FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZQRV v MINISTER FOR IMMIGRATION & ANOR	[2012] FMCA 353	

MIGRATION – Review of the decision of the Refugee Review Tribunal – allegation of bias –procedural fairness – no jurisdictional error – application dismissed.	

Migration Act 1958 (Cth), ss. 36, 65, 422B, 424A, 424AA, 425, 425A, 426, 426A, 427, 441A, 441C, 476
Migration Regulations 1994 (Cth), r.4.35D	

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Commissioner of the ACT Revenue v Alphaone (1994) FCR 576 
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 176 ALR 219
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
VCAK of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
W38 /01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 	

Applicant:	SZQRV	

First Respondent:	Minister for Immigration & Citizenship	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 2203 of 2011	

Judgment of:	Nicholls FM	

Hearing date:	24 April 2012	

Date of Last Submission:	24 April 2012	

Delivered at:	Sydney	

Delivered on:	24 April 2012	

REPRESENTATION
The Applicant:	In Person	

Appearing for the Respondents:	Ms N Johnston	

Solicitors for the Respondents:	Sparke Helmore	

ORDERS

(1)	The application made on 30 September 2011 is dismissed.
(2)	The applicant pay the first respondent’s costs set in the amount of $4,000.00.
(1)	
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney	
SYG 2203 of 2011
SZQRV	
Applicant

