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MIGRATION - Application to review decision of Refugee Review Tribunal - no denial of procedural fairness - no actual or apprehended bias - no jurisdictional error.

NABT v Minister for Immigration [2003] FMCA 179 (5 June 2003)

NABT v Minister for Immigration [2003] FMCA 179 (5 June 2003)
Last Updated: 1 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABT v MINISTER FOR IMMIGRATION
[2003] FMCA 179



MIGRATION - Application to review decision of Refugee Review Tribunal - no denial of procedural fairness - no actual or apprehended bias - no jurisdictional error.



Judiciary Act 1903

Migration Act 1958

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498

Kioa v West (1985) 159 CLR 550

Minister for Immigration & Multicultural Affairs v Cho (1999) 164 ALR 339

Mohamed v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 264

Xiao v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1472

Perera v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 507

De Silva v Minister for Immigration & Multicultural & Indigenous Affairs [2000] 98 FCA 364

Dissanayake v Minister for Immigration & Multicultural & Indigenous Affaisr [2002] FCA 976

NAOV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 70

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52

Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17

Li v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 19

Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421

Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703

Re Minister for Immigration & Multicultural Affairs ; ex parte Lam [2003] HCA 6

Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

Applicant:
NABT



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1244 of 2002



Delivered on:


5 June 2003



Delivered at:


Sydney



Hearing Date:


17 April 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1244 of 2002

NABT


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 December 2002 affirming a decision of a delegate of the Respondent to refuse to grant a protection visa to the Applicant. The Applicant applied to the Federal Court under section 39B of the Judiciary Act 1903 on 8 October 2002 and the matter was transferred to this Court by Beaumont J on

28 November 2002.

Background and Tribunal decision

2. The Applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 22 May 2000 and applied for a protection visa on 14 June 2000. On 6 July 2000 a delegate of the Respondent refused to grant a protection visa and 2 August 2000 the Applicant applied for review of that decision by the Tribunal.

3. The Applicant claimed to fear persecution by reason of his political opinion and/or religion in Bangladesh. He claimed to be the book selling agent for Taslima Narseen (or Nasrin) and to have been targeted by Muslim fundamentalists as a result. In particular he claimed to have been attacked in 1992 and 1993, to have had a fatwa issued against him in 1994, a case filed against him under the blasphemy law in 1995 and to have been arrested and tortured by the police in 1996. He claimed to fear further harm from fundamentalists and from the government of Bangladesh and police harassment if he returns to Bangladesh.

4. The Tribunal found that there were fundamental difficulties with the Applicant's evidence. It stated that it did not attach importance to minor inconsistencies of detail and was cognisant of the apparent difficulties that may arise from the passage of time, imperfect recollection, stress, poor advice or inadequate translation and was careful to avoid drawing definite adverse conclusions from inconsistencies which might reasonably be attributed to a momentary lapse. However the Tribunal found that there were fundamental difficulties not reasonably attributable to stress, innocent mistake or mistranslation. The Tribunal referred to inconsistencies between the statement of the Applicant and his submission faxed to the Tribunal on the morning of the hearing on the one hand and his evidence at the hearing on the other and also to internal differences in his evidence at the hearing. The Tribunal also stated that there was hesitancy and inconsistent evidence from the applicant throughout the hearing. It had difficulty in obtaining satisfactory responses to questions which often had to be repeated in order to secure an answer. Further the Tribunal found that the details of specific difficulties encountered in the early 1990's by Taslima and contained in material provided to the Tribunal by the Applicant's adviser were in striking parallel to those claimed to have been experienced by the Applicant himself. The Applicant's evidence was so inconsistent and unsatisfactory that the Tribunal was unable to satisfy itself that his account represented his own experiences rather than borrowings from the accounts of Taslima's experiences. It referred to particular difficulties including the fact that the Applicant had repeatedly claimed to be selling or holding in stock in 1992 to 1993 a particular book written by Taslima Nasrim that was not in fact published until 1999. There was also significant inconsistency found in the applicants accounts of when he had been conducting his book-selling business. The Applicant gave inconsistent evidence concerning these dates. The Tribunal also had difficulty reconciling his ultimate claim to have stopped selling books in 1992, but to have been attacked while selling Taslima titles in 1999 and to have had false charges brought against him by business rivals in 1995. He did not produce any evidence of the fatwa supposedly issued against him in 1994 despite claiming it had been reported in national newspapers. Further, he had been able to secure a passport in his own name and leave (to attend a conference in India) in 1999 and return to Bangladesh in 1999 despite claiming that he was at the same time in fear of persecution, the subject of an arrest warrant (for which there was no documentation) and living in hiding. Taking all the matters detailed into account, and making allowance for memory or emotional disturbance, the Tribunal was not satisfied that the Applicant had adequately or truthfully accounted for his circumstances between 1992 and 2000. It stated

