WZATB v Minister For Immigration and Anor (No.2)
[2014] FCCA 2978
•22 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATB v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2014] FCCA 2978 |
| Catchwords: MIGRATION – Judicial review – Sri Lankan Tamil applicant – protection visa application – whether jurisdictional error – whether procedural fairness afforded – whether bias demonstrated. |
| Legislation: Migration Act 1958 (Cth), Part 7, Division 4, ss.36(2) and (2A), 65(1), 422B, 425, 474, 476 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | WZATB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 193 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 August 2014 |
| Date of Last Submission: | 12 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 22 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 193 of 2013
| WZATB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Refugee Review Tribunal.[2] The Tribunal affirmed a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] to refuse to grant a Protection (Class XA) visa[5] to the applicant.
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 166-181.
[3] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 77-89.
[4] “Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship.
[5] “Protection Visa”.
Factual and procedural background
The background to the application is as follows:
a)the applicant is a citizen of Sri Lanka who arrived on Christmas Island on 11 May 2012[6] as an offshore entry person and lodged an application for a Protection Visa on 8 August 2012;[7]
b)on 3 October 2012 the Delegate refused the Protection Visa Application;[8]
c)the applicant lodged an application with the Tribunal for review of the Delegate’s Decision on 8 November 2012;[9]
d)a Tribunal hearing was held on 7 May 2013; and
e)on 26 June 2013 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[10]
[6] CB 116.
[7] “Protection Visa Application”; CB 4-69.
[8] CB 72-89.
[9] CB 98-103.
[10] CB 166-181.
Applicant’s claims before the Tribunal
Before the Tribunal the applicant claimed that:
a)at the end of 2006 one of the applicant’s brothers was kidnapped, assaulted and accused of association with the Liberation Tigers of Tamil Eelam.[11] This brother was released following intervention by the United National High Commissioner for Refugees, and left Sri Lanka in 2007. This brother is currently in Australia seeking a Protection Visa having arrived in 2012;[12]
b)in March 2012 the army came to the applicant’s home looking for his brother. One of the army pointed a gun at the applicant, and threatened that if his brother did not return the army would kill the applicant. Following this incident the applicant hid with relatives of his brother’s wife and his mother made arrangements for him to leave Sri Lanka. He obtained a passport and left Sri Lanka legally for India before coming to Australia by boat;[13]
c)the CID have since been to his mother’s house on three occasions asking after the applicant and his brother;[14]
d)he will be harmed by the CID, the army and the paramilitary because of his imputed political opinion as an LTTE supporter;[15]
e)he cannot relocate to another part of Sri Lanka because the Sri Lankan government treats Tamils badly all over Sri Lanka and because he is a young male from the north of Sri Lanka;[16] and
f)his situation is worsened by having come to Australia to seek protection.[17]
Tribunal Decision
[11] “LTTE”.
[12] CB 170 at para.22.
[13] CB 170 at para.23.
[14] CB 170 at para.23.
[15] CB 170 at para.24.
[16] CB 170 at para.24.
[17] CB 170 at para.24.
Law, claims and evidence
The Tribunal set out:
a)the relevant law by reference to section 65(1) of the Migration Act providing that a Protection Visa may only be granted if the prescribed criteria are met[18]; and
b)dealt with the law with respect to the prescribed criteria under s.36(2) of the Migration Act, being the refugee criterion under s.36(2)(a) of the Migration Act and the complementary protection criteria under s.36(2)(aa) of the Migration Act;[19]
c)the applicant’s claims and evidence, including the documentary evidence provided by the applicant in his Protection Visa Application and accompanying statutory declaration, a birth certificate, a driving licence with photo, an identity card indicating his date of birth in Trincomalee in Sri Lanka, and the submissions made (post-hearing) by the applicant’s migration agent representative.[20]
[18] CB 167 at para.4.
[19] CB 167-169 at paras.4-18.
[20] CB 169 at para.19.
