SZJXB v Minister for Immigration & Citizenship [2008] FCA 738

FEDERAL COURT OF AUSTRALIA

SZJXB v Minister for Immigration & Citizenship [2008] FCA 738 MIGRATION – consideration of whether a Federal Magistrate fell into error by failing to find jurisdictional error on the part of the Refugee Review Tribunal and whether the Tribunal constructively failed to exercise its review jurisdiction

Migration Act 1958 (Cth) Migration Amendment (Review Provisions) Act 2007 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZJXB v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD172 OF 2008

GREENWOOD J

15 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD172 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJXB

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GREENWOOD J DATE OF ORDER: 15 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant shall pay the first respondent's costs of and incidental to the appeal to be taxed or agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD172 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJXB

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GREENWOOD J

DATE: 15 MAY 2008

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 This is an appeal from a decision of Lloyd‑Jones FM made on 22 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 28 November 2006, affirming the decision of the delegate of the Minister for Immigration and Citizenship on 18 August 2006 to refuse the appellant a Protection Visa. The central matter is that the appellant is a male citizen of Bangladesh who claims to fear persecution and thus a well-founded fear of persecution for a Convention reason because he was and is a homosexual. Thus, the appellant contends that he is the subject of persecution by reason of his membership of a social class. 2 The Tribunal referred to country information in relation to discrimination but ultimately the Tribunal did not accept that the appellant personally was a homosexual, for a number of reasons described by the Tribunal and I will turn to those in more detail in a moment. The appellant sought judicial review of the decision of the Tribunal by an application filed in the Federal Magistrates Court which ultimately, after the invoking of unrepresented parties' procedures, resulted in an amended application filed on 7 May 2007. That application recited a number of grounds exhaustively reviewed by Lloyd‑Jones FM and I will turn to those matters shortly. 3 The appellant challenges the decision of the Federal Magistrates Court by a Notice of Appeal filed on 13 February 2008 and in that appeal the appellant relies upon three grounds which are prefaced by an introductory statement which contains a number of assertions which for present purposes I will treat as grounds. In the Notice of Appeal at AB39, the appellant contends that the primary judge committed an error of law in dismissing the application before him in failing to recognise jurisdictional error on the part of the Tribunal arising out of an incorrect interpretation of the applicable law to the facts. 4 The second proposition in the introductory paragraph is that the primary judge fell into error by not recognising that the Tribunal decision involved an improper exercise of the power conferred by the Migration Act 1958 (Cth) and the regulations under that Act. The third contended error of the primary judge is that there was no evidence or other material to justify the making of the decision. Each of these matters seem to be omnibus statements of position at a reasonably high level of abstraction and none of these assertions are supported by any particulars, unless the proper construction of the Notice of Appeal is that grounds 1, 2, 3 and 4 are said to be the expression of those propositions. 5 The first formal ground of appeal is that the Tribunal "constructively failed to exercise its jurisdiction under the Act, in that it failed to follow proper procedures as required by the Act". It is said by the appellant that the Tribunal did not observe the processes required by the Act. The second ground is that the delegate of the Minister fell into jurisdictional error by approaching factual matters concerning the division of homosexuals into particular groups in a particular way, that is to say, discreet and non-discreet groups. The third ground is that the Tribunal did not consider the prevailing situation in Bangladesh concerning the treatment of homosexuals and the eligibility of homosexuals to refugee status based upon persecution as a member of a particular social group. 6 The fourth ground of appeal is that by reason of the recent direction made under 353A and s 420A of the Migration Act by which guidance is given to decision makers in the conduct of hearings, the Tribunal failed to comply with the guidance document. The most immediate difficulty with ground 4, of course, is that the guidance document is one relating to the implementation of the Migration Amendment (Review Provisions) Act 2007 which on its face applies to applications made, relevantly in this case, to the Tribunal on or after 29 June 2007, whereas of course, the application to the Tribunal in respect of the delegate's rejection of the applicant's application was made on 4 September 2006 and received at the Tribunal on 5 September 2006. Thus, the guidance instrument does not apply to the conduct of proceedings. 