"The Applicant may well have faced significant difficulties in Bangladesh, business or otherwise, but given the degree of embellishment and fabrication in what has been presented to the Tribunal it is unable to satisfy itself as to what these difficulties might actually have been. The Tribunal does not accept that the Applicant's experiences and circumstances were as he has represented them."(Court Book 115)

5. The Tribunal found that while the Applicant may have sold some Taslima Nasrim books in 1992 to 1993 (before they were banned), it did not accept that his involvement or identification with Taslima went beyond that or that he had faced or now faced continuing difficulties amounting to persecution for that reason. It rejected the claim that he was regarded as a number one collaborator of Taslima. It was not satisfied that he was forced to discontinue his book selling business in 1992 or 1993. The Tribunal concluded that the Applicant continued in his business until at least 1996 at which time he may have faced some difficulties (including possibly charges of some kind bought by business rivals motivated by desire to harm his business and business standing but not essentially and significantly for any Convention reason). Notwithstanding such possible difficulties the Tribunal was not satisfied that the Applicant was being sought by police or evading an arrest warrant at the time he travelled to India (and returned) in 1999 or at the time he left Bangladesh to come to Australia in 2000.

6. Further having regard to independent information the Tribunal stated that it would have had considerable difficulty in accepting that the present BNP government in Bangladesh was controlled by the small Jamiat party or that the authorities are committed to punishing every person who had in the past associated with Taslima. The Tribunal did not accept that a person who as a bookseller sold Taslima titles in the course of his normal business up to 1992 (before they were banned) would therefore now be targeted in Bangladesh. It was not satisfied that the Applicant faced a real chance of persecution for a Convention reason on return to Bangladesh.

The application

7. In his application the Applicant claimed that the Tribunal had `not attended any evidence' in relation to his claims and that its decision was influenced (sic) by `sufficient' doubts. It was claimed that `The Applicant provided a suitable vehicle (sic) and most of the grounds relied upon facts and documents, which the Tribunal did not consider'. In particular it was said that the Tribunal did not follow the proper procedure as required by the Migration Act 1958 (no particular procedure was identified), that it was affected by an error of law and jurisdictional error and that there was no evidence or other material to justify the making of the decision. The Applicant also filed an affidavit sworn on 4 October 2002 which essentially repeated his factual claims. In oral submissions the Applicant claimed that during the course of two hearings before the Tribunal the member was very angry with him and asked him irrelevant questions. He claimed that he was under mental pressure and that was why he did not recall dates properly and why he made some mistakes. The applicant submitted that the member had not conducted the hearing properly and that the decision was not correct. He took issue with the factual conclusions and suggested that the Tribunal had not investigated the facts and that he had been denied natural justice.

8. The applicant requested that the Court listen to the tapes of the Tribunal hearings. The Respondent submitted that the Applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its finding that he was not credible and that his evidence was untrue. In relation to the applicant's request that the Court listen to the tapes of the Tribunal hearings, Counsel for the respondent noted that no transcript had been filed by the Applicant and that he had not complied with the directions for filing and serving of an amended application and written submissions. It was submitted that the Applicant could not just state that the hearing was unfair without producing evidence to that effect and that there was nothing in the Tribunal reasons for decision to indicate that the Tribunal did other than provide the Applicant with every opportunity to say what he wished. It was also submitted that the Tribunal did investigate the situation in Bangladesh and indeed referred to the fact that the present BNP government would be most unlikely to punish those associated with Taslima Nasrim. In any event it had rejected his claimed association and this was the ground for the decision regardless of present circumstances in Bangladesh.

