SZVID v Minister for Immigration
[2016] FCCA 1563
•27 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVID v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1563 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – allegation of bias – whether Tribunal failed to consider documents – whether Tribunal afforded procedural fairness – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 423A, 424A, 425, 476 Migration Amendment (Protection and Other Measures) Act 2015 (Cth) |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744; (2005) 87 ALD 357 Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) (2007) 235 ALR 609 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 |
| Applicant: | SZVID |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2925 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 April and 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2016 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 22 October 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.
.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2925 of 2014
| SZVID |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on 22 October 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 30 September 2014 which affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.
Background
Before the Court in evidence is:
1)The bundle of relevant documents filed, and tendered, by the Minister (“the Court Book” – “CB”).
2)The applicant’s affidavit of 28 March 2016.
3)The applicant’s affidavit of 16 May 2016.
The Tribunal
The applicant is a citizen of Bangladesh who arrived in Australia on 14 October 2012 on a Short Stay Business (Subclass 456) visa, granted on 22 July 2012. The applicant applied for a protection visa on 12 November 2012 (CB 1 to CB 27). He provided a number of documents to the department (CB 40 to CB 53).
The applicant claimed to have been an active member of the Bangladesh Nationalist Party (“BNP”) and to have been attacked and threatened for his involvement with the BNP by the Awami League (CB 21 to CB 22). In his written submissions to the Court, the Minister has summarised some of the particulars to the applicant’s claims to protection. These submissions, in my view, are a fair and adequate summary, and for convenience I adopt them for the purposes of this judgment ([2] of the Minister’s written submissions):
“The applicant applied for a protection (class XA) visa on 12 November 2012 (CB 1). The applicant claimed to fear harm in Bangladesh from the Awami League (‘AL’) because of his active role in the Bangladesh Nationalist Party (‘BNP’). In particular, the applicant claimed that (CB 20-22; CB 178 at [11]-[16]):
a. he was an executive member of the Senbagh Thana executive committee of the BNP, and was involved in the party in Lalbag;
b. he was threatened by the AL and physically attacked on 31 May 2012 and 6 September 2012; he required treatment after the second attack;
c. he had been in hiding since the second attack to save his life;
d. the AL ruined his business in the daytime and, after the second attack, occupied his business in the night time;
e. he was threatened by the AL that if he tried to get his business back he would be killed;
f. he went to the police to recover his business, but they did not help him because of his BNP leadership;
g. the AL would kill him if he returned to Bangladesh because of his involvement in BNP politics and if he tried to get back his business; the AL might influence police and the RAB to arrest him and put him in detention; the applicant might be killed in crossfire;
h. the police and RAB would afford the applicant no protection.”
The delegate refused the application for the protection visa on 31 July 2013 (CB 58 to CB 69). Based on the applicant’s written and oral claims and country information that was available to the delegate, the delegate did not accept that the applicant was a member, or a supporter, of the BNP as the applicant had claimed (CB 66.6). The delegate rejected the applicant’s claims of past harm. Further, the delegate found that the applicant’s delay in leaving Bangladesh, after being granted a visa for Australia, indicated that he did not fear for his safety.
The applicant applied to the Tribunal for review on 4 September 2013 (CB 73 to CB 78). On 4 April 2014, a firm of solicitors and migration agents notified the Tribunal of their appointment to represent the applicant (CB 84). The applicant’s representative provided written submissions to the Tribunal and supporting documents on 18 June 2014 (CB 90 to CB 159). The applicant and his representative attended a hearing before the Tribunal on 24 June 2014 (CB 162 to CB 164). The applicant’s representative provided further written submissions after the hearing on 7 July 2014, including various references to country information about conditions in Bangladesh (CB 165 to CB 172).