7 In any event, it should be noted, of course, that the guidance document seeks to express a number of principles which are relevantly captured by the legislation in terms of the requirement to conduct hearings in a fair way. I will return to that in a moment. This morning, the appellant, who is unrepresented but assisted by an interpreter, has made a number of submissions about ground 1 of the notice of appeal at my invitation. I sought further information from the appellant as to the precise complaint made about the Tribunal's conduct of the hearing and the failure to afford proper procedures. The particular complaint is that the hearing was a long hearing. 8 The appellant was suffering some degree of mental stress about matters and during the course of the hearing the Tribunal pressed the appellant repetitively, it is said, about a particular question. That question went to the circumstances in which the appellant's relationship with his partner was initially discovered which goes to a factual controversy as to whether or not a particular act of sexual engagement was discovered by the appellant's uncle at the appellant's house or whether the engagement act was discovered by the appellant's partner's father at the appellant's partner's father's house. 9 The second matter went to questions addressed by the Tribunal to the appellant about the circumstances and activities of the appellant's brother. By way of initial observations, of course, it should be noted that the question of the scope and nature of the relationship between the appellant's partner and the circumstances in which the homosexual relationship was discovered were central factual matters of debate before the Tribunal and central to the appellant's application for a Protection Visa, as it reflected upon the dislocation within the appellant's family and the appellant's partner's family, thus resulting in harassment and persecution because of the socially unacceptable nature of that relationship having regard to central religious beliefs about such relationships. 10 Because the appellant relies upon the dislocation of the two families and the consequential harassment by members of those families, the approach and conduct of the appellant's brother to the appellant, and for that matter to the appellant's partner, was something naturally within the factual matrix to be considered by the Tribunal in the exercise of its fact finding analysis. The appellant, as I have indicated, is unrepresented and has no written submissions and has not been able to formulate any structured oral observations in support of the grounds. It seems to me, therefore, that the underlying obligation of the court, notwithstanding the inadequacy of those matters, is to test whether there is, in fact, any appealable error which, in the interests of justice, ought to be identified rather than overlooked if it subsists any discernable error ought not be overlooked simply by reason of the fact that the appellant is not capable of either identifying or articulating the nature of that error. 11 The central matter seems to me having reviewed all of these papers closely to be that the appellant contends the Tribunal did not properly have regard to all of the circumstances the appellant put to the Tribunal and did not examine closely the basis for persecution by reason of the homosexual relationship and did not examine closely the prevailing circumstances within Bangladesh as to such relationships. I should say at the outset that having closely reviewed the reasons of Lloyd‑Jones FM, I am not satisfied that there is any error on the part of the Federal Magistrate in the analysis of the various matters which his Honour framed in responding to and dealing with each of the grounds of review in the amended application before the court below, filed on 7 May and contained in the Appeal Book, pp 11, 12, 13 and 14 particularly. 12 Having said that it seems to me to be important to reflect briefly what was put to the Tribunal and the way the Tribunal dealt with those matters, simply for the purpose of informing whether there is any error on the part of the Federal Magistrate in the court below. As to that matter, the Appeal Book contains a letter lodged with the Department by the appellant's representative, that is, the migration agent, on 5 June 2006, which contains a statement of certain matters. It also contains a statement by the appellant. I should mention briefly some of these things. 13 The appellant said that he is a national of Bangladesh by birth, and from early times adopted a homosexual lifestyle. 14 He arrived in Australia on 27 April 2006, he says, to escape persecution in Bangladesh where he had been facing serious mistreatment, hatred and discrimination, including life threats for the practice of his homosexual lifestyle. He says that when studying at the Kazi Zafir High School, he developed a relationship with a high school colleague, which ultimately translated in to a homosexual relationship. The appellant points out that such relationships are forbidden and against the law in Bangladesh which is predominantly a Muslim country. He says that the penalty for such an offence is either life imprisonment or being stoned to death. 15 He says that unfortunately his uncle caught him with his high school college "red‑handed while having sex in our house and instantly beaten us badly and also spoken to our parents and other members of our family about our relationship." He says that the revelation of the relationship resulted in harassment, hatred and boycott activity by his parents and from the family of his partner. The appellant says that he was under pressure to end the relationship but when his father found out that he was maintaining a relationship, close family members planned together to organise a marriage with a girl of their choice to try and drive the appellant away from his predisposition with his partner. 