1. Ms Price submits that the IMR made an error of law in his analysis of s.91R(2)(d) of the Act.
2. Subsections 91R(1) and (2) of the Act provide as follows:
   • (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
     • (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
     • (b) the persecution involves serious harm to the person; and
     • (c) the persecution involves systematic and discriminatory conduct.
   • (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
     • (a) threat to the person's life or liberty;
     • (b) significant physical harassment of the person;
     • (c) significant physical ill-treatment of the person;
     • (d) significant economic hardship that threatens the person's capacity to subsist;
     • (e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
     • (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
3. Ms Price submits in the applicant's Contentions of Fact and Law (para.24 et seq) that the IMR erred in finding that s.91R(2)(d) requires the applicant to demonstrate that their capacity to subsist "would be affected", by significant economic hardship.
4. Ms Price submits that s.91R(2)(d) requires the applicant to demonstrate that his capacity to subsist "is threatened by significant economic hardships" and that the IMR applied the incorrect test of requiring the applicant to demonstrate that his capacity to subsist "would be affected". The IMR did not accept that "the need to take more circuitous and safer routes... would diminish his business to the extent of depriving him of his subsistence" (CB 156 at [14]).
5. Ms Price submits that s.91R(2)(d) requires an applicant to show "significant economic hardship that threatens the person's capacity to subsist", and not hardship that would actually threaten the capacity to subsist. In other words, the applicant need only establish a threat to his capacity to subsist, and not an actual outcome of a reduction in the applicant's capacity to subsist.
6. The Court finds the argument to be without substance. The reasons of the IMR are "not to be construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang v Minster for Immigration and Ethnic Affairs [1996] HCA 6; (1995) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272.2.
7. Section 91R(2) requires an applicant to show significant economic hardship that (actually) threatens the persons capacity to subsist; the distinction is without significance and is virtually the same test as such hardship that "would" affect the persons capacity to subsist. In any event, the test was not crucial, as the finding by the IMR that the applicant would not suffer economic hardship, disposed of the relevance of the remainder of the provision. An error of law has not been established.
8. Ms Price argues under the second part of ground one that the applicant was denied procedural fairness because "he was not given an adequate opportunity to comment on or reply to the findings or the proposed findings of the reviewer... that his capacity to subsist was not threatened, because he could continue this occupation as a taxi driver, either in Jaghori or avoiding (sic "by avoiding") Taliban-controlled roads" (T 24/11/11 p.8, l.45 et seq).
9. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that
   • "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished".

"Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment".

1. The Court refers to the decision in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 per Justice Cowdroy at [16]-[17] as follows:

"In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [86] Kirby J said:

'The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice'".

For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].

1. As decided in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 per curiam at [89]:

"As SZBEL makes clear (at [48]) the RRT is not obliged to provide 'a running commentary upon what it thinks about the evidence that is given'".

1. Ms Price referred to the decision in SZBEL (supra) at [44] as follows:

"The Tribunal did not accord the applicant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review".