The Tribunal noted that:
a)the applicant was a single young Tamil male from Trincomalee who had lived his whole life in that town;
b)the applicant had left school in 2002, and was unemployed until he worked as a carpenter from 2008 until 2010, and then in the family grocery store from 2010 until he left Sri Lanka in April 2012;
c)the applicant’s parents, two brothers and sister live in Sri Lanka, and one brother lives in India; and
d)two of the applicant’s brothers are in Australia and also seeking asylum as refugees.[21]
[21] CB 170 at para.21.
The Tribunal set out the applicant’s claims, as they are set out above.[22]
[22] See para.3 above; CB 170 at paras.22-24.
Credibility
Having found the applicant’s claim to be a citizen of Sri Lanka to be credible,[23] and the applicant not to be excluded from having a right to Australia’s protection by reason of having a right to enter and reside in another country,[24] the Tribunal went on to consider whether the applicant was credible in relation to his claims. In relation to the credibility of the applicant’s claims, the Tribunal:
a)accepted that the applicant was of Tamil ethnicity;[25]
b)accepted that he had been born in Trincomalee and had lived his entire life there;[26]
c)did not consider that the applicant was a credible witness in relation to his core claims because:
i)there were significant inconsistencies in his evidence surrounding the alleged kidnapping of his brother in 2006, including a failure in a written statement to say that he witnessed the abduction, a claim that he then made orally before the Tribunal. Further, in the written statement he stated that the brother was abducted and taken away for about a month, whereas before the Tribunal he stated that the period of abduction was about a week, and therefore the Tribunal did not accept the applicant’s claim that his brother was abducted as claimed;[27]
ii)it found implausible a claim that the authorities came to the applicant’s house in March 2012, six years after the brother’s arrest, and found that this was a fabrication to bolster his claim for a Protection Visa;[28] and
iii)it did not accept a claim that the Sri Lankan CID had been to his mother’s house on three occasions (twice in 2012 and on 1 January 2013) asking after the applicant and his elder brother, and that when told that they had gone to a foreign country, the CID took away his other brother for questioning, and that after his release the other brother fled to India.[29]
[23] CB 170 at para.26.
[24] CB 170-171 at para.27.
[25] CB 171 at para.28.
[26] CB 171 at para.29.
[27] CB 171 at paras.30-31.
[28] CB 171 at para.32.
[29] CB 171 at para.33.
Country information
The Tribunal, at Appendix A to the Tribunal Decision,[30] set out country information in relation to:
a)the human rights and security situation for Tamils in Sri Lanka since 2009;
b)the treatment of people suspected of being involved or associated with the LTTE; and
c)the treatment of returnees.
[30] CB 176-181.
In relation to the human rights and security situation for Tamils in Sri Lanka since 2009 the Tribunal set out details from the US Department of State report “Country Reports on Human Rights Practices for 2011: Sri Lanka” published in May 2012 which indicated that:
a)the “major human rights problems were unlawful killings by security forces and government-allied paramilitary groups, often in predominantly Tamil areas, which led many to regard them as politically motivated, and attacks on and harassment of civil society activists, persons viewed as … LTTE … sympathizers”;[31]
b)discrimination continued against persons of the ethnic Tamil minority and that a disproportionate number of victims of human rights violations were Tamils;[32] and
c)the operations of previously military-styled groups in Tamil areas had taken on the characteristics of criminal gangs seeking to solidify territory and revenue sources in the post-war environment, and “While some killings were criminal acts, others appeared to be politically motivated, targeting persons believed to be LTTE sympathizers” and “those of particular risk of torture include Tamils who had an actual or perceived association with the LTTE.”[33]
[31] CB 176 at para.51.
[32] CB 176 at para.51.
[33] CB 176 at para.51.
In relation to country information on the human rights situation in Sri Lanka the Tribunal also had regard to both Amnesty International and Human Rights Watch 2012 reports, and a March 2012 International Crisis Group report indicating that:
… After coming down in the aftermath of the war, the rate of abductions and disappearance has surged again in the past few months. Political activists and perceived opponents of the government appear to be targets …[34]
[34] CB 177 at para.52.