16 The statement goes on to talk about aspects of that inter‑family activity and the efforts to discourage the appellant from engaging in the relationship. The statement talks about his realisation that he had a brother in Saipan, who had been living there for many years and it might be sensible for the appellant and his partner to go to Saipan. Saipan, I should say is the capital of the United States Commonwealth of Northern Mariana Islands in the Pacific Ocean. Some discontent arose out of applications for visas and when it became apparent that the appellant was seeking two visas, both for himself and his partner, it became very difficult indeed and the appellant's brother was instructed to obtain a single visa for the appellant only. 17 The appellant's brother organised a visa which was granted in February 1997 and the appellant left Bangladesh in March 1997 thus breaking in a sense the relationship with the former partner. Events took an unfortunate and distressing course in 1998 when the appellant discovered that the appellant's former partner had taken his own life. The appellant in Saipan established a relationship with a Phillippino man and after the appellant's partner's death in Bangladesh the appellant established a close relationship with that man. The appellant arrived in Australia on 27 April 2006. He says in his statement that he could not feel safe in his family home in Bangladesh. He says that by reason of his partner taking his own life, his partner's family members were extremely distressed and threatened to kill him in 'vindication of their son's death', as he puts it in his statement. 18 He says that he simply had to leave Bangladesh and remained in a hotel in Dhaka and then return to Saipan and has not been to Bangladesh since. Those matters were put to the Minister's delegate in support of the application and on 18 August 2006 the delegate of the Minister wrote a letter to the appellant advising that the application had been rejected as the delegate was not satisfied that Australia owed protection obligations to the appellant in the circumstances. The appellant on 4 September 2006 wrote a letter through a migration agent to the Tribunal in support of his review application. That submission is set out at AB115 to AB119. 19 On 18 September 2006 the Tribunal wrote to the appellant advising that a hearing would be conducted on 24 October 2006 and the appellant indicated that he would attend that hearing, as he did, supported by a migration agent. On 26 October 2006 the Tribunal wrote a letter to the appellant putting to the appellant some matters upon which the appellant might comment as those matters might form part of the reason for the Tribunal's decision. The Tribunal put its inquiry in these terms: You gave oral evidence to the Tribunal about the circumstances in which your sexual relationship with (your partner) was discovered by family members. That evidence was very different to the evidence you gave in writing to the Department about those circumstances. At the hearing you said that in 1992 (your partner) invited you to visit him because his family members were out, and you did, and variously his family, or his father, arrived unexpectedly and caught you having sexual intercourse. However in your statement to the Department you wrote that it was your own uncle who caught you. That this was at your family home and that your uncle told the family about it, making them aware of it for the first time. This inconsistency is relevant to your application because it casts doubt on the plausibility of your claim to have been discovered in this situation at all. And so casts doubt on your claim to fear an ex‑partner's family. Further the Tribunal could infer, from this inconsistency, which relates to the key incident from which you claim all your subsequent problems flowed, that your claims are not generally credible. 20 The appellant responded to that letter on 31 October 2006 through the appellant's migration agent and proffered some explanation, which sought to resolve the inconsistency and the response was in these terms: I acknowledge the receipt of the (letter) of 26 October 2006 with respect to the applicant's requirement of explanation of the statement that he made during the RRT hearing on 24 October 2006 in relation to the sexual intercourse incident, whether took place in the family home of the applicant, or in the family home of his sexual partner. And also whether the incident was discovered by the applicant's uncle, or by the applicant's partner's father in their family home some time in the year 1992. Please find the enclosed self‑declared statement written and signed by the applicant in his own handwriting, in the form of an affidavit in this respect, in which he explained where the sexual intercourse incident between the applicant and his partner has taken place, and how it was discovered. 