1. Ms Price submits that the issues relevant to the findings were not raised "directly" by the IMR (T 24/11/11 p.10, l.3). Ms Price concedes that it was clearly put to the applicant that there is a safe road from Jaghori to Ghazni (T 24/11/11 p.11, l.40).
2. The Court finds that the relevant issues were dealt with by the applicant. The IMR did "not accept the assumption upon which this argument is predicated, namely that the claimant cannot reasonably subsist without using those roads" (CB 155 at [114]). The issue was therefore raised by the applicant. The applicant therefore had opportunity to deal with the issue.
3. Ms Price referred to the decision in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at [30] as follows:
   • "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question".
4. The conclusion of the IMR that the applicant can continue his occupation as a taxi driver is a finding of fact that was open on the known material and was an "obvious and natural appraisal". A breach of the above statement of the law has not been established.
5. Ms Price took the Court to the first respondent's Contentions of Fact and Law filed on 22 November 2011. As to para [35] that the applicant did not raise the claim in relation to travel outside Jaghori until the post hearing submissions by the applicant's then migration agent (CB 122); Ms Price submits that the specific claim was not raised before the post hearing submissions, because the applicant was not aware of the provisions of the statute.
6. However, the applicant was represented by a migration agent, from before the RSA (CB 72), until after the IMRA. The Court refers to SZRPA v Minister for Immigration & Anor [2012] FMCA 91 at [43]:
   • "In the absence of unusually compelling reasons to conclude otherwise, where a claimant is professionally represented, as was the case here, it must be assumed that the claims which the claimant wished to make before an independent merits reviewer were the ones expressly articulated by him and his advisers and that none were left to be inferred. An unrepresented claimant may not know how to articulate a claim and thus some latitude is allowed if a claim is plainly available on the material but has not been expressly advanced. Represented claimants are in a different position and if they have not pursued an issue, then that is their election. In the circumstances, the Reviewer did not err by not considering a claim which had not been made".
7. The Court assumes that the migration agent would have been aware of the "provisions of the statute".

1. Ms Price submits that the IMR failed to consider the applicant's need to travel on Taliban-controlled roads as an Hazara Shi'a Muslim... and as a member of a particular social group; being returnees from the West and failed asylum seekers, which includes a failure to consider the

non-exhaustive definitions of "serious harm" in s.91R(2) of the Act. 2. Ms Price complains about the findings of fact at CB 152 [98], CB 153 [102-103], CB 153 [104] and CB 154 [108]. Those findings were open to the IMR and are not amenable to review. 3. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

"In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal".

1. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
   • "It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible".
2. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
   • "Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors".

"if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510".

1. The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
   • "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
   • The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

There is one limitation, "Wednesbury unreasonableness" (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined".

The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

1. Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 at [31]:
   • "This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal. The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]). Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] 'the want of logic does not, of itself, suffice to constitute an error of law'. No error is established".
2. Ms Price submits that in making the above finding of fact, the IMR made an error of law because "he did not consider the non-exhaustive definition of serious harm in s.91R(2) of the Act, including para (d)". As found above, the IMR considered s.91R(2)(d). Claims under the other paragraphs were not raised specifically. The Court refers to the decision in SZRPA (supra).
3. Ms Price submits that the IMR failed to afford the applicant procedural fairness by failing to take into account relevant information "relating to the applicant's travel outside the Jaghori district, on Taliban-controlled roads, in the course of his occupation as a taxi driver". It has not been established that the applicant put such material before the IMR, that was not taken into account. Court Book 155 at [112] shows that the information as to those matters was considered by the IMR.
4. Ms Price contends that the applicant was not given an adequate opportunity to respond to the finding that the applicant could be expected to live and work exclusively within the district of Jaghori.

"... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision": SZBEL (supra).

1. Ms Price submits that the IMR did not put adverse country information to the applicant; failed to take into account relevant country information and reached his conclusion on an illogical basis.
2. Ms Price submits that the bulk of country information relied on by the IMR "supported the opposite conclusion" to that reached by the IMRA, which should have found that the applicant faces a real chance of persecution by reason of being an Hazara.
3. The finding of fact by the IMR was open on the material before him and it not amendable to review NAHI (supra), Chen Xin He (supra) and SZINP (supra). This ground is no more an impermissible attack on the factual findings of the IMR. The challenge is no more that an invitation to review the merits. The authorities make it clear that the making of findings of fact is uniquely a matter for the decision maker.
   1. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said at [16]:
      • "I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
        • "A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal".
4. Bennett J summarised a number of relevant authorities in SZBCE (supra) to which the Court refers again.
5. Ms Price contends that the IMR reached his conclusion, that there was not a real chance that the applicant would face persecution by reason of being an Hazara, on an illogical basis. It is said to be illogical because the Department of Foreign Affairs and Trade ("DFAT") advice and the United Nations High Commission for Refugees ("UNHCR"), do not support such a conclusion. If that is so, (and for the Court to decide that issue would be to review the merits which it must not do), it would be an error of fact within jurisdiction for the reasons that follow.
   1. The Court refers to the decision of Collier J in SZINP (supra) that:
      • "Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors".

