SZNWM v Minister for Immigration & Anor [2009] FMCA 1259 (18 December 2009)

Last Updated: 21 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1259

MIGRATION – Review of decision of Refugee Review Tribunal – no adjournment granted – reliance on country information to highlight deficiency in applicant’s evidence and knowledge – no expectation of documentary evidence by Tribunal – no jurisdictional error – no breach of procedural fairness – application dismissed.

Migration Act 1958 (Cth), ss.422B, 425, 476

NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515

Applicant:

SZNWM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2118 of 2009

Judgment of:

Nicholls FM

Hearing date:

10 December 2009

Date of Last Submission:

10 December 2009

Delivered at:

Sydney

Delivered on:

18 December 2009

REPRESENTATION

Appearing for the Applicant:

In Person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application made on 1 September 2009 is dismissed.
(2) The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG2118 of 2009

SZNWM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 1 September 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
   5 August 2009, 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 citizen of India. He arrived in Australia on
   12 October 2008 on a Short Business Stay visa, and applied for a protection visa on 24 November 2008 (Court Book – “CB” – CB 1 to CB 35 including an annexed statement).

Claims to Protection

3. The applicant claimed to be from the state of Kerala and to fear persecutory harm if he were to return to India because of his claimed homosexuality. He claimed to be a Christian.
4. The applicant claimed to fear harm in particular from the Muslim League which was the predominant party in his area. He claimed to have sought protection by associating with the “LDF” (a coalition of left wing parties) who he claimed did not mind his homosexual relationship with a former school friend.
5. Following an unsuccessful bid where he stood for local election in 1995 as an independent candidate he was harassed by a mob from the ruling party. The LDF did not protect him. He claimed the harassment continued and he became fearful after being told that he and his partner would be killed.
6. Some months later the applicant claimed he was summoned to attend Court in relation to an attack on a member of the Muslim League. While the case was dismissed for lack of evidence, he was continually harassed by police and members of the ruling party.
7. Some time later the applicant moved to a neighbouring state, and borrowed money to buy a “lorry”. He claimed that it was stolen by “some Kerala people”.
8. The applicant claimed to have moved to a number of other localities but returned to Kerala because of his partner and continued to live there peacefully until 2007.
9. The applicant also claimed that in July 2007 a number of people “yelled” abuse at them at his house. He became fearful and travelled to Japan and to other locations in India, while his partner remained in Kerala.
10. Following his being sent back from Sri Lanka because he was suspected of being a terrorist, the applicant travelled to Australia. After arrival he learned that his uncle had died and that “foul play” was suspected.

The Delegate

11. The delegate noted that the information provided by the applicant in his application for a Business visa was inconsistent with that provided at an interview. In light of a lack of evidence in support, and the vagueness and inconsistencies in his history, the delegate was unable to accept the applicant’s employment history (CB 89).
12. The delegate did not accept that the applicant was homosexual for a number of reasons, including inconsistency of some of his claims with country information, implausible aspects to his claims, a lack of awareness of the lawfulness of homosexuality in India, and a lack of awareness of gay and lesbian activist groups or magazines and websites in India.
13. Further, that the applicant had demonstrated little interest in expressing his homosexuality in Sydney, and had “no knowledge of any free gay literature, newspapers and has not read or bought any gay magazines since he has been in Sydney”, or explored any gay venues other than the one mentioned above.
14. The delegate did not accept evidence provided to support the applicant’s claims that he had been a candidate in the local elections, and found that as the applicant: “... has shown that he has been prepared to provide false documents to obtain a temporary business visa to come to Australia... I consider that he would also be prepared to do the same to obtain a permanent protection visa” (CB 92). Further, in the absence of any evidence to support his claim that he attended court in relation to an alleged assault, the delegate did not accept that this had occurred.
15. The delegate did not accept that the applicant had an objective fear of harm, as he had repeatedly returned to India and Kerala, and more particularly, and had not left for Australia immediately upon obtaining a visa (CB 92).
16. The delegate also considered the issue of relocation, and determined that there was no evidence to indicate that the applicant would not be able to relocate within India.