The country information cited by the Tribunal includes information from the December 2012 UNHCR Eligibility Guidelines[35] with respect to risk profiles of persons suspected of links with the LTTE. The Tribunal notes that the 2012 UN Eligibility Guidelines did not consider that the fact that a person originated from a previously LTTE controlled area of Sri Lanka created a risk profile, and went on to observe that individuals in certain risk categories may need international refugee protection depending on the specifics of individual cases. The categories identified were:
a)persons suspected of certain links with the LTTE;
b)certain opposition politicians and political activists;
c)certain journalists and other media professionals;
d)certain human rights activists;
e)certain witnesses of human rights violations and victims of human rights violations seeking justice;
f)women in certain circumstances;
g)children in certain circumstances; and
h)lesbian, gay, bisexual trans-gender and inter-sex individuals in certain circumstances.[36]
[35] “2012 UN Eligibility Guidelines”.
[36] CB 177-178 at para.53.
The Tribunal went on to observe that:
The recent UNHCR Guidelines state that there is “ethnic dimension to … vulnerability” as generally it is the Tamil minority who are “reportedly more often subjected to arbitrary detention, abductions or enforced disappearances … In addition to a person’s ethnicity, the place of origin may also be a relevant factor in the assessment of risk.” However, in its 2010 and December 2012 Guidelines, UNHCR clearly states that “[o]riginating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection”.[37]
[37] CB 178 at para.54.
The Tribunal also noticed the increasing size and presence of the military throughout the Tamil regions of Sri Lanka.[38]
[38] CB 178 at para.55.
The Tribunal went on the consider the treatment of people of suspected of being involved or associated with the LTTE, noting that the 2012 UN Eligibility Guidelines identified persons “suspected of links with the [LTTE]” as being a category of persons at elevated risk of harm from the Sri Lankan security forces and paramilitary groups. The Tribunal noted that the 2012 UN Eligibility Guidelines did not consider that the simple fact a person originated from a formerly LTTE-controlled area created a risk profile. It nevertheless recommended that previous real or perceived links beyond mere prior residency may give rise to a need for refugee protection depending upon the specifics of the individual case, particularly where there were established or more elaborate links to the LTTE.[39]
[39] CB 179 at para.56.
The Tribunal also noted that the 2012 UN Eligibility Guidelines referred to documented cases of mistreatment and torture by reason of a person’s, or their family’s members, alleged former links with the LTTE, and that killings had been reported which appeared to be politically motivated, targeting persons believed to be LTTE sympathizers.[40]
[40] CB 179 at para.57.
In relation to the treatment of returnees to Sri Lanka the Tribunal cited a Department of Foreign Affairs[41] October 2012 report on Sri Lanka in which DFAT observed that there was a standard process for dealing with returnees which involves the returnees being:
a)interviewed by various agencies and screened against an immigration database;
b)further questioning of those who were on immigration watch lists;
c)interviewed by agencies, regardless of ethnicity, if a person was identified to be of security interest and where that was the case security agency interviews normally preceded any police interview; and
d)checked against intelligence databases, and during any police interview checks against police databases are made, fingerprints taken and persons photographed.[42]
[41] “DFAT”.
[42] CB 179-180 at para.58.
A similar process was described in a UK Home Office report based on information from the British High Commission in Colombo in January 2012.[43] Those procedures were confirmed by the 2012 UN Eligibility Guidelines, which also observed that there was no systematic post-arrival monitoring of citizens forcibly returned.[44]
[43] CB 180 at para.59.
[44] CB 180 at para.60.
The Tribunal also noted reports from Human Rights Watch and the Freedom from Torture non-government organisation published in September 2012 in which it was indicated that “Tamils with an actual or perceived association with the LTTE remain at particular risk of detention and torture in Sri Lanka”.[45]
[45] CB 180-181 at para.61.