"if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510".

1. A wrong finding of fact is not a jurisdictional error. Quin (supra) at 35-36 per Brennan J.
2. A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [9].
3. It was held in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83] that:

"A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant's claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims".

1. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the IMR. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision maker. In SHJB (supra), the Full Court at [12] quoted a passage from the decision of Selway J in SHJB at first instance as set out above.
2. The Court refers again to the summary of relevant authorities by Bennett J in SZBCE (supra)
3. The conclusion reached in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265, per Allsop J at [11] was:
   • "The notice of contention, in ground 1, sought to place another characterisation upon this part of the reasoning of the Tribunal. It sought to charaterise it as displaying sufficient irrationality for the decision to be set aside by reference to what was said in Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59. ...What is plain, though, is that the demonstrating of one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task as to call in aid, for instance, at best, what Gleeson CJ said in Applicant S20. In such cases, all one has really done, at best, is demonstrate how an error of fact came to me be made. Generally, such errors will be within jurisdiction. All that the Tribunal was doing at this point in its reasons was explaining why it found the respondent's version of what happened unpersuasive".
4. In WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, Nicholson J said at [37]:
   • "The appellant also relied on the contention that the Tribunal's finding in the core paragraph was 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds'...I accept the submission of the respondents that a body of the Federal Court authority has made it clear that, notwithstanding the decision of the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S 20/2002 [2003] HCA 30; (2003) 198 ALR 59, want of logic, or rationality, does not of itself suffice to constitute error of law, still less error of law which is jurisdictional: NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 and VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA at [76]-[79]".
5. In MZXSA (supra) the Full Court decided at [42] - [43] that:

"It is not in doubt that a decision made by the Tribunal may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 67 [36]- [37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 20 [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [130]- [139].

This basis for the finding of jurisdictional error was most recently considered by the High Court in SZMDS. In that case, the High Court (Heydon, Crennan and Bell JJ, Gummow ACJ and Kiefel J dissenting) allowed an appeal from this Court which had set aside a decision of the Tribunal on the basis that it was illogical or irrational. Heydon J concluded that the Tribunal's reasoning was not illogical. Crennan and Bell JJ, in a joint judgment, held (at [135]) that, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal. On that basis their Honours held that the appeal should be allowed, although accepting (at [132]) that illogically or irrationality may constitute a basis for judicial review in the context of jurisdictional fact-finding. The essence of their Honours' reasoning was that a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker. In this discourse the differences between the separate notions of "logical" reasoning and "rational" reasoning, and the constraints that each separately might impose on jurisdictional fact-finding, were not discussed by their Honours".