The Tribunal

17. The applicant applied for review by the Tribunal on 18 March 2009 (CB 94 to CB 97). A number of documents were provided in support. He was invited to, and attended, a hearing before the Tribunal on 6 May 2009. The Tribunal’s account is set out in its decision record ([74] at CB 171 to [159] at CB 182).
18. The Tribunal’s reasons are at paragraphs 172 to 247 of its decision record. It found that the applicant was an unreliable and inconsistent witness. Further that, in a number of respects, the information presented by the applicant in his written statement annexed to his protection visa application did not “sit” with the information provided in that application. Also that information provided in the application was inconsistent with that presented at the hearing. Still further, the Tribunal found that the applicant was “in the business of tailoring his story to deflect or withstand enquiries as they arose, rather than speaking from his own lived experience” ([189]). The Tribunal stated that the applicant was put on notice as to the need to be consistent, but that the “tailoring” of evidence continued.
19. The Tribunal was not satisfied that the applicant was aligned, or affiliated, or perceived to be affiliated, with political parties opposed to the Muslim League, or that he had stood for election in 1995. The Tribunal considered that: “Much of his case collapses in view of this finding” ([218]).
20. Ultimately, the Tribunal was not satisfied that the applicant faced a real chance of being persecuted for reasons of being, or being perceived to be, an opponent of the Muslim League ([243]), or that he had been in a homosexual relationship with any person in India [238], or for being, or being perceived to be, a homosexual ([244]). Nor was it satisfied that the applicant faced a real chance of being persecuted for reasons of being, or being perceived to be, a Christian ([245]).

Application to the Court

21. The application to the Court contains the following grounds:
    • “1. The Decision made by RRT is Jurisdictional error
    • 2. Breach of procedural fairness;
    • 3. Breach of natural justice”
    • [No particulars provided.]

Before the Court

22. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Mr P Reynolds of counsel appeared for the first respondent.

