mixed in Pakistan, but did not accept that this would result in a real chance he would be harmed on return.  It did not accept he had converted and found he was a Sunni Muslim.  It was not satisfied there was a real chance he would suffer serious harm for his religion or for any other Convention reason.  It found that he did not meet the Refugees’ Convention criterion. 

23. The Tribunal considered the complementary protection criterion.  It referred to the fact that it had not accepted the Applicant’s claims about conversion, joining the Tehrik-e-Jafaria, that he had ever been harmed for this reason or that there was a real chance he would be harmed for this reason on return.  It found he would not be harmed for reasons of his Sunni religion.

24. The Tribunal observed that the Applicant had not raised any other reasons apart from those connected with his conversion and claimed involvement with a Shia organisation for wishing not to return to Pakistan and had not made any claims relating to the general security situation.  Despite this, the Tribunal accepted that there was generalised violence in Pakistan and that the security situation remained unstable.  However it was not satisfied there was a real risk the Applicant would suffer significant harm due to the violence and security problems that existed in Pakistan.  It found that he did not meet the complementary protection criterion.  It affirmed the delegate’s decision.

25. The Applicant sought review by application filed in this Court on 20 October 2014.  There are four grounds in the application.  The Applicant did not take the opportunity to file an amended application or written submissions.  He was given the opportunity to address the grounds in oral submissions today and did so.  Much of what the Applicant said took issue with the Tribunal’s factual findings.  In essence, he claimed that he tried to explain his claims and clarify details for the Tribunal.  He also took issue with the fact that he submitted documents to the Tribunal, but was not believed.  He claimed that the Tribunal had not given serious consideration to his claims that his life was in danger and that his claims should be reconsidered.

26. Insofar as the Applicant seeks merits review, merits review is not available in this Court.  His claim that the Tribunal did not give serious consideration to his claims is contrary to the Tribunal reasons.  There is nothing in the material before the Court to indicate that the Tribunal failed to have regard to any integer of the Applicant’s claims.  Contrary to his claim that the Tribunal failed to give serious, in the sense of genuine or realistic, consideration to his claims, it is apparent that the Tribunal gave detailed consideration to all aspects of the Applicant’s claims.  The fact that the Tribunal did not accept the Applicant’s credibility or his claims does not, of itself, establish jurisdictional error.  In that respect I note generally that credibility findings are a matter for the Tribunal and in this case the Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave.

27. The Applicant appeared to suggest that it was for the Tribunal to prove that his claims were not true or his documents were not genuine.  That is not the case.  It is for an applicant to advance whatever evidence or argument he wishes to advance in support of his claim and the Tribunal must then decide whether that claim is made out (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1 per Gummow and Hayne JJ at [187]). It is not the case that the Tribunal is required to accept all claims made by an Applicant in the absence of contrary material or positive evidence to the contrary. The Tribunal is not in a position of a contradictor. It is to consider the claims and determine if they have been made out.

28. In oral submissions the Applicant claimed that the Tribunal did not consider the situation in Pakistan which he had tried to explain.  He also contended that there were issues with the current situation in Pakistan.  He relied on these factors in support of the proposition that the Tribunal did not give serious consideration to his claims.  As indicated, the Tribunal gave consideration to his claims. 

1. There is nothing in what the Applicant said to indicate that the Tribunal failed to consider any aspect of his claims, including (notwithstanding that he did not raise it expressly) any claims based on the general violence and security situation in Pakistan on the information before the Tribunal at the time of its decision.  Insofar as the Applicant wished to rely on current information, in that respect he agreed that such information was not before the Tribunal. 

2. The fact the Tribunal rejected the Applicant’s claims and made an unfavourable decision is not, in the circumstances of this case, indicative of jurisdictional error.  As indicated, the Tribunal’s findings were open to it on the material before it for the reasons it gave. 

3. Ground one in the application for review is that “the Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances”.  The particulars refer to the fact that the Tribunal did not accept that the Applicant was a convert from Sunni to Shia and actively involved in the Tehrik-e-Jafaria organisation and take issue with the fact that evidence said to support these claims and claims about incidents occurring thereafter was “rejected” by the Tribunal.  Reference was made to the First Information Report said to have been produced as evidence of violence levelled against the Applicant due to his conversion and the letter issued by the Tehrik-e-Jafaria organisation to show he was an active member of the Shia sect.