1. The Court notes the decisions of the High Court that a Tribunal such as the Refugee Review Tribunal ("RRT"), does not commit an error of law merely because it adopts unsound or questionable reasoning Eshetu, Bond (supra). The Court is bound to apply those decisions to the IMRA.
2. In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14 the High Court decided at [88]:
   • "One of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. For the purposes of the Minister considering the exercise of power under s 46A, what the RSA Manual and the IMR Manual both referred to as "Australian legislation and relevant case law" had, therefore, to be treated as binding upon those who made the assessments and those who reviewed those assessments, not just as 'aid[s] to the interpretation of the Refugees Convention'".
3. Raphael FM referred to authorities on when an error of law is a jurisdictional error, in SZQGA v Minister for Immigration & Anor [2011] FMCA 672 at [14] as follows:
   • The seminal Australian case on jurisdictional error is Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 in which Brennan, Deane, Toohey, Gaudron and McHugh JJ signalled that the drawing of the distinction between errors of jurisdiction and errors within jurisdiction was not always self-evident (at 177-178) and gave the following list of errors constituting jurisdictional errors (at 179):
     • "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it".
   • Justice Hayne clarified the principle in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, in which his honour opined (at [163]):
     • "In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This court has not accepted that this distinction should be discarded. As was noted in Craig v South Australia, that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not".
   • The High Court further elucidated the question of jurisdictional error in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 by stating that the list in Craig was non-exhaustive and opining (at 351) that:
     • "What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it". [emphasis added]
   • In that case it had been argued that the Refugee Review Tribunal had made no finding about one of the incidents the applicant had claimed was a reason for her fear of persecution. The High Court found (at 353) that:
     • "For the reasons given earlier, even if it were said that [incident] occurred in the manner, and with the consequences, described by Ms Yusuf was a material question of fact, a failure to make a finding about it would not amount to a breach of s 430, for the [incident] was not material to the decision the Tribunal actually made. Nor, in the particular circumstances of this case, does any failure by the Tribunal to make a finding about this matter in its s 430 statement reveal any error of law by the Tribunal or any failure to take account of a relevant consideration".
   • Likewise, in the instant case even if the Reviewer did misunderstand the applicant, such a misunderstanding was not, in the circumstances, sufficient to affect the exercise of power.
4. The decisions in Ex parte Aala and Yusuf are later authorities on what constitutes jurisdictional area; the Court applies those decisions. The error alleged by Ms Price is not a "jurisdictional error".

1. Ms Price alleges that the IMR was biased because the IMR had "prematurely made up his mind."
2. To establish bias the applicant would have to show that the Tribunal "acted dishonestly or arbitrarily or capriciously": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59]. The same applies to the IMR.
3. In order to make out a case of actual bias on a decision maker's part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision maker had made up his or her mind and was incapable of being persuaded differently; see e.g., Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia) at 531 per 531 per Gleeson CJ and Gummow J.

A party alleging bias carries a heavy onus. The allegation must be "distinctly made and clearly proved" see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision maker's reasons for decision.

1. The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:

"Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion".

1. Further, the fact that the RRT (and here the IMR) did not believe the applicant's claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.
2. Ms Price submits that the IMR "had concluded at the outset that Hazara, Shi'a or Hazara-Shi'a do not face a real chance of persecution if returned to the Jaghori district of Afghanistan". That claim has not been established.
3. Ms Price submits that the IMR was biased for disregarding country information which supports the applicant's claim.
4. "There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that". NAHI (supra) [11].
5. "Both the choice and the assessment of the weight of" country information is a matter for the RRT_. "The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal"._ (NAHI [13])

"The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item". (NAHI [14])

"The Tribunal does not commit jurisdictional error when it prefers one body of country information over another".

NAHI (supra) and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26]. The Court applies those principles to the IMR.

1. A decision maker must take into account the most current information available to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 44-45. A failure to act upon the most current information available is a denial of natural justice: SZJTQ v Minister for Immigration and Citizenship [2008] FCA 138 at [32]- [33]. However the Court finds that there is no principle that a failure to refer to the most recent country information is necessarily a legal error. As decided in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 (FC) at [41], such information may be from a less reliable source than older information.
2. The IMR examined country information in detail (CB 137-149) and had regard to the country information referred to by the applicant's migration agent (CB 149 [76]). The IMR therefore, did not ignore country information that supports the applicant's claims.
3. Ms Price submits that bias is evident as the IMR "demonstrates incredulity towards, or unnecessary criticism of, the claims made by the applicant": Ms Price refers for example to the IMR dismissing the applicant's claim that his brother was taken and killed by the Taliban.
4. The IMR merely stated at CB 134 [16]:
   • "I observed that if no-one knew the circumstances of Mohammad's disappearance then the claim that he had been taken by the Taliban was just speculation".

That finding does not show bias - it is a statement that there is nothing to show what happened to Mohammad. The reasoning of the IMR is expanded at CB 149 [74].