LTTE links
In relation to the applicant’s claim that he was at risk by virtue of being a young male from north, the Tribunal found that the applicant did not have a profile with the authorities as a person involved with the LTTE and would not attract attention, and “relies on … [the 2012 UN Eligibility Guidelines] in rejecting the applicant’s claim that he will be imputed with an adverse political opinion and perceived to be associated with the LTTE simply because he is a Tamil male from Trincomalee”.[46] The Tribunal had specific regard to the reference to risk profiles for Tamils in the 2012 UN Eligibility Guidelines, and having regard to the circumstances of the applicant’s case, including that the applicant was a Tamil male from an area in the north in which the LTTE was active, did not consider that the applicant was at risk of harm.[47] The Tribunal observed that it:
… does not consider that the applicant has a profile with the authorities as a person involved with the LTTE and he has given evidence, which is accepted by the Tribunal, that neither he nor any of his family members were involved with the LTTE.[48]
[46] CB 171-172 at para.35.
[47] CB 172 at para. 36.
[48] CB 172 at para.36.
The Tribunal also considered the applicant’s claim that he would be considered to be an LTTE supporter because he has sought asylum in Australia, and found it reasonable to surmise that the Sri Lankan authorities would deduce that the applicant had made a Protection Visa Application which had been refused.[49] The Tribunal accepted that as a failed asylum seeker the applicant was likely to be interviewed on return to Sri Lanka, but did not accept that his profile was such that there was any real chance that those inquiries would lead to him suffering serious harm, or that he would be subjected to serious harm during the interview process or while being processed at the airport or on any further questioning from the authorities upon his return to Trincomalee. The Tribunal was not satisfied that he would be regarded as an LTTE sympathiser by the Sri Lankan authorities simply because he was a returned Tamil asylum seeker, and found that the country information indicated that he did not possess the additional attributes which would accord him a risk profile giving rise to adverse attention from the Sri Lankan authorities.[50] The Tribunal accepted that the country information indicated that there was discrimination against Tamils, but held that this did not amount to persecution for Convention reasons.[51]
[49] CB 172 at para.37.
[50] CB 172 at paras.38-39.
[51] CB 172 at para.40.
The Tribunal did not therefore accept that there was a real chance that the applicant would suffer serious harm for a Convention reason if returned to Sri Lanka, and that the applicant did not have a well-founded fear of persecution in Sri Lanka.[52]
[52] CB 173 at para.42.
In assessing the complimentary protection criterion the Tribunal had regard to its findings of fact concerning all of the applicant’s circumstances and did not accept that the applicant faced a real risk of suffering any kind of significant harm as that term was defined in s.36(2A) of the Migration Act, and was not satisfied on the basis of all of the circumstances of the case that there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there was a real risk of arbitrary deprivation of life, the death penalty being carried out, or that the applicant would be subjected to torture or cruel, inhuman or degrading treatment or punishment. The Tribunal did not therefore accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia that he would suffer significant harm if returned to Sri Lanka.[53]
[53] CB 137 at paras.44-46.
The Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[54]
[54] CB 174 at para.50.
Judicial review application
By application to this Court dated 29 July 2014 the applicant alleges:
a)“judicial error” (ground 1) which the Court will assume is intended to be a reference to “jurisdictional error”;
b)“the Tribunal did not follow the laws of natural justice” (ground 2); and
c)“bias” (ground 3).
At hearing the applicant initially made no submissions. In response to the Minister’s submissions that there was no jurisdictional error, denial of procedural fairness or bias, the applicant in reply made very short submissions. All of those submissions were directed to taking issue with the factual elements of the Tribunal Decision. In the course of doing so the applicant confirmed that he had not seen his brother taken away in the alleged abduction in 2006, but that he had told the Tribunal that he did, thereby confirming one of the bases upon which the Tribunal had made adverse credibility findings against him.
Consideration
Requirement for jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[55] The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor.[56]
[55] Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[56] (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Grounds 1-3 of the judicial review application are not particularised. Without particulars the three grounds of the judicial review application fail to raise an arguable case for the relief claimed, especially in circumstances where, insofar as the applicant asserts jurisdictional error by the Tribunal, no jurisdictional error is apparent on the face of the Tribunal Decision.