The Application for an Adjournment

23. At the beginning of the hearing the applicant sought an adjournment. He was granted relevant leave, and his affidavit of 5 December 2009 was read into evidence. The applicant was cross examined.
24. Also taken into evidence for the first respondent was the affidavit of Carla Mills made on 10 December 2009, a lawyer in the employ of the first respondent’s solicitors (no objection). I also took into evidence a copy of a letter dated 27 November 2009 from Brigitte Markovic, a partner of the first respondent’s solicitor, to the applicant (“RE1”).
25. The applicant sought an adjournment so that, he said, he could provide an amended application to the Court. The applicant claimed that the “person” assisting him had not been available, that another “friend” whom he described as a hospitality student was now assisting him. He also claimed to have had difficulty with his residential addresses. I understood this to be that he moved frequently and there was some difficulty in receiving correspondence in a timely fashion.
26. There were a number of unsatisfactory aspects to the applicant’s evidence as to his inability to have acted in a more timely fashion in prosecuting his case before the Court.
27. I refused the adjournment request for two reasons. First, the unsatisfactory explanation as to the applicant’s claimed difficulties in explaining the delay in taking action to amend his application. The applicant has had at least two months to have taken satisfactory steps to pursue his application.
28. Second, in the circumstances I could not see any useful purpose would be served, nor was it in the interests of the administration of justice, to give the applicant even a short adjournment for the purpose claimed. As I explained to the applicant, the amended application, for which he said he wanted more time, would only really be of use if that amended application properly put assertions that went to the issue of whether the Tribunal made a “legal mistake” (jurisdictional error). It is not whether the Tribunal made the “right” decision, it is whether the Tribunal made its decision according to the law.
29. The applicant seemed to be under some misapprehension as to what that amended application could usefully contain. The applicant’s evidence was that a hospitality student, who from what I understood, had absolutely no legal knowledge, was “helping” the applicant. I could not see that that, without anything else, was going to provide any useful amended application or any useful basis for me to give the applicant more time. No lawyer was involved in the applicant’s plans.
30. A further problem that I had arose from the evidence that has been put before the Court that goes to what action the applicant had taken on his own behalf to push forward, in a timely way, the matters that are relevant to proceedings before this Court, and which were in his interests to push forward in a timely fashion. The applicant said that the past events in India still disturb him. If what occurred to him in India was of such a disturbing nature, even to the extent that he said that he had problems “mentally”, I would have expected someone in that position who is fearful of going back to India to have taken strong and decisive action to have moved things forward. I also note that in any event the applicant did not put evidence before the Court to support the assertion that he may be suffering some psychological condition that would affect his capacity to at least take some action on his behalf.
31. The applicant complained that he did not receive the Court Book until recently. It appears in part, that this was because he changed address frequently and did not notify the Minister’s solicitor. The applicant attended the first court date on 7 October 2009. While I understand that this may have been, on that day, a strange environment for him to deal with, what is certainly clear is that, from that time, he had knowledge that the Minister was going to provide the bundle of relevant documents (“the Court Book”), and that the Minister would serve that bundle of relevant documents on him.
32. The applicant said that he had some expectation in relation to all of his changes of addresses that the Court would pass on notification of the changes of address to the Minister’s solicitors. But I find it difficult to accept that the applicant had that expectation in light of the fact that, on the first occasion that he notified a change of address, he sent that to the Minister’s solicitors himself, or someone sent it on his behalf, or he caused it to be sent. At best it can only be said to be unclear as to why he would suddenly have this expectation contrary to what had been the situation that he complied with on the first occasion.
33. As Mr Reynolds also noted, the applicant’s evidence was that on one relevant occasion there was some police interest in the house where the applicant was living, and that he could not go back to obtain his documents. That must be seen in the context that he obviously did have some friend, this student, who could assist. The student may not be able to assist with legal matters, but could assist with the mechanics, if I can put it that way, of communication.
34. The evidence of the applicant’s claimed difficulties did not emerge in any coherent fashion. However, it does not appear that the applicant used his friend to communicate in a timely fashion. The first communication with the Minister’s solicitors as to any difficulty, by the time that he did look to communicate, was some considerable time after the time when it would be reasonable to expect that a person in his situation would have taken some sort of positive action to obtain the bundle of relevant documents, very important documents, that he knew about way back at the beginning of October. It was not until the end of November that any relevant action was taken.
35. That communication is the subject of evidence from Ms Mills. That reveals that whoever rang Ms Mills on 26 November 2009 to complain that he had not received a copy of the Court Book identified himself as the applicant. Before the Court the applicant’s evidence was that his friend made the telephone calls. The inference to be drawn is that the friend impersonated the applicant.