"In relation to his brother, Mohammad's disappearance, as indicated at the interview I had difficulty accepting the assertion that he had been killed or taken by the Taliban in light of the lack of information about the incident and the motivation of the claimed assailants. He told me that the basis of his belief that Mohammad was taken by the Taliban was that the family of some of Mohammad's friends (who had also been taken by the Taliban) told him that is what had happened. When pressed on how they knew it was the Taliban he simply stated that it was clear that the Taliban were responsible. I asked the claimant if there were any witnesses and if his brother's body was recovered. He stated that there were no witnesses and the body was not recovered. He stated that the Taliban take people for front line fighting or kill them. Whilst cognisant that it is unreasonable to expect corroboration of incidents that are claimed to have occurred. I am not prepared to accept that Mohammad was taken by the Taliban. Having regard to the highly dangerous and volatile environment in Afghanistan and the claimant's inability to contextualise why his brother may have been targeted, there are a number of possible explanations for Mohammad's disappearance. Whilst I am prepared to accept that Mohammad has disappeared, given the applicant's vague testimony and the security situation in Afghanistan I am not prepared to accept that this incident was other than misadventure or a random act of violence".

1. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

"The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances".

1. Ms Price complains about the IMR asking the applicant repeatedly why he did not lie about the whereabouts of his younger brother in order to protect him (CB 134 [18])? That passage does not show bias
2. Ms Price referred to the following passage at CB 135 [23]:
   • "I suggested that the Taliban could not have been too serious about speaking with Nematullah because they could have tracked him down in the 17 months since the incident happened in November 2009".

1. Ms Price referred to the IMR being critical of the applicant's supposed failure to mention in his entry interview that there were passengers in his vehicle in the November 2009 incident, when in fact the applicant stated in his entry interview that a passenger was robbed and taken by the Taliban (CB 149 [75]). That oversight does not establish bias
2. The fact that the IMR expressed criticisms about other aspects of the November 2009 incident does not show bias; it shows an assessment of what was being put to the IMR.
3. As stated by the Federal Court of Australia in Lee (supra) at [27]:

"The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances".

1. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [7]: "A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out".
2. Ms Price referred to other passages in the transcript of the IMR interview on 18 April 2011 (Annexure 'A' to the Affidavit of Ajsela Slskovic affirmed 2 December 2011). The main one is at p.30, l.5 and the observation that the information about the disappearance of his brother is "nebulous". "Nebulous" means indistinct or cloudy (Shorter Oxford Dictionary). That paragraph does not show bias; it is merely a comment about the evidence.
3. Ms Price referred to p.28, l.32 which is no more than the IMR questioning the claim of persecution.

1. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
   • "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge (IMR) might not bring an impartial mind to the resolution of the question to be decided".

Here, there is nothing to show that a "fair minded lay observer might reasonably apprehend that the judge (IMR) might not bring an impartial mind to the resolution of the question to be decided". Bias has not been established.