The Tribunal affirmed the delegate’s decision on 30 September 2014 (CB 176 to CB 203). The Minister’s written submissions also provide a fair summary of the Tribunal’s findings, and on this basis, and for the sake of convenience today, I adopt the Minister’s summary for the purposes of this judgment ([7] – [10] of the Minister’s written submissions):
“[7] The Tribunal found that:
a. The applicant’s willingness (in relation to his asylum claim the UK) to lie under oath and present a false case impeached his credibility (CB 199 at [72]);
b. The applicant’s actions in voluntarily re-availing himself of the protection of Bangladesh when the AL came to power were ‘wholly inconsistent with a subjective fear of persecution’ (CB 199 at [73]);
c. The applicant is not of adverse interest to the authorities in Bangladesh, evidenced by him entering and exiting Bangladesh many times since he became affiliated with the BNP (CB 199 at [74], [90]-[91]);
d. The applicant’s delay in lodging his protection visa application was not consistent with a subjective fear of persecution (CB 199 at [75]);
e. The applicant’s evidence in relation to the objectives of the BNP lacked detail in support and did not accord with an individual claiming to have a longstanding affiliation with the BNP (CB 200 at [77]);
f. The applicant’s inability to accurately recall the number of elections in the period he claimed to be a Union Council officer holder undermined his credibility (CB 200 at [79]);
g. The applicant’s description of his claimed activities in the campaigns he claimed to be involved in were ‘vague, and lacking in detail’ (CB 200-201 at [80]);
h. The applicant’s claims regarding BNP activities either in the UK or Australia were not credible and the Tribunal gave them no weight (CB 201 at [81]);
i. The applicant’s credibility was ‘further undermined by his incremental additions to his claims in this asylum application’ (CB 201 at [84]); and
j. The applicant’s lack of knowledge in relation to BNP policies and principles, and parliamentary elections and campaigns supported the Tribunal’s finding that the applicant was not a BNP member, supporter or officer holder (CB 201 at [85]);
k. The applicant’s credibility had been impeached to such an extent that it could not accept any of his claims as ‘genuine, credible or reliable.’ Nor did the Tribunal accept as ‘credible, reliable or trustworthy’ the documents presented by the applicant in support of his claim. The Tribunal did not accept that the applicant was affiliated with the BNP (CB 201-202 at [86], [90]).
[8] The Tribunal considered the applicant’s explanation and related evidence that his memory was affected by an assault, but found that his credibility had been so completely impeached that there was ‘no credible or trustworthy evidence before it’ (CB 202 at [87]).
[9] The Tribunal did not accept that:
a. the applicant faced a real chance of persecution in Bangladesh for reasons of political opinion (CB 202 at [87]-[88]);
b. the applicant was of adverse interest to the AL (CB 202 at [89]);
c. the applicant suffered harm at the hands of the AL (CB 202 at [90]);
d. there was a real chance the applicant would face serious harm from any government authority for reasons of political opinion or any other reason (CB 202 at [91];
e. the applicant was of adverse interest to the police, security or other officials (CB 202 at [91]);
f. the applicant had suffered serious harm in Bangladesh (CB 202 at [92]);
g. the applicant had a political profile (CB 202 at [94]);
h. there was a real chance the applicant would face harassment and or serious harm at the hands of the AL or the authorities, or that he would be of adverse interest to any potential agents of harm for a Convention reason (CB 202 at [94]-[95]);
i. the applicant would face persecution for a Convention reason for reasons of the general security situation (CB 202-203 at [94]-[95]).
[10] Based on its anterior findings, the Tribunal did not accept that there was a real risk the applicant would face significant harm in Bangladesh, including for reasons of the general security situation in Bangladesh or being killed in crossfire (CB 203 at [96]).”
Application before the Court
The grounds of the application to the Court are in the following terms:
“1. The Tribunal did not give any weight to the supporting documents which I lodged before the Tribunal in support of my claims.
2. The Tribunal failed to uphold my natural justice.
3. The Tribunal failed to exercise its jurisdiction under the Migration Act.”
The applicant’s written submissions appear to assert a further seven “grounds” of the application. Plainly, none of these purported grounds have been properly pleaded. Nonetheless, given that the applicant appears legally unrepresented before the Court, I have had regard to what the applicant’s submissions have attempted to put before the Court as further grounds of the application.