36. The Court hearing was scheduled for, and was held on 10 December 2009. A date, as I stressed to the applicant, that would have been known to him back at the beginning of October as the date upon which we were all going to assemble to consider his case.
37. Further, the evidence shows that the Minister’s solicitors acted in as timely and as reasonable a fashion as possible. Although attempts had been made to serve a copy of the Court Book on the applicant at an earlier time, they immediately arranged for another copy of the Court Book to be sent to the applicant (“RE1”)
38. The evidence of Ms Mills is that the applicant was told that another copy would be provided to him. This was in the telephone conversation of 26 November 2009. The applicant was told that someone would call him later that day. It appears that his response was: “Can you telephone my friend because I am working”. If going to work was more important than receiving communication about this very important bundle of documents, then the applicant clearly indicated where he had, in his own mind, settled his priorities. I note that the Minister’s solicitors again took almost immediate action to inspect the Court’s file to find the change of address notices that had been filed on the applicant’s behalf, and when a telephone call was subsequently made, on two occasions, to the telephone number that was provided there was no response (I note that this is the number that the applicant provided to the Court as his contact number).
39. What should also be noted is that even though the applicant claims not to have received the Court Book until 4 December 2009, the applicant was given legal advice by the lawyer on the panel of the Court’s Legal Advice Scheme on 26 November 2009. It is difficult to see that the advice could have been given without recourse to a copy of the Court Book.
40. I note the evidence that the date that that advice was provided to the applicant was the same day that the applicant rang the Minister’s solicitors to complain that he had not received the Court Book.
41. In any event, what the Court is left with is that in this very important matter, on its face, the applicant took some time to rouse himself to tell the Minister’s solicitors that he had not received the documents that should have been given to him. When he was told that a telephone call would be made to facilitate the delivery of the Court Book (on a second occasion), the applicant’s response was to tell the caller not to call him because he would be at work. Further, it was pressed to the applicant that the telephone call should be made to him, and in the context that appears quite reasonable. There was subsequently no response on the telephone phone number that the applicant himself had provided.
42. Further, it is quite clear, from what the panel advisor has reported to the Court’s registry, that the applicant was in receipt of some legal advice. I draw no inference, nor is it appropriate for me to do so, about what may or may not have been contained in that advice. That is not relevant for me to consider. But what is relevant is that the applicant did have access to legal advice, and yet what he put to the Court was that the Court should grant him more time, not because of anything that the legal advisor may be seeking to assist him with, but what a legally untrained hospitality student may or may not be able to help him with.
43. I am satisfied, on the evidence before the Court, that the applicant would have received, at least on the second occasion, the Court Book by 30 November 2009. The best that the applicant put before the Court as to why the time available was not sufficient, was that while a “friend” had been helping him, the friend did not have “enough time”. Further, the applicant’s evidence was that he did not receive the Court Book until 4 December 2009. But, as Mr Reynolds, in my view quite correctly, observed, it was the applicant’s own evidence that he did not receive it until 4 December because the people who “control” his post box did not give it to him until that time. None of this gives confidence to the Court that the applicant faced such difficulties that it is proper for this Court to grant him additional time.
44. I agree with Mr Reynolds that the applicant has not provided through his evidence, nor even in submissions before the Court, any adequate or, it must be said, in some respects, satisfactory explanation for these claimed difficulties and how they have delayed his obtaining the Court Book so that ultimately he could put whatever amended application it is that he wants to put before the Court.
45. But of even greater strength is that there is nothing in the applicant’s evidence, nor indeed in what he has said to the Court in submissions, to show that the granting to him of even three or four extra days for the filing of an amended application, let alone when we would be able to resume this hearing, would serve any useful purpose in terms of the Court ultimately getting from him an amended application that would plead proper legal grounds.
46. The applicant’s own evidence is that he has relied on a friend, that there is no lawyer involved, and that the friend who is going to assist him in providing the amended application is a hospitality student. I cannot see, in the absence of anything else of relevance, that a hospitality student assisting him would produce an amended application that would be relevant to the issues that are before the Court.
47. As I said earlier, the issue before the Court now is not whether the Tribunal made a right decision or a wrong decision, it is whether it made a lawful decision. I am not satisfied on the evidence and the reasons that the applicant advanced in support of his application for an adjournment that any useful document would be provided to the Court, particularly in the period sought by the applicant. For those reasons, I refused the application for an adjournment. The hearing proceeded.