4. Contrary to the claims that the Tribunal failed to take into account information relevant to the Applicant’s circumstances, the Tribunal’s reasons disclosed that it considered not only all of the Applicant’s claims, but also the evidence, including documentary evidence and his agent’s and his own submissions.  After giving a number of reasons for comprehensively rejecting the credibility of the Applicant’s claims, in the course of which it addressed the untranslated newspaper article and the issue of whether the Applicant was present at the time of the alleged attack on his office, the Tribunal made detailed findings about the vagueness and lack of persuasiveness in aspects of the Applicant’s claims.  The Tribunal then drew a general conclusion that the Applicant had manufactured the claims of conversion and involvement in the Tehrik-e-Jafaria organisation and subsequent events.  It was in those circumstances that the Tribunal found that it followed that it did not accept that the documents purportedly supporting the claims were genuine and/or that they contained truthful information.  Having comprehensively rejected the credibility of the Applicant’s central claims and of events that he claimed had occurred in Pakistan, the Tribunal’s findings in relation to the purportedly corroborative evidence were open to it.  The Tribunal considered the corroborative evidence, but made a broad adverse finding in relation to the Applicant’s credibility.  It cannot be said that it failed to have regard to this material, let alone that it did so in a manner constituting jurisdictional error.  In that respect, it also had regard to the ease of obtaining fraudulent documentation in Pakistan, a matter which it said it had specifically discussed with the Applicant at the hearing. 

5. The Applicant did not take express issue with the fact that the Tribunal did not take up his representative’s offer to obtain further information in relation to the untranslated newspaper report.  Nonetheless I gave the parties the opportunity to make submissions in that respect and considered whether it raised any issues of concern. 

6. It is relevant in that respect to have regard to the Tribunal’s discussion of the Applicant’s initial claim that the newspaper article referred to an attack on an office and mentioned his name as being attacked in his office.  However the Tribunal recorded that the Applicant’s representative said that the Applicant was not present.  Further, as well as stating that he could not remember the date of this incident, the Applicant conceded to the Tribunal that he was not present when the incident occurred.  It was in those circumstances that the Tribunal was of the view that further information would not assist it, given the availability of fraudulent documentation and the fact that it had considered, and had not accepted, the Applicant’s claims.  There is nothing in the material before the Court to suggest any lack of reasonableness in the Tribunal’s exercise of its discretion in this respect.  Ground one and the issues raised in relation to ground one do not establish jurisdictional error.

7. The second ground in the application is that the failure by the Tribunal “to understand or take into account the applicant’s claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities of life in Pakistan”.  The particulars are that:

   The Tribunal failed to understand and put the applicant in the context that existed in his home country of Pakistan.  For example, the Tribunal insisted that the applicant explain the significance of 22 January 2009.  When the applicant explained it was significant in his conversion, because it was the day he openly became a Shia Muslim and was accepted by the Shia community as such, the Tribunal could not accept it as of any significant evidentiary value; nor was the applicant’s membership of Tehrik-e-Jafaria, which the Tribunal took the view as a mere social group.  The Tribunal rejected that the applicant faced any fear or that he was subject to any violence/ threats and believed such to be fabrications by the applicant.   

   The applicant states that it is naïve to believe that his life will be at no risk if he returns to Pakistan because the Tribunal assumes that the applicant faces no such threat on the basis that the applicant’s information was baseless and or fabricated or that he was not a credible witness. 

8. As indicated, the Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave.  Insofar as ground two takes issue with that reasoning, it does not establish jurisdictional error.  The Tribunal stated that it gave the Applicant several opportunities to explain the significance of the date he claimed he had converted. The fact that the Tribunal found that he demonstrated some difficulty in elaborating and explaining the significance of that date and that this cast serious doubt on his claims regarding conversion is not indicative of jurisdictional error.

9. The Tribunal also considered the evidence of the Applicant in relation to the objectives, aims or purpose of the Tehrik-e-Jafaria organisation.  It understood and considered that the group may be essentially a social group in the Applicant’s village, but had regard to country information about the objectives and aims of that organisation.  It was open to the Tribunal to find that if the Applicant had been genuinely involved he would have exhibited a greater understanding of these issues at the hearing.  As pleaded, this ground is not made out.

10. Insofar as the Applicant sought in his oral submissions to rely on changes in the situation in Pakistan since the time of the Tribunal decision, such matters are not, of themselves, indicative of jurisdictional error.  If the Applicant says that there has been a change in his circumstances, this may be an issue he may raise with the Minister, but it is not such as to demonstrate jurisdictional error, whether in the manner contended for in the grounds in his application or otherwise.

11. Ground three is that the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in Pakistan was “illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account”.  It recites the Tribunal’s findings that the Applicant’s evidence was fabricated and that fraudulent documentation could be obtained easily in Pakistan. 