And

Minister for Immigration & Citizenship	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
1.	I have before me an application made on 30 September 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 2 September 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
2.	The applicant is a national of Pakistan who arrived in Australia on 22 October 2010 on a tourist visa. He applied for a protection visa on 7 January 2011 (Court Book – “CB” – CB 1 to CB 25). 
Claims to Protection
3.	The applicant’s claims to protection were initially set out in a statement attached to his application for a protection visa (CB 26 to CB 28):
1)	The applicant claimed to be an “ethnic Muslim” from a “low caste”. He became romantically and intimately involved with a woman from a “socially upper class” family who objected to the relationship. He was beaten several times by members of the girlfriend’s family.
2)	While injured and hospitalised she told him she was pregnant. He claimed it was a criminal offence in Pakistan to make a woman pregnant before marriage. 
3)	The woman was subsequently killed by her family (her brother). The applicant feared a similar fate and left Pakistan. He feared that he would be killed by the woman’s brother if he were to return. 
4)	The applicant stayed in Malaysia for some six months before coming to Australia on a tourist visa.
4.	The applicant attended an interview with the Minister’s delegate and, in addition to the above, the applicant told the delegate that neither he nor his family had approached the police for protection in Pakistan. He claimed that the police could not protect him because the woman’s brother had taken an oath to kill him.
The Delegate
5.	The delegate found “multiple inconsistencies and contradictions” in the applicant’s claims for protection and in, and with, information he had provided in his tourist visa application, and to airport authorities on arrival in Australia (CB 65). This included, in contradiction to what was said in the protection visa application, that he was the “owner of a garment business”. His claim at interview, which was not accepted (given documentary evidence to the contrary), was that his family business had ceased in 2007.
6.	The delegate was not satisfied as to the applicant’s credibility or the veracity of his claims. The delegate rejected the factual basis of the claims in the protection visa application and accepted the factual claims set out in the applicant’s tourist visa application and in his statement when interviewed upon arrival at the airport by the authorities. The delegate found the applicant’s claims to be “unfounded and improbable” and that the applicant had “falsified or fabricated information to evidence his claims to protection”. The application was refused on that basis (CB 63 to CB 65).
The Tribunal
7.	The applicant applied to the Tribunal for review on 29 April 2011 (CB 67 to CB 71). While the applicant was initially invited to a hearing scheduled for 27 July 2011 (CB 73) this was rescheduled at the initiative of the Tribunal to 26 August 2011 by letter dated 1 August 2011 (CB 77 to CB 80). 
8.	The applicant gave evidence to the Tribunal at the hearing. The Tribunal’s account is set out in its decision record ([27] at CB 87 to [46] at CB 91). It also appears that the Tribunal had regard to certain pages in the applicant’s passport, information on the Department file regarding his application for a tourist visa, and certain matters discussed with the delegate at the interview.
9.	The Tribunal understood the applicant’s claim to be that he feared serious harm on return to Pakistan from the brother of a woman with whom he had a love affair, and which was opposed by her family. The Tribunal accepted that, although the applicant had not identified a relevant Refugee Convention ground, such a connection may be supplied by reference to a particular social group, which the Tribunal speculated may be members of a “low or downtrodden caste” ([47] at CB 91). 
10.	The Tribunal appeared, it must be said, somewhat confused in that regard as that was said with reference to India, and not Pakistan ([48] at CB 91).
11.	It is perhaps understandable in one sense that the Tribunal made what is clearly in context a mistaken reference to India instead of Pakistan. I take judicial note that matters of caste conflict, regularly appearing before this Court, are more normally associated with Hindu practices and social castes in India, rather than in cases of persons from predominantly Muslim Pakistan, it being the case that the Islamic faith is, amongst other things, posited on the belief that all men are equal. [The position of women is different, but is not related to the matters of castes.] In any event, and whatever the case, such a factual error does not reveal any jurisdictional error on the part of the Tribunal. 
12.	I note in any event two further matters. First, the mistaken reference to India appears in that part of the Tribunal’s reasoning that was advantageous to the applicant. It would have been open to the Tribunal to find the applicant’s claims had no Refugee Convention nexus, and for that on its own to have been the basis for affirming the delegate’s decision. The Tribunal chose not to do that, and elected to give the applicant the benefit of the doubt that there may be some Convention nexus between his claims as stated and a ground in the Refugee Convention
13.	Second, it is quite clear that, apart from that one mistaken reference, the Tribunal was well seized of, and otherwise understood, that the country of nationality and contextual nationality in which the applicant’s refugee claims were to be assessed, was Pakistan. On at least a fair, if not plain, reading, the Tribunal’s reasoning in its decision record makes that abundantly clear.
14.	The basis for the Tribunal being unable to reach the requisite level of satisfaction such that the protection visa must be granted (s.65 and s.36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 (“SJSB”)) was that it rejected all of the applicant’s claims to fear harm because of its adverse findings as to the applicant’s credibility. That is, the Tribunal found that the applicant was not to be believed in his claims supporting his application for a protection visa. 