The Tribunal’s conclusions, including those in relation to the applicant’s credibility on certain issues, were reasonably open on the material that was before it. The evaluation of the evidence before the Tribunal, including country information, was a matter for the Tribunal.[57]
[57] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ.
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant.[58] The Tribunal was entitled to assess the applicant’s credibility, and the assessment of credibility is a matter for the administrative decision-maker par excellence.[59] A credibility finding is a finding of fact, and a reviewing body must not set it aside simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.[60] The findings of fact made, including the assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s inability to be satisfied of the applicant’s claims, were open findings on the evidence before the Tribunal, for the reasons set out in the Tribunal Decision.[61] The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[62]
[58] Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at para.19 per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at para.23 per Gilmour J.
[59] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J, and see, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.33 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
[60] W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at 716 per Tamberlin and RD Nicholson JJ; [2001] FCA 679 at para.64 per Tamberlin and RD Nicholson JJ.
[61] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[62] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 is a bare statement alleging jurisdictional error which without particularisation or an obvious jurisdictional error cannot succeed.[63]
[63] WZATN v Minister for Immigration & Anor [2014] FCCA 861 at para.18 per Judge Lucev.
Ground 2
As to ground 2 there is nothing in the Tribunal Decision which leads to a concern that the Tribunal failed to afford procedural fairness to the applicant. The Tribunal was aware of, and had regard to, each of the applicant’s claims. The Tribunal approached its task correctly and in good faith, did not fail to take into account a relevant consideration or take into account an irrelevant consideration. Equally, nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Part 7, Division 4 of the Migration Act.
The requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision are set out exhaustively in Part 7, Division 4 of the Migration Act.[64]
[64] Migration Act, s.422B.
As this was a case to which s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant “normal” procedural fairness.[65] The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal hearing, [66] which invitation was accepted by the applicant.[67] The applicant attended the Tribunal hearing and gave evidence in support of his claims, assisted by an interpreter and with his representative in attendance.[68] The representative, a registered migration agent,[69] made post-hearing submissions on the applicant’s behalf,[70] which were considered by the Tribunal.[71]
[65] Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
[66] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63.
[67] CB 134-135, 141-142 and 170 at para.20.
[68] CB 150.
[69] CB 151.
[70] CB 154-161.
[71] CB 169 at para.19.
The Court finds that there was no failure by the Tribunal to afford the applicant the required procedural fairness under the Migration Act.
Ground 3
In relation to ground 3 it is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven.[72] To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[73] Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment.[74]
[72] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 CLR at 531 per Gleeson CJ and Gummow J and 546-547 per Kirby J; HCA at para.69 per Gleeson CJ and Gummow J and para.127 per Kirby J (“Jia Legeng”).
[73] Jia Legeng CLR at 532 per Gleeson CJ and Gummow J; HCA at para.72 per Gleeson CJ and Gummow J.
[74] Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para.27 per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision shows that the Tribunal properly considered the applicant’s case, and together with the opportunity afforded to the applicant to make post-hearing submissions, demonstrates that the Tribunal gave the applicant the opportunity to persuade the Tribunal to the requisite degree of satisfaction in relation to his claims. In relation to these matters, the Tribunal Decision does not demonstrate pre-judgment on the part of the Tribunal, nor does it give rise to a reasonable apprehension of pre-judgment by the Tribunal.
The applicant has not identified or particularised in what way the Tribunal exhibited bias. There is no evidence of either actual or apprehended bias in the Tribunal Decision. Having regard to what the Court has said above,[75] and absent any additional evidence from the applicant, of which there is none, ground 3 cannot succeed.
[75] See paras.28, 29, 31 and 36 above.
Conclusion – whether jurisdictional error
None of the grounds of review have been made out. The Tribunal Decision does not involve jurisdictional error.
Conclusions and orders
The Court has concluded that none of the grounds of review have been made out, and that the Tribunal Decision does not involve jurisdictional error. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 22 December 2014