These “grounds” and the various narratives in the applicant’s written submissions seek to rely on a large number of complaints which may be understood as attempts to assert jurisdictional error on the part of the Tribunal. However, to a significant degree, the applicant’s submissions make various assertions that are not reasonably available on the material before the Court. Further, the submissions rely on misconceptions or misrepresentations of the Tribunal’s analysis, and in some instances misunderstandings of various sections of the Act, and refer to authorities that are not relevant to the circumstances presented in the material before this Court.
At page 1 of his written submissions, the applicant has set out “Ground of Application”, as follows (“the first additional grounds”):
“1. The Tribunal made error of law and failed to exercise the proper procedure in relation to make its decision. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
2. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3. The second respondent has denied the applicant's natural justice and procedural fairness pursuant to s423A and 424A(1)(a) and 424B(1)(a) and (b) of the Migration Act 1958.
4. The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing.”
At page 3, he submits that he seeks relief on the basis (“the second additional grounds”):
“The Tribunal erred in holding that the applicant's claim is 'highly inconsistent' and it has remarked that only high profile BNP activists would have been attacked by the AL-supporter by reason that:
Particulars:
(a) there was no evidence to support the finding
(b) the tribunal failed to have regard to the applicant's evidence that he moved from place to place to avoid detection until he left Bangladesh
(c) the tribunal failed to have regard to the relevant question of the primary application where it has asked, 'address where you lived more than 12 months in the last 10 years'.
(d) the finding was unreasonable in the Wednesbury sense.
2. The Tribunal erred in holding that the applicant was not pursued and threatened by the then Awami League administration.
Particulars:
(a) the finding was unreasonable in the Wednesbury sense.
3. The Tribunal erred in holding that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention and therefore does not satisfy the criteria in s.36(2) of the Migration Act for the grant of a protection visa.”
What is immediately apparent is that these “grounds” go far beyond what is set out in his application. In his written submissions, the Minister has sought to give some meaningful order by grouping the grounds of the application and what are said to be additional grounds in the applicant’s written submissions. The Minister has done this under five headings, which present as a convenient way of seeking to understand the confused omnibus suite of the applicant’s complaints. These can be, therefore, identified as follows:
(1)the Tribunal’s consideration of claims and evidence;
(2)procedural fairness;
(3)bias;
(4)unreasonableness;
(5)merits review.
Before the Court
The hearing of this matter was originally scheduled for 15 April 2016. On that day, the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Soon after the commencement of the hearing, the applicant appeared to be in some distress. It appeared he was complaining of chest pains. Paramedics attended and, as subsequently has become clear, given the applicant’s evidence, he was taken to hospital. At that time, the matter was adjourned until today, pending the medical assessment of the applicant.
Attached to the applicant’s affidavit of 16 May 2016 were two medical reports. The first is a report by a Registrar in emergency medicine at St Vincent’s Hospital. It says nothing about the applicant’s capacity to participate in the hearing today. However, a second certificate, dated 16 May 2016, signed by a registered medical practitioner, relevantly certifies that the applicant is medically fit to participate in the Court hearing.
The applicant again appeared in person in Court today. He was again assisted by an interpreter in the Bengali language. The applicant confirmed that he was ready to proceed with the hearing.
When given the opportunity to address the Court, the applicant stated that he had nothing to add to the written material that he had already provided to the Court. I gave the applicant the opportunity to consider, and to explain to the Court, what he had hoped to achieve by bringing his matter to the Court. It was clear from what the applicant said, that he had misunderstood, or did not know of the legal system that applied in this country, involving judicial review of decisions on claims for protection.
It was necessary to explain to the applicant that even if the Court believed his claims to protection, that the Court could not intervene simply on that basis to assist him. I explained to the applicant that the only way that the Court could intervene to assist him, was that if a jurisdictional error (“a legal mistake”) were to be revealed in the material that is before the Court. In those circumstances the Court could send the matter back for reconsideration by the Tribunal. However, absent such error, the application must be dismissed.