12. However the Tribunal did not simply find that there was not a real chance that the Applicant would not suffer serious harm on the basis that his evidence was fabricated and/or that fraudulent documentation could easily be obtained.  Rather, it made adverse credibility findings for several reasons (as set out above) which led it to the conclusion that his evidence had been fabricated.  It was in those circumstances that it did not accept that the documents were genuine and/or that they contained truthful information.  In that context the Tribunal also had regard to the existence of fraudulent documentation from Pakistan.

13. The Tribunal’s decision was not one that no rational or logical decision – maker could have made on the same evidence in the sense considered in the Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16. Its findings rejecting the claims of conversion or involvement with the Tehrik-e-Jafaria group and the claimed attacks were open to it for the reasons which it gave.

14. There is nothing in the material before the Court to support any claim that the Tribunal misunderstood or misconstrued the Refugee Convention test.  The Applicant’s unparticularised complaint that the Tribunal failed to take into account relevant information is not supported by the Tribunal’s reasons.  On the contrary.  Insofar as his complaint is that he provided documents which were not regarded as sufficient to support or establish his claims, the weight to be given to items of evidence is a matter for the Tribunal.  As indicated, the Tribunal’s findings in that respect were open to it on the material before it for the reasons which it gave.  

15. In oral submissions the Applicant submitted that the Tribunal had not proved his story was not genuine.  That is not indicative of jurisdictional error.  He also appeared to complain that he did not have a “complete opportunity” to make submissions or put evidence before the Tribunal.  However the Applicant had the opportunity to put evidence before the Tribunal.  He gave evidence at the Tribunal hearing.  His advisor made pre-hearing and oral submissions to the Tribunal.  Those matters were considered by the Tribunal in its reasons for decision, as were the documents (including the first information reports, the Tehrik-e-Jafari letter and the untranslated newspaper article).  No jurisdictional error is established on the basis contended for in ground three.

16. Ground four is that the Applicant was not afforded natural justice.  The Applicant claimed that he was not afforded a fair hearing, that the Tribunal’s judgement was clouded by preconceived beliefs about whether the Applicant was credible or whether his evidence was genuine or mere fabrication and by notions as to what constituted fear.  It was submitted that the Tribunal member allowed her views “to prevail over” the Applicant.  The Applicant claimed he felt “unheard” and that justice was “unavailable”.

17. Insofar as ground four may be seen as an allegation of either actual or apprehended bias, neither is made out on the material before the Court.  There is no transcript of the Tribunal hearing in evidence.  It is a rare and exceptional case where actual bias can be demonstrated solely from published reasons for decision.  There is nothing in the Tribunal reasons to support such an allegation.  On the contrary, the Tribunal accepted the Applicant’s claims in relation to difficulties at the departmental interview and did not have regard to issues arising therefrom.  It gave detailed reasons for why it did not accept and did not find the Applicant’s evidence at the Tribunal hearing to have been persuasive.  There is nothing in its reasons to support any assertion that the Tribunal’s mind was so made up as to be incapable of alteration whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17) or such as to support an allegation of apprehended bias from the perspective of the hypothetical fair-minded lay person properly informed of the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28).

18. The Applicant stated that he did not have a fair opportunity at the hearing because he had not prepared anything.  That is his responsibility.  Insofar as he took issue with the fact that he was asked questions by the Tribunal and answered them, that is not indicative of actual or apprehended bias, but is consistent with the Tribunal’s obligations under the Migration Act 1958 (Cth) (the Act) to conduct a hearing to enable the Applicant to give evidence and address issues arising in relation to the decision under review. On the Tribunal’s own account, the Applicant had that opportunity and the Tribunal raised dispositive issues with him.

19. In oral submissions the Applicant took issue with the extent of the opportunity afforded to his agent to make submissions at the Tribunal hearing.  The agent made pre-hearing submissions.  I have addressed the issue of the agent’s offer to provide further submissions or material in relation to the untranslated newspaper article.  Insofar as the Applicant was concerned that his agent was not given an opportunity early in the Tribunal hearing to elaborate on the Applicant’s claims and differences between the Shia and Sunni branches of the Islamic faith, he conceded that his agent was given an opportunity to address the Tribunal at the end of the hearing. 

20. There is no transcript of the Tribunal hearing in evidence. In any event, the concerns raised by the Applicant in this respect are not such as to indicate even an arguable claim of denial of procedural fairness in the manner in which the Tribunal conducted the hearing or the extent to which it gave the agent an opportunity to address it or to make submissions. There is nothing in the material before the Court to support any contention that the Tribunal failed to comply with s.425 of the Act or otherwise failed to accord the Applicant procedural fairness or fell into jurisdictional error. This ground is not made out.

21. As none of the grounds or the issues raised by the Applicant establish jurisdictional error, the application must be dismissed. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 20 November 2015