9. Despite my concern about the Applicant's failure to comply with the directions for filing further documents, as he is self-represented and in light of the particular circumstances and nature of his claim I have listened to the tapes of the Tribunal hearings on 16 August 2002 and

22 August 2002.

The applicable law

10. Pursuant to s.483A of the Act this Court has the same jurisdiction as the Federal Court in relation to a matter arising under a Migration Act. Under s.475A it has jurisdiction in relation to a `privative clause decision' that is a decision made on a review by the Tribunal. `Privative clause decision' is defined in s.474 of the Act. In Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 the High Court held that as a matter of construction the expression `decision... made under this Act' in subsection 474(2) `must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act' (at [76] and also [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under this Act and is thus not a privative clause decision as defined in s.474 of the Act. Further, a decision flawed for reason of failure to comply with the principles of natural justice is also said not to be a privative clause decision within s.474(2). If there is no jurisdictional error affecting the Tribunal's decision then the decision would be a `privative clause decision' and protected by s.474(1) unless it was shown that one of the Hickman (R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498) proviso has not been met. In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the plaintiff.

11. In this case the essence of the claim raised by the Applicant in the course of oral submissions is that there was a denial of procedural fairness in the conduct of the hearing. It is apparent that, while not expressed in those terms, the applicant raises an issue of actual or apprehended bias as well as the claimed failure by the Tribunal to follow proper procedures in connection with its review and alleged jurisdictional error.

12. In order to consider whether any reviewable error is apparent I have as taken into account all the material before me including the Tribunal reasons for decision and the audio tapes of the Tribunal hearings. Apart from the initial application and accompanying statement by the applicant in connection with his application for a protection visa, no further information was provided to the Tribunal until a faxed submission (which was sent on the day of the hearing) and forty pages of attachments provided at the start of the first hearing by the Applicant's migration agent. In the hearing the Tribunal member did indicate to the migration agent his concern that such late submission of material was not helpful to the Tribunal or to the Applicant but also indicated that the Tribunal would take the time after the hearing to ensure that the Applicant was not disadvantaged by late provision of material by his migration agent. While such comments indicate justifiable concern at the conduct of the migration agent, they in no way evidence any bias or lack of fairness in relation to the Applicant personally. On the contrary. The Tribunal indicated that it would take the time to consider such documentation after the hearing. It did so. The audio tapes reveal that the Tribunal also provided a proper introduction, an explanation of the law and the function of the interpreter for the benefit of the Applicant. The Tribunal properly asked the Applicant if he could follow the interpreter and received an affirmative answer. It should also be said that there is nothing in the tapes to indicate that the interpreter at either the first or the second hearing was in any way inadequate. Indeed the interpreter was at pains to ensure that the Applicant understood the questions asked by the Tribunal. At the commencement of the first hearing the Tribunal also properly indicated that while most of the evidence would take the form of the applicant answering questions put to him by the Tribunal, he would have the opportunity at the end to make additional comments. Such an opportunity was given on the first occasion and also at the end of the second hearing. The Tribunal also advised the migration agent that he would be given the opportunity at the end of the hearing to make an oral submission in relation to any new matter arising in the hearing.

13. I am satisfied that these procedures gave the applicant a reasonable opportunity to present his case to the Tribunal and to deal with adverse matters put to him by the Tribunal member (Kioa v West (1985) 159 CLR 550 at 628 per Brennan J).