Consideration
Ground one of the application to the Court asserts that the Tribunal did not give any weight to the supporting documents which the applicant lodged in support of his claims. This was, as with the other grounds in the application, not particularised. Nor did the applicant’s other grounds asserted in his submissions, appear to directly relate to that matter. In his written submissions however, the applicant appears to assert that the Tribunal should have given more weight to his documents than to country information about the prevalence of document fraud in Bangladesh
In relation to the assertion that the Tribunal did not consider his documents, it is clear from [86] (at CB 201 to CB 202) of the Tribunal’s decision record, that it did consider the documents that had been submitted in purported corroboration of the applicant’s claims. The Tribunal found that the documents he presented were not “credible, reliable or trustworthy”.
It is trite to say that the law requires that the Tribunal’s decision record is to be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The Tribunal’s relevant analysis was that it found, arising from its consideration of a number of factors “in their totality”, the applicant’s credibility had “been impeached to such an extent that the Tribunal cannot accept any of his claims as genuine, credible or reliable” ([86] at CB 202).
These factors were:
1)The applicant had previously sought protection in the United Kingdom (“UK”) under a false identity and a fabricated claim ([71] at CB 199).
2)The applicant conceded that he had lodged a false asylum claim in the UK, appeared before an immigration judge in the UK, and under oath had presented a false claim in order to achieve a migration outcome by fraudulent means. The Tribunal found ([72] at CB 199):
“[T]he applicants willingness to lie under oath and present a false case containing fraudulent documents and a false identity impeaches his credibility entirely”
3)The Tribunal noted that the applicant had voluntarily re-availed himself of the protection of Bangladesh when the Awami League came to power, the “agents of harm whom he claims to fear”. The Tribunal found his actions in this regard to be “wholly inconsistent with a subjective fear of persecution and that his actions further impeach[ed] his credibility” ([73] at CB 199).
4)The Tribunal found the applicant was not of adverse interest to the Bangladeshi authorities, given that since 2009 he had entered and exited that country on a number of occasions ([74] at CB 199).
5)The Tribunal found that the delay in lodging his application for protection in Australia, given his previous experience in the United Kingdom, was not consistent with a subjective fear of persecution, and further seriously undermined his credibility ([75] at CB 199).
6)The Tribunal also considered the applicant’s claims in relation to his membership of the BNP and related matters. The Tribunal found, variously, that the applicant’s credibility was further undermined by the nature and character of his evidence ([76] at CB 200 to [85] at CB 201).
In relation to the documents, the Tribunal found at [86] (at CB 201 to CB 202), based on the above, that the applicant’s credibility was so impeached that he could not be believed in any of his claims. This informed its finding as to his corroborative documents. That is, on a fair reading, the Tribunal found that the applicant’s credibility was so discredited by his own evidence and the circumstances presented, that the documents he provided could not be accepted as credible, reliable or trustworthy. This finding, and the findings that informed it, were reasonably open to the Tribunal on what was before it. In these circumstances no legal error is revealed.
I should note, for the applicant’s understanding, in relation to the events in the United Kingdom to which the Tribunal had some regard, that in this country lying to a judge in circumstances where a person has given an oath to tell the truth, is considered an extremely serious matter. In my view, the Tribunal was entitled to have regard to what had occurred in the United Kingdom in this light.
In his written submissions, the applicant also appears to assert that the Tribunal should have given greater weight to his documents, and less weight to country information. At page 2 of his written submissions, the applicant says the Tribunal was heavily dependent on “generalised” Department of Foreign Affairs and Trade (“DFAT”) reports.
The Tribunal did have regard to country information, for example, concerning the BNP and the Awami League and their history with each other (at CB 185), the “[t]reatment of BNP supporters by Awami League supporters” (at CB 191), the “[t]reatment of BNP supporters by security forces” (at CB 194), the “[t]reatment of BNP supporters by the present government” (at CB 197) and, what the Tribunal said was “[o]ther relevant information on the treatment of BNP supporters” (at CB 198).
It is clear that the Tribunal’s references to this material were relevant to the claims made by the applicant. As the Minister, in my view, correctly submits, the selection of and the weight to be accorded to country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ). No legal error is revealed in this regard. Ground one of the application is not made out.