1. The Court refers again to the passage in SCAA (supra) at [38]:
2. Further, the fact that the RRT did not believe his claims is not evidence of bias: SBAN (supra), VFAB (supra). That principle applies also to the IMR.
3. Ms Price referred to SZQHH v Minister for Immigration & Anor [2011] FMCA 740 where Driver FM applied the decision in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 as to the possibility (real and not remote) of a lack of impartiality. The Court does not find that the circumstances here would raise in the mind of a fair minded lay observer a real possibility of a lack of impartiality. There is no evidence of an apparently inflexible or mechanical approach by the IMR.
4. Ms Price referred to T 18/04/11 p.31, l.1, which contains comments by the IMR about the lack of evidence. That comment does not establish bias or a reason for an apprehension of bias.
5. Ms Price referred to T 18/04/11 p.31, l.34, where the IMR states that he was not accusing the applicant of being dishonest, and that the death of his brother must have been painful, and that it was difficult to decide if there was a real chance of persecution. That does not show bias.
6. Ms Price referred to T 18/04/11 p.31, l.46, about whether the IMR could attach any weight to the submissions that the applicant's brother was killed by the Taliban, because there are no witnesses and it is purely speculation. The IMR then asked the applicant if there was "anything else you would like to tell me about your brother's death" (Ibid p.32, l.7). Those comments do not establish bias.
7. Ms Price referred to T 18/04/11 p.14, l.1, about whether the applicant could have lied about where his younger brother was, so that the Taliban could not find him. Ms Price submits that the questioning was unnecessary. The statements do not show bias.
8. Ms Price referred to T18/04/11 p.18, where the IMR suggests that events show that the Taliban were not taking it seriously to locate the applicant's younger brother because he was studying English. That does not show bias.
9. The Court finds that none of the passages referred to, either individually or collectively, establish bias or reason for an apprehension of bias.
10. Ms Price then submitted that the IMR relied on country information to show that Hazara Shi'as are not at risk in Jaghori (Transcript 1 February 2012 "T 1/2/12" p.30, l.42). There is nothing to support that contention. The IMR considered extensive country information (CB 137-148) and chose what he considered relevant. There is no principle that a failure to refer to the most recent country information is a legal error as such information may be less reliable VTAG (supra). The Court cannot substitute its own view of the material even if it reached a different view from that of the IMR (NAHI supra at [13]). The IMR was not obliged to comment on every item of material before him, to the extent of saying why he rejected it (NAHI supra at [14]).
11. The claims of actual or apprehended bias are dismissed.