The Applicant’s Submissions before the Court

48. The applicant complained that, at the hearing before the Tribunal, whenever he sought to raise certain points, the Tribunal would quote country information back at him. That this information was taken from media and internet sources, and was “general” information.
49. His explanation was that the situation in India relating to homosexuals was not “uniform”, and that the Tribunal did not focus on his “problems” as they related to any particular place. Further, that it was unsafe for him in India. India was not a democracy, and that religious and ethnic violence was prevalent. That Kerala was his home and his homosexual partner was “dear” to him. That he did go to other places in India and Japan to seek safety. He only came to Australia because he could not live in India.
50. The applicant also asserted that his “mistake” before the Tribunal was not to have brought documentary evidence in support of his claims, because he did not know how important this was to the determination of his claims. He stated that the Tribunal asked him for “evidence” in support of his claims. He could not produce this after he had come to Australia. In any event the situation in India was such that incidents are not reported to police, and that “compromises” are made.
51. The applicant also complained that the Tribunal should have believed him because he was not the type of person who could produce false documentation. He could easily have done this, but chose not to do so.
52. In making the complaints set out above about the Tribunal, the applicant also included the delegate, and the process before the delegate.
53. The applicant also complained that at the hearing with the Tribunal the interpreter provided was not experienced and did not convey adequate meaning. In part this may have been put in support of the application for an adjournment because the applicant said he would listen to the “tapes” (I understood this to be a reference to the compact discs (“CDs”) recording the hearing) to see if there was a problem. Again the applicant’s position appears to be that he has not taken timely action on his own behalf, despite opportunity. Further, that his complaints lacked substance.

Standard of Interpretation

54. The applicant has put no evidence before the Court to support his complaint concerning the interpreter at the hearing with the Tribunal. While the applicant claimed to have the “CDs” there was no explanation as to why he had not listened to them, or caused someone to listen to them, to see if any particularity could be provided to this complaint.
55. No evidence by way of transcript has been put before the Court despite the opportunity available to the applicant provided by orders made at the first court date over two months ago.
56. What is left before the Court is that the applicant is able, on his own assertion, to read and write English (see CB 18). But ultimately the Tribunal’s account of what occurred at the hearing remains unchallenged. In these circumstances it is not open to the Court to speculate or to draw inferences, as to what may otherwise have occurred at the hearing (NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
57. This account reveals nothing to support any difficulty with the interpretation provided at the hearing, let alone that the standard provided was of such a level of inadequacy that the applicant was denied a fair hearing pursuant to s.425 (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507).
58. I note also that the interpreter provided was “NAATI” accredited (CB 142). Nor did the applicant make any complaint to the Tribunal at the hearing or subsequently.
59. In all, therefore, this complaint lacks any evidentiary basis to be properly asserted, let alone made out.

Consideration: Use of Country Information

60. The applicant also complained before the Court that his evidence before the Tribunal was met with quotes, and references to “general” country information which did not relate to all parts of the country.
61. I agree with Mr Reynolds that this complaint misunderstands the Tribunal’s reasons for its decision. The country information to which the applicant apparently refers relates to the situation of homosexuals in India, and laws and attitudes affecting them (see [160] at CB 182 – [171] at CB 191).
62. The Tribunal accepted that male homosexuals in India could face difficulties, and in some circumstances “serious harm amounting to persecution” (see [174] in particular, and [175] – [176] at CB 192).
63. However, what the applicant apparently does not comprehend is that it was the inadequacy of his own evidence before the Tribunal that led it to find he had not been in a homosexual relationship with “any individual” in India. It was the lack of credibility of the applicant’s own evidence that, to a large extent, led the Tribunal to find against him. This included a large number of inconsistencies in his claims and evidence, his evasiveness, and on one occasion “resistance” to providing evidence (see [184] in particular).
64. In part the Tribunal did rely on country information. But it was to highlight the deficiency in the applicant’s evidence. The Tribunal reasoned that an applicant who claimed to be in a homosexual relationship and to have stood for election would be able to avoid giving inconsistent evidence about whether he campaigned to “improve the situation of the gay community” or not. The applicant had given contradictory evidence in this regard ([205]).
65. The Tribunal referred to general country information to highlight the applicant’s significant lack of knowledge on issues about which he would have been expected to have some knowledge. The Tribunal reasoned that the applicant’s “lack of interest in gay rights, manifested in his evident ignorance of issues he claimed as important to him” ([217]) was an important part of its analysis as to the credibility of the applicant’s claims.
66. The use of country information in this regard was, as Mr Reynolds correctly submitted, to enable the Tribunal to identify, and deal with at the hearing, one of the dispositive issues in the case. The applicant’s knowledge of and commitment to the circumstances and situation of homosexuals in India. The applicant’s claim, made at various times, was that he had such a commitment.
67. I also note that the assessment of country information, its use, and the weight to be accorded is a factual matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]).
68. This complaint does not reveal error in the Tribunal’s decision.