Grounds two and three of the application can only be described as mere assertions, again, lacking any particularity. There is no indication in the application as to the exact claimed failure by the Tribunal. Nevertheless, given that the applicant is legally unrepresented, I have sought to discern some particularity from his written submissions.
Ground two asserts a failure by the Tribunal to afford him natural justice. Ground one of the first additional grounds in the written submissions, asserts a denial of procedural fairness in relation to the Tribunal hearing. Given references to specific sections of the Act in other parts of both sets of the additional grounds, it would appear that the applicant’s complaint in his additional grounds, and to the extent that ground two of the application relates to it, is focused on the hearing conducted by the Tribunal.
Section 425 of the Act obliges the Tribunal, in certain circumstances, to invite an applicant to a hearing. The Tribunal is obliged to provide an applicant with a meaningful opportunity to be heard. This is a matter to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters that are dealt with in that division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 and Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214).
There is no dispute that the applicant was invited to a hearing pursuant to s.425 of the Act. On the evidence before the Court, including the transcript of the hearing that the applicant himself has put before the Court, the applicant was provided with a meaningful opportunity to explain his claims, give his evidence and present his arguments, and to address the concerns raised by the Tribunal.
In his written submissions, the applicant states that he relies on the transcript of the Tribunal hearing to argue that the Tribunal did not properly follow “the procedure”. It is not clear from the applicant’s submissions in what way the Tribunal is said to have failed to follow the procedure. However, given some of the references in the written submissions, it may be that the applicant is raising a complaint that the Tribunal did not ask questions directly relevant to his “UN Convention claim”.
On the evidence of his application for the visa, and what appears in the delegate’s decision record, it is clear that the applicant’s UN Refugees Convention-based claim was that he was an active member and leader of the BNP who feared serious harm from political rivals, the Awami League. The applicant claimed to have suffered harm at the hands of Awami League members in the past.
The transcript of the Tribunal hearing does not support the assertions made in his written submissions. As can be seen in the transcript of the hearing, the Tribunal gave the applicant the opportunity to give evidence about his fears in Bangladesh, his circumstances in that country, and the claimed incidents of past harm (see page 20 to page 31 of the transcript attached to the affidavit of the applicant of 28 March 2016).
In his written submissions, the applicant also complains that the Tribunal did not give him an opportunity to respond to adverse information. In relation to the Tribunal’s procedural fairness obligations, as these arise from s.425 of the Act, the transcript also does not support the applicant’s claims in this regard. What is revealed (from page 32 to about page 34 of the transcript), is that the Tribunal did put its concerns about his evidence to him, and gave him the opportunity to comment.
Following his representative’s request, the Tribunal gave the applicant a further 14 days to respond. Bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592, the issues in the review were discussed at the hearing and the applicant was given the opportunity to make further comments. In any event it is clear that, given the delegate’s decision, the applicant could have been in no doubt that the live issue in the review was the credibility of his entire factual account. This was also made clear at the Tribunal hearing. He knew the case against him and was given a fair opportunity to address the concerns.
Ground three of the first additional grounds, as set out in the written submissions, asserts that the applicant was denied natural justice and procedural fairness in a statutory context. The applicant makes reference to three sections of the Act.
First, s.423A of the Act, which was first inserted into the Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (Act No. 35 of 2015). It took effect from 18 April 2015 and applies to applications for protection visas made on or after that date. The applicant applied for the protection visa on 12 November 2012. As such it does not apply to the applicant’s case.
Second, the applicant refers to s.424A(1)(a) of the Act (page 2 of the written submissions). That section compels the Tribunal to give to an applicant for comment, or response, information which it considers would be the reason, or part of the reason, for affirming the delegate’s decision.
It is clear, given what the applicant has emphasised at the bottom of page 2 of his written submissions, and what subsequently follows in the submissions, that the applicant’s complaint is that the Tribunal should have put to him in writing inconsistencies in his evidence and country information on which it relied. In his written submissions, the applicant specifically states that the Tribunal ignored the “undertaking” said to have been given by it to give him an opportunity to make further written submissions about the inconsistencies in his evidence (at page 3 of his written submissions).