1. Mr Brown submits that it was open to the IMR to find as a fact that the applicant could earn a living either as a taxi driver, or a farmer (or both) and he would therefore not suffer significant economic hardship that would threaten his capacity to subsist (CB 156 [114] and [115]).
2. The Court agrees and holds that this finding by the IMR includes a finding that the applicant's capacity to subsist was not threatened [s.91R(2)(d)].
3. Mr Brown submits that the applicant was not denied procedural fairness by the IMR not providing him with an opportunity to respond to the issue of him being able to subsist, because the claim was not put until after the hearing. The Court has found that the applicant had raised the issue and was given an opportunity to respond, as the IMR did "not accept the assumption upon which this argument is predicated" (CB 156 [114]). The applicant had therefore put the argument that he cannot reasonably subsist without using particular roads. The IMR reached the conclusion on the basis of information supplied by the applicant that his family owned a lot of land and were totally self sufficient for their food (CB 134 [14]) and that he also worked as a taxi driver and had no problem driving a taxi within Jaghori (CB 134 [17]). In reaching his conclusion, the IMR relied on and accepted the information provided by the applicant - there was therefore no need to put this information to the applicant for comment.
4. Mr Brown submits that as the IMR accepted that the applicant may face a real chance of persecution on Taliban-controlled roads on account of his imputed political opinions (CB 155 [114]), it was unnecessary for the IMR to consider whether the applicant would be at risk of serious harm when travelling on Taliban-controlled roads as an Hazara, Shi'a or Hazara Shi'a or as a member of a particular social group of returnees from the West, or of failed asylum seekers (Refer applicant's Contentions at [35]). The Court agrees.
5. Mr Brown submits as to paras [36] - [41] of the applicant's Contentions that the IMR found that the applicant would not have a well founded fear of persecution on return to his home district of Jaghori. Those findings of fact were open to the IMR and are not amenable to review SZINP (supra). The Court accepts that protection is not available under the Convention where a person can return to the place from which they have fled without a well founded fear of persecution (first respondent's Contentions [44]).
6. The Court accepts Mr Brown's submissions that:
   • 46. The Applicant contends that the Reviewer failed to take into account relevant information, namely his need to travel outside the Jaghori district on Taliban-controlled roads as part of his taxi driver occupation, and for other reasons unconnected with his occupation.
   • 47. The Reviewer clearly did consider the implications for the Applicant of travelling outside the Jaghori district on Taliban-controlled roads, and noted that the most frequently used road between Ghazni and Jaghori was considered secure (CB para 54 at p 145), before finding that not all the roads were dangerous (CB para 114 at p 156). The Reviewer accepted that in only using more circuitous but safer routes the Applicant's business as a taxi driver would diminish, but found that this would not occur to the extent that he would lose his (means of) subsistence; he could drive his taxi within the Jaghori district, and he could farm his family's land.
   • 48. The Reviewer did not proceed on the assumption that the Applicant would not need to leave Jaghori for reasons unconnected to taxi driving. He noted that the route via Nawur was considered secure, which would allow the Applicant to travel to Ghazni should he need to do so (CB 145 [54]).
   • 49. The Reviewer did not proceed on the basis that the Applicant should live and work exclusively in Jaghori. He considered whether the Applicant could return to his home district without a well founded dear of persecution, noting that some reports claimed that Hazaras made up 100% of the Jaghori population, that the dominant political force in Jaghori was a Hazara-dominated party with control over militia that were powerful enough to have withstood Taliban infiltration (CB paras 96 and 97 at p 152).
7. The Court accepts the submission by Mr Brown as to country information, that all the IMR need disclose to an applicant is the "substance" of that information, being "those aspects... known to the reviewer which the reviewer considered may bear upon the claims...": Plaintiff M61/2010E and Plaintiff M69 of 2010 (supra) at [91].
8. The substance of country information was put to the applicant (CB 135 [27] - 137 [33]). The applicant's migration agent requested time to lodge written submissions. Time was granted, and on 16 May 2011 written submissions were received from the migration agent (CB 137). Those submissions made extensive comments on country information (CB 137 [36] - 148 [72]). They referred to a Presentation Summary by Ms Kazem (CB 124.5). The submissions were considered by the IMR (CB 158 [128-129].
9. Mr Brown submits that the substance of the UK Home Office Report was put to the applicant during "the interview at 2 hours, 41 minutes, 16 seconds of the recording". The Court has the transcript of the interview but not the recording, and is unable to check that reference. As the submission was not challenged, the Court is willing to accept the signed statement of Mr Brown that the IMR put to the applicant:
   • There's a report by the UK Home Office about deportees/returnees from Western European countries, and that was the report that indicated that they were at risk because of a perception that they had money and other valuables, not because of their political associations or because of any imputed political opinion.
10. The Court accepts the following submissions by Mr Brown:
    • 55. The Applicant contends at para 52 of his contentions that the Reviewer erred because he failed to have regard to written information supplied by the Applicant and oral submissions of the Applicant's agent, concerning the risk of being persecuted by reason of being Hazara, Shi'a, or Hazara-Shi'a (which consistent (sic "consists") primarily of extracts from and summaries of country information). It appears that this error is said to involve a denial of procedural fairness, although it is pleaded as a failure to take account of relevant material.
    • 56. While a failure to consider one of the bases upon which a person claims to fear persecution has been held to be a jurisdictional error,[1] there is no basis for the Applicant's submission that a failure to consider written information or oral submissions involves an error of the same kind. The Courts have long recognised a distinction between failure to consider a claim, and failure to consider evidence in support of a claim. Thus, as the Full Federal Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs.[2]
      • It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason....
      • The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
    • 57. The written submissions of the Applicant simply provided information in relation to the Applicant's claims (generic in the two pre-hearing submissions, and more specific in the post-hearing submissions). There was no failure to address the claims made by the Applicant, and while the Reviewer was not required to refer expressly to the Applicant's submissions when making his recommendation, he did so at paras 119 to 129 of his report (sic "assessment") (CB pp 157/8). It is for the Reviewer to determine what material to accept or reject, and to give such weight to the material as he sees fit; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