21 The applicant's agent then sought to explain the position in these terms: The applicant confirmed by way of signing the affidavit that he made an error in his statement at the time of the RRT hearing on 24 October 2006 that the sexual intercourse incident had taken place in the family home of his former partner and also that incident was discovered by his partner's father. Whereas actually, the sexual intercourse between the applicant and his partner took place in the applicant's house and was discovered by the applicant's uncle and ever since the relationship secrecy with his partner was disclosed and also the applicant confirmed that similar statement was previously given to the Department of Immigration by the applicant at the time of lodging his protection visa application. However, the applicant also apologised for giving his contradictory statement to the RRT hearing on this particular incident, although that particular incident took place around 12 years ago. Besides, I submit, apart from the oral submission that I have made during the hearing on 24 October 2006 that it was a matter of getting mixed up with information of a particular incident that was taken place 12 years ago and therefore I would like to urge the honourable RRT to take a lenient view of this particular error of statement. 22 The letter goes on to say: I further would like to submit that the applicant's former partner had to commit suicide being severely discriminated and persecuted. 23 So that material represented the explanation. The reasons of the Tribunal are contained in the Appeal Book a pp 155 to 171. In the course of the reasons, the Tribunal explains the background claims, the appearance of the appellant assisted by his migration agent and an interpreter before the Tribunal on 24 October 2006 and then sets out the process of questioning in relation to the various matters I have recited, derived from the statement made in support of the application to the Minister's delegate. 24 Those questions included questions about the appellant's partner in Bangladesh; the relationship with that particular person; the response of the families to the relationship once it was discovered; the circumstances surrounding the discovery of the act of sexual engagement between the appellant and his partner; the scope and nature of the appellant's sexual orientation; the circumstances in Bangladesh in relation to such relationships; the appellant's brother's position in Saipan; the relationship that the appellant formed with a Pilipino gentleman in Saipan; the nature of any contact between the appellant and his former partner; the question of whether the appellant had travelled to any country other than Saipan; whether the appellant had a partner in Australia; and aspects of why the appellant could not live apart from his family if he returned to Bangladesh. 25 Having considered all of those matters, evidence from other sources, including UK Home Office country of origin information reports in relation to Bangladesh and gay and lesbian and bisexual or trans-gender activity in Bangladesh; and US State Department reports and Department of Immigration and Multicultural Affairs information services reports, the Tribunal then proceeded at AB167 to AB171 of the reasons to identify the eight reasons why the Tribunal could not be satisfied that the appellant is an homosexual. Each of those reasons identified by the Tribunal were viewed by it cumulatively, not necessarily each in isolation on their own and the Tribunal reached its conclusion by weighing all of those considerations in discharging its fact finding role. 26 Lloyd‑Jones FM in his reasons summarised the eight particular propositions which influenced the Tribunal to conclude in the way it did. Having read the Tribunal's reasons for reaching its conclusions, I am satisfied that Federal Magistrate Lloyd‑Jones's summary of those considerations at [10] is entirely accurate and I will simply quote the summary: (a) The applicant's evidence contained in his Protection Visa application and oral evidence given to the Tribunal hearing on 24 October 2006 contained a number of inconsistencies in relation to the circumstances in which he was caught engaging in homosexual sex with his partner in 1972. The Tribunal was concerned by the applicant's failure, and inconsistent evidence resulted in the Tribunal forming the view that this incident had not occurred. (b) The applicant failed to provide evidence to corroborate his claimed relationship or other aspects of his claims. (c) The applicant's claim that he had a homosexual partner in Saipan for many years but he was unable to explain why he had not contacted that person since leaving Saipan. The Tribunal had considerable doubt about whether the applicant had a partner in Saipan. (d) The applicant's evidence concerning where he lived for his last five years in Bangladesh was vague. (e) The applicant's claims are inconsistent as to the reaction and stance of his family concerning the applicant's claimed homosexuality. (f) The applicant was not able to demonstrate to the Tribunal any familiarity with the homosexual community in Bangladesh nor was he aware of the terms used to describe the three main categories of homosexual males. (g) The applicant initially claimed that he was concerned that his family would put pressure on him to get married as they had done in 2003. However, he later claimed that his family did not mention his getting married "because they knew he was a homosexual." The Tribunal found this changing evidence concerning the applicant's family's change in attitude was unconvincing and cast further doubt upon his claim that they ever perceived the applicant to be homosexual. (h) The applicant claimed to fear his former partner's family. However, the Tribunal did not accept that the applicant and partner were caught engaging in sexual intercourse in 1992. The Tribunal also regarded as implausible the applicant's claim regarding the number of partner's family threatening the appellant. 