15.	It is quite plain, from a reading of the Tribunal’s decision record, that a number of elements were relevant here. The Tribunal found the applicant’s claims to have suffered harm over a forbidden love affair to be “unsubstantiated from any external source …” and not to amount “… to much more than simple assertions” ([50] at CB 91).
16.	Further, the Tribunal found that the applicant’s oral evidence at the hearing did not increase confidence in these claims as he “… was able to offer little circumstantial detail …” and failed to give the impression that he was describing incidents of “authentic first hand experience” ([50] at CB 91 to CB 92). Even further the Tribunal found that the applicant’s oral evidence was “notably inconsistent at a number of points” ([50] at CB 92). This included the preparation and completion of the applicant’s protection visa application form.
17.	The above aspects were not necessarily seen as the basis for not believing the applicant but, as the Tribunal said, they “… provide little to counterbalance doubts raised by other significant inconsistencies raised by his claims” ([51] at CB 92).
18.	These were said to be his evidence as to whether he was married and his explanation as to why his tourist visa application, and his oral statements on arrival, contradicted his claims before the Tribunal not to be married. This was seen as a “major discrepancy” that remained unexplained ([52] – [53] at CB 92).
19.	The Tribunal found the circumstances of the filling out of the application for a protection visa “… casts strong doubt over the truth of his claim…” to have been romantically involved with the now deceased woman ([53] at CB 92).
20.	The Tribunal therefore rejected the entirety of the applicant’s factual account of claimed events in Pakistan and, in essence, the basis of the claim to fear harm on return ([55] at CB 92 to CB 93). 
The Application to the Court
21.	The application to the Court asserts the following grounds:
	“1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to heard in respect of those matters.
	2. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
	3. The RRT has failed to investigate applicants claims, specially the grounds of persecution, in Pakistan. Therefore, the Tribunal decision dated 5 September 2011 was effect by actual bias constituting judicial error.”
Before the Court
22.	Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Urdu language. Ms N Johnston appeared for the first respondent.
23.	It is not clear who drafted the applicant’s grounds as stated in his application. But what is clear is that they are bare, general assertions lacking in any particularity. As I said to the applicant today, they are presented in a somewhat formulaic form, often seen in matters of this type before the Court. 
24.	It was for this reason that I took steps at the first Court date of the matter to alert the applicant to the distinction between the role and powers of the Tribunal and the role and powers of this Court. It is the case that this Court has no power to grant the applicant a protection visa. The role of the Court is confined to ensuring that the Tribunal’s attempt at addressing the question of whether the applicant should be granted protection in Australia is done according to the law.
25.	It was for this reason, the paucity and formulaic nature of the grounds, that I urged the applicant to attend upon, and listen to, the lawyer on the panel of the Court’s “RRT Legal Advice Scheme” assigned to him. It is the case that the applicant told the Court on the first Court date that the grounds of his application had been prepared by a lawyer known to a “friend”. Nonetheless the applicant was on notice at that time as to the nature of the proceedings before the Court, and the need to address his application in a manner consistent with the nature of these proceedings. That is, to address the question of whether the Tribunal’s decision fell into jurisdictional error, and to do so in a way that is meaningful.
26.	I note on the Court file a certificate from a lawyer on the panel who certifies having provided written advice to the applicant. While not clear before the Court today, it appears the applicant elected not to read or to seek any translation of that advice. (He did not open the letter from the lawyer.) That is a matter for the applicant.
27.	Given therefore the applicant’s appearance today, despite opportunity to augment and particularise his claims and present arguments, with nothing more than what was presented at the first Court date, it is important to note that the general thrust of the applicant’s complaint in the application is that the Tribunal’s findings as to the applicant’s lack of credibility were not findings of fact made within jurisdiction. 
28.	The Tribunal was entitled, as I said to the applicant earlier today, to weigh his evidence, attribute weight, and to resolve questions of credit in deciding whether the applicant had a well-founded fear of persecution for a Convention reason (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 (“Wu Shan Liang”); Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”)). As I sought to explain to the applicant, the Court cannot review the merits of the applicant’s factual account. Which, in essence, is the sum of the grounds before the Court.
29.	Before the Court today the applicant essentially said that he should be allowed to remain in Australia, that he did not wish to return to Pakistan, and that protection should be given to him. None of this asserts jurisdictional error on the part of the Tribunal. It adds nothing to the unparticularised grounds beyond seeking impermissible merits review.
Complaint One
30.	The applicant’s first complaint asserts a failure to afford procedural fairness because the Tribunal was said to have reached adverse conclusions, not obviously open on the known material, without giving the applicant the opportunity to be heard.
31.	On the evidence before the Court, whether regard is had to the principles of procedural fairness at common law, or the relevant statutory code set out in Div.4 of Pt.7 of the Act, this claim must not only be rejected, but draws the comment from the Court that whoever assisted the applicant in putting this before the Court has either not read the Tribunal decision record, or was wilfully blind to its meaning and reasoning.