1. Mr Brown submits that if s.91R(2)(d) was misconstrued by the IMR, that is not an error of law, because the IMR in fact considered whether the applicant would suffer significant economic hardships and whether his capacity to subsist would be affected. The Court notes that the IMR found that the applicant would not suffer significant economic hardship (CB 156, l.7 and [115]) and therefore whether such non existent hardship threatened or actually affected his capacity to subsist was not required to be decided under s.91R(2)(d).
2. Mr Brown submits that the IMR took into account the applicant's ability to drive his taxi within Jaghori, and his reduced capacity to drive it outside Jaghori, in reaching his decision that the applicant would not suffer significant economic hardship as a consequence of restrictions on driving his taxi (CB 156 [114] and [115]). The Court accepts that submission.
3. As to ground two, Mr Brown referred to [114] of the IMRA where the IMR found that "Not all roads are dangerous" and that not all roads in and out of Jaghori are dominated by the Taliban. Mr Brown submits, and the Court accepts, that this finding dealt with the applicant's claim of needing to be able to travel in and out of Jaghori other than for taxi driving purposes.
4. As to ground three, Mr Brown submits that the IMR "tried very hard to put the gist of country information to the applicant for comment". That is so (CB 135 [27], 136 [27] to [32]).
5. As to bias, Mr Brown submits that the comment about the claims being "nebulous" was towards to end of the interview (T 18/04/11 p.29, l.35) and that the IMR attempted to explain to the applicant why he had made the comments about the lack of proof about his brother having gone missing and about the claims being nebulous and rhetorical. The Court finds that this shows a fair approach by the IMR.

1. Ms Price submits that the claim about significant economic hardship was raised, as early as the entry interview. She was unable to indentify anywhere where the precise claim had been made (T 1/02/12 p.56, l.33 and T 1/02/12 p.60, l.3). The Court finds that the IMR having found that the applicant would not suffer significant economic hardship, the argument about the second step in s.91R(2)(d) is not relevant.
2. Ms Price submits that even if the claim of significant economic hardship was not put until the post hearing submissions, the IMR should have reconvened the hearing. The Court finds that issues around the concept were explored adequately with the applicant during the hearing, and that a further hearing was not necessary.
3. Ms Price submits that a further hearing should have been convened for the applicant to respond to concerns the reviewer had with the claim.
4. In SZBEL (supra) at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that
   • "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished".

"Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment".

1. The Court refers to the decision in SZGQZ (supra) per Justice Cowdroy at [16]-[17] as follows:

"In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [86] Kirby J said:

'The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice'".

For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].

"The Court is satisfied that the Tribunal's determination of the credibility of the appellant and the truthfulness of his claims comprise obvious and natural appraisals of the material and evidence presented to it. Further the Tribunal's findings based on country information were open to it and there is no obligation to provide the appellant with such material. Accordingly no error of the Tribunal nor of Turner FM exists, and this ground of appeal is dismissed".

1. As decided in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 per curiam at [89]:

"As SZBEL makes clear (at [48]) the RRT is not obliged to provide 'a running commentary upon what it thinks about the evidence that is given'".

1. Ms Price submitted that the comments about claims being nebulous and rhetorical were put in an impatient tone. Mr Brown conceded that the comments were made in an exasperated tone. Ms Price accepted that description. The Court views that tone, which was used in the context of where the IMR is stating that there is no evidence and it is a difficult decision. The Court does not find that the tone used establishes bias.

1. Ground one is not established and is dismissed.
2. Ground two is not established and is dismissed.
3. Ground three is not established and is dismissed.
4. Ground four is not established and is dismissed.
5. As decided in Alami v Minister for Immigration & Citizenship [2011] FMCA 623 IMR Reports and recommendations are privative clause decisions under s.474.
6. The Court finds that the IMR's decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
7. The application for judicial review is dismissed.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of F. Turner FM

[1] Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14 at 36 [90]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] and [95].

[2] (2003) 75 ALD 630. See also Paul v Minister for Immigration and Multicultural and Indigenous Afairs [2001] FCA 1196; (2001) 113 FCR 396, 422-423 [79]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, [42].