Consideration: Corroborative Documentary Evidence

69. The applicant also complains, before he came to Australia, he did not know that he needed to submit documentary evidence to the Tribunal, and therefore did not bring any such documents.
70. This again does not comprehend that the applicant was unsuccessful before the Tribunal largely because of his own evidence. There was no expectation by the Tribunal that he provide documentary evidence to support his claims, though the opportunity was properly given to him to do so in the event that he could have done so.
71. As to the applicant’s claim that he could have provided false documents, but did not do so because he is not that “kind” of person, this is hardly a positive factor that should have swayed the Tribunal to believe his factual account in the face of the many difficulties found with his evidence. Not that there is any evidence that he put this to the Tribunal.

Consideration: the Complaints Generally

72. For the remainder of the applicant’s complaints before the Court, they do not, as Mr Reynolds correctly submitted, rise above a request for this Court to engage in impermissible merits review, and substitute its own findings of fact for those of the Tribunal (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The Tribunal’s findings, particularly those relating to the credit of the applicant’s account of what he said occurred in India, are for the Tribunal to make and were open to it on what was before it.
73. The applicant also directed many of the above complaints to the delegate, and to the process before the delegate, and the delegate’s decision. In short, the delegate’s decision is a “primary decision” as defined in s.476 of the Act. It is reviewable and in fact was reviewed under Part 7 of the Act. As such this Court lacks jurisdiction in relation to the delegate’s decision (s.476(2)(a)).

Grounds in the Application

74. Ground one is a bald assertion that the Tribunal’s decision was affected by jurisdictional error. I cannot agree. The Tribunal’s decision record reveals a thoughtful analysis by the Tribunal of the applicant’s claims. The Tribunal’s reasoning addressed all claims and aspects of those claims as advanced by the applicant and as the circumstances warranted. It was careful and comprehensive, in providing reasons for its adverse findings as to the credit of the applicant’s factual account and his evidence. Findings that were open to it on what was before it.
75. It may be that the applicant has not understood some of the subtlety and balanced consideration in the Tribunal’s reasoning. For example, this is shown in the Tribunal’s treatment of the applicant’s evidence (which he appeared to elsewhere contradict) that he had an interest in gay rights, yet had no knowledge of well known national issues affecting the rights and situation of homosexual men in India. Even there, as set out at [211], the Tribunal considered whether the applicant’s inability to demonstrate any such knowledge may have been reflective of: “... a previously strong, genuine interest that having waned since 1995, when the threat of serious harm intervened and dampened his erstwhile zeal”.
76. Grounds two and three are alternative expressions of the same complaint. They allege a breach of procedural fairness or a breach of natural justice. To the extent that the applicant sought to particularise this complaint at the hearing before the Court, that has been dealt with above.
77. Further, and for the remainder, this is a case to which s.422B(1) of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias). (See Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]; SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83.)
78. In this regard the material before the Court reveals that the Tribunal provided the applicant with a meaningful opportunity pursuant to s.425 of the Act to give his evidence at a hearing. On the only account available to the Court the central determinative issue that disposed of the application, the credibility of the applicant’s factual account and in particular his claimed homosexual relationship in India, was squarely raised at the hearing. In any event the “veracity” of his claims was a factor dispositive of his application before the delegate. (With reference to the Tribunal’s relevant obligations as set out by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515.)
79. No other breach of procedural fairness is apparent on the material before the Court.

Conclusions

80. For the applicant to succeed, the Court would need, at the very least, to discern jurisdictional error on the part of the Tribunal’s decision. The application does not reveal such error on the part of the Tribunal. I cannot otherwise discern jurisdictional error in the Tribunal’s decision. The application is therefore dismissed.

I certify that the preceding 80Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eightyeighty (80) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: D Nestor

Date: 18 December 2009