32.	It is the case that a failure to give an applicant the opportunity to comment on adverse material in respect of which they are not on notice could well lead to a failure of procedural fairness, particularly if the material is credible and relevant (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (“Kioa v West”)).
33.	Further, the applicant’s complaint, which appears to be asserted on the basis of the Tribunal’s reasoning process, echoes what was said by the Court in Commissioner of the ACT Revenue v Alphaone (1994) FCR 576 at 592, a well known and often quoted case in matters of this type (see also Re Minister for Immigration & Multicultural Affairs Ex parte Miah (2001) 206 CLR 57). In particular that any issue that is critical to the decision, which is not apparent from its nature or the statute under which the decision is to be made, must be put to the applicant.
34.	This, of course, is reflective of the principle that an applicant has the right to know the case against him and be given the opportunity to be heard (Kioa v West). The decision maker cannot direct attention from the critical factors that will determine the case and thus deprive the applicant of the opportunity to be heard on that issue (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 176 ALR 219 per McHugh J at [103]).
35.	In the current case the Minister submits that, given that this is a case to which s.422B of the Act applies, the Tribunal was not required to afford the applicant natural justice at common, or general, law. The Minister relied on Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and SZCIJ v Minister for Immigration &Multicultural Affairs [2006] FCAFC 62.
36.	Bearing in mind what the High Court said in Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204, this is a case where the matter, apparently the subject of the complaint by the applicant, is dealt with in Div.4 of Pt.7 of the Act. That is, it is dealt with by s.425 of the Act.
37.	In this regard the Tribunal’s procedural fairness obligations were set out by the High Court, relevantly, in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”). In essence, where any issue is not a live issue as the result of delegate’s decision, but is an issue dispositive or determinative of the review, then such an issue must be raised by the Tribunal at the hearing and the applicant be given the opportunity to comment. 
38.	But it is the case, on whatever basis, whether common law or the application of the statute, that the applicant’s complaint does not succeed in the circumstances of this case. The applicant has brought no evidence before the Court, for example a transcript of the hearing with the Tribunal, to challenge or contradict the Tribunal’s account of what occurred.
39.	On that account the Tribunal plainly raised its concerns with the applicant’s factual account. It certainly did more than “sufficiently indicate” its concerns to the applicant (SZBEL at [47]). In any event, in terms of s.425 of the Act and the Tribunal’s procedural fairness obligations, the applicant would have been in no doubt following the delegate’s decision that his entire factual account was at issue and was a live issue in his case.
40.	At both common law and pursuant to s.425 of the Act the applicant knew the case against him, was given the opportunity to comment and to explain. There is no failure of procedural fairness just because the Tribunal did not believe him.
41.	I should just note for the sake of completeness that although the date for the hearing was rescheduled at the Tribunal’s instigation, and therefore the Tribunal was required in those circumstances to comply in that second invitation with all the relevant statutory requirements, the Tribunal did in fact do so (ss. 425, 425A, 426, the reference to ss.426A, 441A, 441C and r.4.35D of the Migration Regulations 1994 (Cth)).
42.	In submissions the Minister also, helpfully, focused on s.424A and s.424AA of the Act, both sections appearing in the statutory code in Div.4 of Pt.7 of the Act. These both deal with the Tribunal’s obligation to put to an applicant information which it considers would be the reason, or part of the reason, for affirming the delegate’s decision.
43.	It must be said that I did not understand the applicant’s complaint to necessarily go further than to complain about the Tribunal’s alleged failure to put “adverse conclusions” to him for comment. As such the Tribunal’s adverse conclusions, its appraisals and view of the applicant’s evidence, is not “information: for the purpose of s.424A(1) of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18] and the reference there to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471).
44.	But in any event, even beyond the applicant’s complaint, and trying to give as wide as possible a scope to the applicant’s complaint, it appears on a plain reading of the Tribunal’s account of the hearing that there may have been other information that did engage s.424A(1) of the Act. This was information from the applicant’s tourist visa application and what he told airport authorities on arrival.
45.	I agree with the Minister that the language used by the Tribunal in its decision record indicated that it followed the procedure set out in s.424AA of the Act, even though no express mention is made of it. The Tribunal gave the applicant particulars of this information (s.424AA(a)), told him of its relevance (s.424AA(b)(i)) and advised him he could seek further time to comment (s.424AA(b)(ii)). The applicant, according to the Tribunal’s unchallenged account, elected to respondent immediately, and he did so (see [44] – [45] at CB).
46.	In this fashion the Tribunal used the facility available to it to discharge, orally at the hearing, its obligation pursuant to s.424A(1) (see s.424A(2A) of the Act and SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). 
47.	In all, complaint one is not made out.
Complaint Two
48.	In complaint two the applicant complains that the decision was “unjust” and that the Tribunal failed to take into account the full “gravity” of his claims.
49.	To the extent that this is a complaint that the Tribunal’s decision was not “fair”, then the best that any applicant can hope for, in law and in light of the extent of available judicial review, is a fair process, not necessarily a “fair” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1).
50.	If the applicant seeks to complain that there was some aspect, grave or otherwise, of his claims that was not considered by the Tribunal then he has not said, or given any particulars as to what such a complaint may be. 