However, this assertion is contrary to the evidence before the Court, which reveals that in fact the applicant provided a Statutory Declaration to the Tribunal following the hearing (at CB 166 to CB 172). The applicant’s Statutory Declaration purportedly sought to address the inconsistencies in his evidence. That the Statutory Declaration attempts to do that is also made clear in the representative’s covering letter (at CB 165). On what is before the Court, the Tribunal did consider the applicant’s subsequent explanations. There is no denial of procedural fairness simply because the Tribunal was not persuaded by these explanations and in circumstances where the Tribunal gave reasons for its lack of satisfaction.
The applicant relies on a number of authorities in his written submissions to support his assertion that he was denied procedural fairness in relation to certain information (Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744; (2005) 87 ALD 357 and Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27). However, when regard is had to more recent and relevant authorities the lack of merit in his submissions and the assertions in his submissions is revealed.
As was made clear by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18], information for the purposes of s.424A of the Act does not include inconsistencies in an applicant’s evidence. The Tribunal’s subjective view, that is, its understanding of an applicant’s evidence is not information for the purposes of s.424A of the Act. Further, in relation to country information to which the applicant refers, and the information that underlies some of the findings of inconsistency found by the Tribunal, such information falls into one of the exceptions in s.424A(3) from the obligation in s.424A(1) of the Act.
The third statutory reference in the third ground of the first additional grounds in the submissions refers to ss.424B and 424B(1)(a) and (b) of the Act. Apart from simply stating that section, the relevance to the applicant’s case remains unexplained by the applicant’s submissions. That section deals with the obligations of the Tribunal for the giving of written information. It does not apply to the circumstances of the current case. In all, ground three of the first additional grounds has no merit.
Grounds two and four of the first additional grounds in the written submissions, when read with the written submissions, can be understood as an attempt to assert that the Tribunal member was actually biased, or that an apprehension of bias might arise. The tests for both bias and the apprehension of bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 and in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). Bearing in mind the relevant tests as explained in the authorities, the evidence before the Court does not support the proposition that the Tribunal member did not bring an open mind to the review, or that the Tribunal member was not open to persuasion. The Tribunal having put its concerns to the applicant at the hearing about his evidence is not indicative of any such state of mind.
Similarly, the evidence does not support the proposition that a
well-informed lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to bear on the decision.
Though it is not entirely clear from his written submissions, the applicant appears to argue that the Tribunal was biased because despite the Tribunal decision being “influenced by sufficient doubts”, the Tribunal was “heavily depended” on the findings of the delegate and the DFAT country information. It must be said again, I cannot see any rational basis for that assertion in the applicant’s submissions.
First, on any plain, let alone a fair, reading, it cannot be said that the Tribunal’s decision arose from findings expressing any doubt. This is not a case where what has been described as the “what if I am wrong” test applies in any way (Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220). The Tribunal evaluated the evidence before it, and was emphatic in its findings, which were probative of the evidence and were reasonably open to it, such that the applicant was not to be believed.
Second, while the Tribunal evidently made reference, at the hearing with the applicant and in its decision record, to the delegate’s decision and material that was before the Minister’s department, there is nothing to say that the Tribunal was “influenced” by this in making its decision as the applicant appears to allege.
This appears to be some attempt by the applicant now, to argue that the Tribunal should not have relied on inconsistencies between what he put to the Minister’s department and what he told the Tribunal. While the Tribunal is required to bring a fresh mind to the review, this does not mean that it should ignore what the applicant put before the Minister’s department. After all, the Tribunal’s statutory obligation is to review the delegate’s decision. On the evidence before the Court, the Tribunal did ask the applicant to comment on certain findings made by the delegate. This was the provision by the Tribunal of a fair opportunity for the applicant to explain what he had not been successful in explaining to the delegate. That is, the applicant was given a second opportunity to explain his case.
Third, the applicant’s complaints about the DFAT reports, and the Tribunal’s references to them, are again no more than disagreements with the Tribunal’s choice of country information and the weight that the Tribunal assigned to that information. In all, therefore, these grounds as set out in the first additional grounds in the applicant’s written submissions, are not made out.