27 Those eight grounds led to the ultimate conclusion by the Tribunal and that conclusion was reached in light of the inconsistencies or at least perceived inconsistencies between the oral evidence, aspects of the written submissions and aspects of the responses by the appellant to questioning by the Tribunal. The appellant says that the questioning was too inquisitorial or too emphatic in its manner, particularly in relation to the resolution of the factual controversy as to whether the act of sexual engagement was discovered in the way initially put or later put. The proceedings before the Tribunal are not before this court in the sense of any transcript, which might reveal the sequence of questioning by the Tribunal. 28 However, the reasons formulated by the Tribunal canvass the factual assertions of the appellant and all the related material which went to the analysis of whether the Tribunal could be satisfied that the contended ground of a well-founded fear of persecution, namely, that ground of social engagement in homosexual relationships and persecution arising from those relationships was made out. The Tribunal ultimately could not be so satisfied. Such a matter falls squarely within the role of the Tribunal in deciding the factual questions. 29 The appellant challenged the decision of the Tribunal before the Federal Magistrates Court and in doing so relied upon a wide range of grounds. 30 I do not propose to recite each of those grounds and the resolution of them by the Federal Magistrate. It is sufficient for present purposes to say that six grounds were advanced before the Federal Magistrate. Grounds 1 and 2 went to criticism of the delegate in reaching the decision as the agent or representative of the Minister. That matter, of course, was not jurisdictionally open to the Federal Magistrates Court as its role was to conduct review of the decision of the Tribunal. Ground 3 has resonance with the contentions advanced in this court as a ground of error on the part of the Federal Magistrate in that it asserts a denial of procedural fairness and natural justice when assessing the claims and asserts that the Tribunal descended into a forensic and technical methodology for testing the credibility of the appellant which, in effect, was perverse and unsupportable. 31 It is said to be unsupportable because the Tribunal reached an unjust result by reason of its failure to consider the applicant's circumstances and placed undue emphasis on the controversy between the versions relating to the revelation of the appellant's sexual engagement with his former high school partner. Further, the appellant agitated that the explanation for the inconsistency that he offered, that he was panicked and lost his rhythm by not remembering the details, was not given appropriate weight by the Tribunal, especially having regard to the "honest" apology that he gave in the subsequent affidavit I have already described. Without going in to those matters in detail, it is sufficient to state the principle, and the principle is this. The methodology for testing factual matters before the Tribunal is an inquisitorial methodology. The manner of the exercise of that inquisitorial role, of course, can, in relevant circumstances, be perverse. Those circumstances would include circumstances where it is plain from proper evidence that the Tribunal has shut its mind to particular matters or has confused matters or has conducted itself in a way which is overbearing or intimidatory. The fact of asking questions, perhaps difficult questions, concerning each and every one of the various factual assertions put to the Tribunal is not of itself emblematic of unfairness or an overbearing or intimidatory matter. The testing of credibility is at the centre of the Tribunal's role and accordingly the Federal Magistrate, by reference to the authorities, dealt with that ground and rejected it. There is no error on the part of the Federal Magistrate in doing so. 32 Ground 4 before the Federal Magistrate also resonates with what is said in this Court as a ground of error, that is, the Tribunal engaged in an improper exercise of the power conferred upon it. Like the ground of appeal raised here, it was then devoid of any particularity and it was impossible for the Federal Magistrate to deal with a contention put at such a high level of abstraction. 33 Ground 5 asserted a jurisdictional error on the part of the Tribunal and it also resonates with the ground of appeal in this Court because it is contended that jurisdictional error arose out of the Tribunal's incorrect interpretation of applicable law as that law applied to the facts. Aspects of that matter went to the contended failure of the Tribunal to comply with s 424A of the Migration Act and a failure to put propositions to the appellant as to the basis upon which it might reach a decision, which might be adverse to the appellant. 