14. The Applicant complains that the Tribunal member was angry with him and asked irrelevant questions. However, it is apparent from the hearing tapes that the Tribunal member found it necessary to put to the Applicant inconsistencies between his initial answers to questions and material he had provided in his original application and written submission and also inconsistencies between answers he gave during the hearing. The Tribunal's summary of the Applicant's claims and evidence in the reasons for decision gives an indication of some of the difficulties with his evidence. This is confirmed by the tapes of the hearing. Such difficulties relate in particular to dates of particular events, to the absence of corroboration of claims (for example in relation to the fatwa and arrest). There were inconsistencies in the evidence of the applicant in relation to when he lived underground and differences in his evidence at the beginning of the first hearing and also towards the end of the second hearing. Importantly he claimed that in 1993 he stocked a book by Taslima Nasrim that was not published until 1999. The Tribunal properly put these inconsistencies and difficulties to the Applicant and gave him an opportunity to comment. It was appropriate for the Tribunal on occasion to ask repeated or related questions on the same issue when the Applicant's answers were vague and unresponsive. When asked very specific questions he at times gave generalised answers which focussed on his present concerns rather than the issues about which he was questioned. He was at times hesitant in his answers. In the course of the hearings the Tribunal showed appropriate restraint while nonetheless pursuing the relevant issues in the face of an unresponsive and unhelpful witness. It is also apparent that the Tribunal was at pains to ensure that what may have appeared to have been unresponsive answers did not simply reflect misunderstanding on the part of the Applicant. It did so by rephrasing questions. The Tribunal member did raise concern with the Applicant that he was relying on notes rather than his memory and indeed the Applicant blamed some of his confusion on misreading his notes.

15. Matters came to something of a head when the Tribunal asked the Applicant up to what year he had been selling Taslima's books. After some hesitation the Applicant first said `until I left Bangladesh' and then said `up until 1992'. The Tribunal then, properly, put to the Applicant that in his original statement and written recent submission it was stated that he had continued selling Taslima's books from 1990 to 1998. The Tribunal member indicated that there was a huge difference between 1992 and 1998. After suggesting that perhaps he had forgotten the precise date and it could have been 1998 and then pausing the Applicant indicated that it was 1998. The Tribunal member stated that he was having great difficulty with the Applicant's evidence in this regard. At this point the migration agent attempted to intervene (not for the first time) and suggested that perhaps the Applicant was getting confused and the Tribunal member was getting excited (although this is not apparent from the tone of voice of the member on the hearing tapes). It is clear that the Tribunal member was concerned at this interruption and expressed his concern in a strong tone to the migration agent (but not to the Applicant) asking him to stop interrupting and indicating that he would have the opportunity to make a submission at the end of the hearing. The Tribunal member again asked the Applicant why there were inconsistencies. The Applicant then suggested that to the Tribunal member was asking the same questions again and again and that this was putting him under mental distress. The migration agent again attempted to intervene and was restrained again by the member. The migration agent then asked for a break. The Tribunal member first attempted to obtain an answer from the Applicant to the question that he had asked about inconsistent answers but again the Applicant indicated that being asked the same question again and again put him in a state of mental disturbance and he stated that he found the Tribunal to have a terrible interrogatory attitude. The Tribunal member explained that he was pursuing a line of questions (not asking the same questions) because the answers he was getting were inconsistent and contradictory and had been so since almost the start of the hearing. At that point he took a ten minute adjournment and suggested that the Applicant took the opportunity to collect his thoughts and think about giving his evidence from his own memory and not from some other source.

16. This was an appropriate response to a difficult situation. As discussed below it does not suggest bias or apprehended bias but rather that the Tribunal member was endeavouring to allow the applicant an appropriate opportunity to address adverse matters. Despite the Applicant's expressed concerns that the Tribunal member asked the same questions all the time, it is clear that repeated questioning on the same issue only occurred when the Applicant provided completely unresponsive answers. This was apparent in relation to the applicant's claimed arrest in Bangladesh (which he first said occurred in 1999 and subsequently suggested occurred in 1996). The applicant was unable, despite several questions, to provide details of the charge or adequate details of the court proceedings. Similar issues arose in the context of questions as to why he had not produced any evidence of the alleged 1994 fatwa given that he said that the details had been published in national Bangladeshi newspapers.