51.	It is the case that a failure to consider a claim or aspect of a claim expressly made or clearly arising from the circumstances presented may indeed lead to jurisdictional error (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1). But the difficulty for the applicant is that no such failure is apparent. In the circumstances the applicant’s complaint appears to be nothing more than a challenge to the facts as found by the Tribunal. The Tribunal’s adverse credibility finding, being a finding of fact, was made within jurisdiction in circumstances where it was reasonably open to the Tribunal to make on what was before it, and for which it gave reasons. Therefore no jurisdictional error is revealed in these circumstances (Wu Shan Liang, Durairajasingham and Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). 
52.	Complaint two does not succeed
Complaint Three
53.	The third complaint has two elements. The first is that the Tribunal failed to investigate the applicant’s claims in Pakistan. The second is that, as a result, the Tribunal’s decision was affected by “actual” bias.
54.	The applicant has not said to the Court what investigation the Tribunal should have conducted in Pakistan. In any event I cannot see that the Tribunal was under any obligation, in the circumstances of this case, to conduct any investigation of claimed events in Pakistan.
55.	As the Minister correctly, in my view, submits, it is for the applicant to put forward his case. If the Tribunal cannot reach the requisite level of satisfaction such that the protection visa must be granted on what is before it (SJSB) then there is no general duty on the Tribunal to make further inquiries in circumstances were the claims as presented are found not to be credible or genuine (see s.427 of the Act and VCAK of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24] – [25] and W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 at [74] – [78]). 
56.	There is nothing in the circumstances of this case, nor has the applicant even suggested, that there was an obvious inquiry about a critical fact, the existence of which is easily ascertained, such that a failure to do so may lead to jurisdictional error (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]). 
57.	It is difficult in the circumstances to envisage what such an inquiry should have been. While the applicant provided the name of the woman with whom he said he had the romantic liaison, he did not know the full name of the brother, nor the details of her family. Nor had any report been made to police, nor had the police, according to the applicant, taken any action over the murder of his girlfriend ([42] at CB 89 to CB 90). 
58.	While he claimed that the matter of her murder had been reported in the newspapers, he provided no details to the Tribunal such as to enable any obvious inquiry to have been made. Ultimately, despite being on notice of the matters against him, that is the issue of lack credibility in his claim to protection, there is no evidence that the applicant sought of the Tribunal that it undertake any such inquiry. Nor did the Tribunal mislead him by suggesting that any inquiries would be made.
59.	As such the first aspect of complaint three does not reveal jurisdictional error.
60.	It is the case than an allegation of actual bias is a very serious charge to level at a decision maker. Such a charge is not just an assertion of legal error, as serious as that is of itself, but an attack on the very integrity of the decision maker. It is for this reason, as the various legal authorities make clear, that such an allegation must be distinctly made and clearly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”) per Gleeson CJ and Gummow J at [69] and per Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)).
61.	It is of note that, perhaps understandably, an applicant who feels aggrieved by a Tribunal’s decision and whose own integrity has been questioned by the Tribunal, then feels free to question the integrity of the Tribunal member. But if an applicant chose to embark on that course, such an assertion must have some probative basis in its statement.
62.	All that the applicant has put forward in this case is the mere fact that the Tribunal failed to make an inquiry. That, in itself, does not reveal actual bias on the part of the Tribunal. Nor, in a real sense, is it a probative basis for any assertion, or inference, of bias on part of Tribunal. The relevant test for bias is that the Tribunal did not bring an open mind to the proceedings, and was not open to persuasion (Ex parte H and Jia Legeng). 
63.	It is a rare case that such an allegation can be made out on the Tribunal’s own decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). But in essence that is what the applicant has sought before the Court. The applicant has brought no evidence to support this bald assertion despite opportunity given by orders at the first Court date (there is no transcript of any of the Tribunal hearing before the Court). Nor did the applicant say anything to the Court to suggest that he could have done so. 
64.	On what is before the Court, actual bias is not made out. The Tribunal gave the applicant the opportunity to explain himself at the hearing. Actual bias is not made out simply because the Tribunal did not ultimately accept his explanation for the discrepancy and inconsistency in his various accounts and the implausibility, as found, of his latest account in the protection visa applicant. These included the circumstances of its creation and presentation. 
65.	The complaint in all is not made out.
The Applicant’s Oral Submissions to the Court
66.	Nothing the applicant has said today reveals jurisdictional error. None of the grounds, or complaints, in the application reveal jurisdictional error on the part of the Tribunal. 
Conclusion
67.	I cannot otherwise see, on all the material put before the Court, that the Tribunal has fallen into jurisdictional error. For the applicant to succeed in his application the Court would, at the very least, need to find some jurisdictional error. In light of no such error being evident, it is appropriate that the application to the Court be dismissed. I will make an order accordingly.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  14 May 2012