34 The difficulty with that ground, of course, is that it is clear from the material I have described that a letter was written to the appellant, consistent with s 424A of the Migration Act, in which the Tribunal set out the particular matter of concern relating to the inconsistency in the versions concerning the revelation of the act of sexual engagement. That was a matter of concern to the Tribunal and it was put to the appellant and a response was given. There is no obligation to put to the appellant, for the purposes of inviting a response, material of the kind described in the ground of appeal such as the long list of cases relied upon by the Tribunal in isolating what is, as a matter of law, a "refugee" and other such matters. 35 The material put by the Tribunal to the appellant for the purposes of s 424A represented a discharge of its obligations, and I can find no error on the part of the Federal Magistrate in the way in which the Federal Magistrate dealt with that ground. 36 The final ground was ground 6 by which the appellant contended that the Tribunal failed to take in to account all relevant matters. No particulars of that ground were given and the Federal Magistrate determined that the Tribunal had taken in to account and properly considered and assessed the material before it at least in terms of the analysis reflected in the reasons and on that basis the Tribunal could not be satisfied that the appellant held a genuine fear of harm or a genuine fear of suffering persecution should he return to Bangladesh. Thus, the Tribunal could not be satisfied that the appellant held a well-founded fear of persecution for a Convention reason. 37 The appellant, in this court, has raised the matters I have previously mentioned. I am not satisfied that there is any demonstrated constructive failure on the part of the Tribunal to exercise its jurisdiction. As to ground 2, that ground goes to the activities of the delegate of the Department and that ground is not sustainable. Ground 3 is not sustainable, as it is clear from the reasons that the Tribunal had regard to the nature of the social relationship between the appellant and his partner and the implications for individuals engaged in homosexual activity in Bangladesh against the background of some country information. There was no obligation under the Act to put that country information to the appellant. As to ground 4 of the Notice of Appeal, that ground does not apply to the present circumstances for the reason I mentioned earlier. 38 The ultimate conclusion put by the appellant, based upon ground 4, is this: Based on that new regulation, I submit the Honourable Court to redirect my case to the RRT because I was denied procedural fairness. The Tribunal did not give me an opportunity to respond to Tribunal findings. That the RRT member did not ensure, as per reasonable practicable, or at all as required by 424A(1)(b) of the Migration Act, that the applicant understood why the independent country information was relevant to the applicant RRT review application in assessing applicant's protection visa application. In breach of the common law rules of procedural fairness, the Tribunal did not provide the applicant with any of the documents or put the substance of any of these assertions contained in the document, and relied upon by the Tribunal, to the applicant, or inform the applicant that the Tribunal would rely upon the documents and give the applicant an opportunity to respond to assertions in the documents. 39 A number of things should be said about this ground, apart from its strict inapplicability to the present circumstances. The first is that the Tribunal engaged in a process of reasoning which led it to form a view about the credibility of the applicant or more particularly as to whether it, as a fact finding Tribunal, could be satisfied of the contentions put to it by the appellant. The process of reasoning by which the Tribunal comes to a view is entirely a matter for it. It may, of course, miscarry in a recognised sense, which would give rise to jurisdictional error, but the process of reasoning itself is not information which must be put to the appellant. The weighing up and analysis of the various competing contentions is simply that: it is a process of reasoning by which the Tribunal comes to a view. 40 The question of what is procedurally fair in terms of information to be put to the appellant is, in fact, determined by the Act under Division 4 of Part 7. The appellant relies upon s 424A to say that the Tribunal did not write to him in advance of handing down its decision and invite him to comment upon the reasoning of the Tribunal in proposing to reach a decision adverse to him. The authorities make it clear that there is no such obligation in the circumstances applicable to the appellant (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477. 41 In addition, there is no obligation upon the Tribunal to provide what is described as "a running commentary," upon what it thinks about the evidence as it is considering, or as it may deal with that evidence (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). In relation to the country information referred to by the Tribunal in its reasons, that information was not adverse to the appellant and ultimately not relevant to the findings of the Tribunal because the Tribunal did not ultimately accept that the appellant was a homosexual. In any event, independent country information does not enliven, within s 424A, an obligation to put such information to the appellant and that results from the proper operation of s 424A(3)(a). 42 Having regard to all these observations, it naturally follows that the appeal must be dismissed with costs to be taxed or agreed. I certify that the preceding forty‑two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.