Turning to the second additional grounds in the written submissions, ground one asserts that the Tribunal erred when it found the applicant’s claim, which is not immediately identified, to be highly inconsistent. The ground makes reference to what is said to be the Tribunal’s remark that only high profile BNP activists would have been attacked by the Awami League supporters.
First, this latter reference to what is said to be the Tribunal’s “remark” remained unexplained before the Court. In any event, the Tribunal found as fact that the applicant was not a member of the BNP at all. The matter of high profile members was, therefore, not relevant to the applicant’s circumstances.
Second, it would appear that the complaint, as expressed at particular (a) to this “ground one”, is that the Tribunal had no evidence on which to base its findings of inconsistency in the applicant’s claims. This complaint ignores one very important and central feature of the Tribunal’s analysis and findings. That is, overwhelmingly, on the question of his claim to BNP membership and activities, it was the applicant’s own evidence, and the Tribunal’s understanding of inconsistency in that evidence, that formed the basis of its ultimate adverse conclusion.
To succeed in his claim of “no evidence”, the applicant would have to show that there was, in fact, no evidence on which the Tribunal’s findings could have been based. In the current case there was such evidence. That is, the applicant’s own evidence. The Tribunal’s findings as to credibility were all reasonably open to it on what was before it. The Tribunal’s conclusion that the applicant was not credible, was a finding of fact within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J ‑ a finding of fact “par excellence”).
Particulars (b) and (c) to this “ground” assert that the Tribunal failed to have regard to the applicant’s evidence that he moved “from place to place” in Bangladesh to avoid detection by his claimed opponents. The applicant did not explain this complaint before the Court. Particular (c) to the ground refers to a part of the application form lodged by the applicant for the protection visa, where the applicant was asked to provide details of where he had lived in the last ten years (CB 16). The applicant provided one address in the UK for over 6 years and two addresses in Bangladesh. It appears, at best for the applicant that in his submissions he seeks to say that the implication from his answers in the application form is that he “moved about.” Even if that implication is meant, there is nothing there to say he had moved “from place to place” to avoid detection.
In any event, the applicant was questioned by the Tribunal as to why he delayed his departure from Bangladesh after he had been attacked and had obtained an Australian visa. The Tribunal did consider the applicant’s claim that he had been in hiding since being attacked. However, it did not accept that he had suffered harm in the past. This was because his credibility had been impeached to such an extent that none of his claims were credible (see above). Further, while the delegate made findings relating to that delay, the Tribunal’s findings of delay focused on the delay in applying for a protection visa after arrival in Australia. That particular finding was not dependent on whether he had moved from “place to place” to avoid harm in Bangladesh.
Particular (d) to “ground” one of the second additional grounds and the particular to ground two of those grounds, assert that the Tribunal’s findings that the applicant’s claims were “highly inconsistent”, and it’s finding that the applicant was not pursued or threatened by the Awami League administration, were unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (“Wednesbury”)). The applicant gave no satisfactory explanation of these complaints before the Court. In any event, the Tribunal’s decision, and the impugned findings that informed that decision, was not, on what is before the Court, unreasonable in the Wednesbury sense, that is, so unreasonable that no reasonable decision maker could have come to it.
Nor can I see that more recent Australian authorities can assist the applicant’s assertion of unreasonableness in the circumstances presented. I agree with the Minister’s submissions that the applicant’s complaint here, does not rise above registering his disagreement with the outcome of the Tribunal’s decision (Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164 at [34]). Plainly, the determination as to whether a Tribunal decision is legally reasonable does not involve any review of the merits of the Tribunal’s decision (Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]). Grounds one and two of the second additional grounds in the written submissions are not made out.
Ground three of the application and ground three of the second additional grounds, can only be understood as seeking impermissible merits review. They, therefore, cannot assist in revealing jurisdictional error in the Tribunal’s decision record.
Conclusion
In all, therefore, the grounds of the application and the two subsequent sets of grounds contained in the written submissions, as purportedly explained, do not reveal jurisdictional error in the Tribunal’s decision. The application to the Court should be dismissed. I will make that order accordingly.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 24 June 2016
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