17. The Tribunal appropriately adjourned to allow the Applicant a break. It was proper however on resumption for the Tribunal to attempt to obtain answers in relation to issues of concern. The Tribunal commenced by asking a question on a fresh issue in relation to how the Applicant had been able to obtain a passport in his own name in 1999 and legally depart in 1999 and again in 2000 if from 1996 the police had been searching for him and he had been hiding. However the Applicant refused to answer any further questions suggesting that he was really upset because of the way the Tribunal was asking him questions. The applicant suggested that the Tribunal member was angry and that he found this unfair and not the normal way to ask questions and that he was not prepared to answer questions. He sought an adjournment. The Tribunal member explained to the Applicant that it was his duty to put to him matters that required clarification or where there were obvious difficulties or inconsistencies and that that was what he had been doing. He also explained to the Applicant that there appeared to be no reason for an adjournment and that if the Applicant chose not to answer any further questions he should consider the consequences of that. He was told that he would have an opportunity to consult his adviser before saying that that was his final position. The Applicant then claimed to feel sick and ill. The Tribunal member noted that there was no evidence before the Tribunal either before the hearing or at the time of the hearing that the Applicant was a sick or ill person and suggested that the applicant's difficulty was that matters were being put to him which he was unable to explain.

18. The Tribunal member then invited the Applicant's adviser to address the Tribunal. The adviser sought an adjournment on the basis of the Applicant's claimed ill health. It is clear from the exchange between the adviser and the Tribunal member that the Tribunal member was somewhat annoyed with the adviser who suggested that perhaps the Tribunal hearing could be rescheduled with another member. The adviser had interrupted the hearing on more than one occasion at times at which his client appeared to be experiencing difficulties with providing a direct answer to Tribunal questions. The migration agent interrupted the Tribunal member again to suggest that he could produce a psychiatrist to assess his client. However at that point the Tribunal stated that it would allow a short adjournment, because of the material which had been provided to the Tribunal immediately before the hearing which the Tribunal had not had the opportunity to consider. The Tribunal member then spent some time trying to ascertain on what dates the adviser would be unavailable in the next two weeks. The hearing was rescheduled for a time which was not a time which the adviser had said that he would be unavailable. However the adviser did not attend the second hearing. Such absence cannot be attributed to any fault on the part of the Tribunal.

19. At the second hearing the Applicant said that physically he felt much better than before but mentally he was still depressed. The Tribunal member again explained his duty to clarify or obtain further details in the face of inconsistencies or difficulties with the evidence of the Applicant. He informed the applicant that this did not mean that he had actually reached any particular conclusions or adverse conclusions but that he needed to put material to the Applicant and consider his comments with other evidence before coming to a final conclusion. He also asked the Applicant if there was anything he wanted to add or change in relation to his evidence at the earlier hearing. The Applicant indicated that he made a mistake in relation to the year of his arrest and that it was 1996 and not 1999. The Tribunal then continued to question the Applicant. On occasion, as in the first hearing, the Tribunal member re-asked or rephrased questions after unclear or inconsistent responses. At the end of the second hearing the Applicant was given an opportunity to make further comment or put any further information to the Tribunal.

20. It is clear that there has been no failure by the Tribunal to comply with the obligation in s.425 of the Act to invite the Applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review. Nor has there been a lack of procedural fairness. The Applicant was given every opportunity to put information before the Tribunal and to make comments at the start and end of each second hearing. The Applicant was not denied any opportunity to appear and give evidence on an issue the Tribunal considered to be critical to the outcome of the case (see Minister for Immigration & Multicultural Affairs v Cho (1999) 164 ALR 339 per Sackville J at [355] - [6], Mohamed v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 264 at [43] per Branson J and Xiao v MIMIA [2000] FCA 1472). This is not a case where the Applicant was not able, through the conduct of the Tribunal, to give evidence or present arguments. He had abundant opportunity to do both. The difficulty was that he gave inconsistent and unresponsive answers and this necessitated repeat questioning by the Tribunal. There is nothing to suggest that the interpretation was inadequate in the sense considered by Kenny J in Perera v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 507 (also see De Silva v MIMIA [2000] 98 FCA 364 at [8] Dissanayake v MIMIA [2002] FCA 976 and NAOV v MIMIA [2003] FMCA 70).

21. One of the incidents of the duty of procedural fairness is `the absence of the actuality or the appearance of disqualifying bias' (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J and see Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 and MIMA v Jia [2001] HCA 17). The applicant claimed that the Tribunal member was angry with him and asked irrelevant questions and in this respect did not conduct the hearing properly. However, the material before the Court does not establish either actual or apprehended bias on the part of the decision-maker or any denial of natural justice in the conduct of the review by the Tribunal.

22. As Drummond J stated in Li v MIMIA [2000] FCA 19 at [42] "actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant". (Also see MIMA v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J). There is no proof of such a state of mind in this case. The decision-maker did not express views adverse to the applicant's case in a way which indicated that such views were incapable of being changed. Rather the Tribunal member made it clear that he had concerns about inconsistencies and that he sought clarification in relation to issues of concern. He did display some irritation or impatience (more particularly at the migration agent's interruptions) but such displays are not `without more generally sufficient to establish...[actual] bias' (Drummon J in Li at [42]). As in Li, the applicant criticised the Tribunal for challenging his credibility on relevant issues. As in that case this criticism `misunderstands the proper role of the Tribunal and ignores the legislative framework within which the Tribunal must operate' (Li at [44]). The Tribunal properly exercised its inquisitorial role in testing the applicant's credibility by questioning in relation to issues which were of relevance to whether the applicant was entitled to a protection visa. By such questioning the Tribunal gave the applicant the opportunity to address its concerns. This does not suggest a closed mind. Nor, on the material before the Court, am I satisfied that there was any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application (See MIMA v Jia [2001] HCA 17). As Gleeson CJ, Gaudron and Gummow JJ stated in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5] the rule as to apprehended bias when applied outside the judicial system (as here) must take account of the different nature of the Tribunal and the different character of its proceedings (also see Jia at [181] [187] and [100] consistently with the approach adopted by Mason J in Kioa v West (1985) 159 CLR 550 at 585). As indicated the Tribunal has an inquisitorial role. The non-curial nature of the Tribunal and the different character of the proceedings compared to court proceedings is relevant. The credibility of the applicant was clearly in issue. The decision-maker in such circumstances had necessarily to test his evidence and confront him with adverse matters and inconsistencies.

I am not satisfied that the manner in which the Tribunal conducted the hearing was such as to result in the applicant being overborne or intimidated. The Tribunal did put inconsistencies and concerns to the Tribunal. It did so on several occasions but this was in the context of vague and unresponsive answers. The Tribunal did not use the language of prejudgment. To indicate that inconsistencies cause concern and to invite comment does not reveal prejudgment. The Tribunal gave the applicant the adjournment sought, considered the late submitted material and allowed the applicant a further opportunity to respond to issues of concern in the second hearing. In all the circumstances of this case I am not satisfied that either actual or apprehended bias has been established.

23. Nor are the other complaints of the applicant made out. The applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its findings that he was not credible and his evidence untrue, and that his experiences and circumstances were not as the represented them. Such findings are matters of fact for the Tribunal par excellence (Re MIMIA; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]). The Tribunal's findings were open on the material before it for the reasons it gives - in particular the inconsistencies, contradictions, unsatisfactory vague, general and unresponsive answers to questions, his observed demeanour at the hearings and his lack of supporting documentation. This is not a situation where there was `no evidence' as the application suggests. No error is demonstrated in the Tribunal conclusions as to credibility (Kopalapillai v MIMA (1998) 86 FCR 547 at 558 - 559 and W148/00A v MIMA (2001) 185 ALR 703 at [64] - [69] per Tamberlin and RD Nicholson JJ). Error of law and jurisdictional error is alleged but the application did not particularise any error in the Tribunal decision. No such error is apparent. The applicant also suggested that the Tribunal failed to investigate the situation in Bangladesh. The Tribunal is not under an obligation to make inquiries as suggested by the applicant. This is not a case where the Tribunal informed the applicant that it would take certain steps and then failed to do so (cf Re MIMA; ex parte Lam [2003] HCA 6 and the Refugee Review Tribunal; Ex parte Aala [2000] HCA 57). Nor is there anything to suggest that the applicant was misled into thinking that the Tribunal had considered particular information so that the applicant did ensure that such information was placed before it (cf Muin v Refugee Review Tribunal [2002] HCA 30). No denial of procedural fairness or jurisdictional error has been demonstrated. The decision is a privative clause decision. No failure to observe the so called Hickman provisos (R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598) has been established. The application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 June 2003
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