FEDERAL COURT OF AUSTRALIA BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205 Citation: BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205 Appeal from: BZAHB v Minister for Immigration & Anor [2015] FCCA 2087 Parties: BZAHB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: QUD 747 of 2015 Judge: EDELMAN J Date of judgment: 9 November 2015 Catchwords: MIGRATION – appeal from Federal Circuit Court on grounds concerning Tribunal decision that were not raised in the application before the Federal Circuit Court – credibility findings by Tribunal – whether the appellant was given clear particulars of information relevant to the Tribunal's decision – whether the decision of the Tribunal was unreasonable Legislation: Convention Relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees) Art 1A(2) Migration Act 1958 (Cth) ss 36, 91R, 424A, 424AA, 425 Migration Regulations 1994 (Cth) Sch 2 subcl 866.221 Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; (2013) 140 ALD 524 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 Water Board v Moustakas [1988] HCA 12; (1994) 180 CLR 491 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 Date of hearing: 9 November 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 55 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr M Hawker of Sparke Helmore Counsel for the Second Respondent: The Second Respondent entered a submitting notice IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 747 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: BZAHB Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: EDELMAN J DATE OF ORDER: 9 NOVEMBER 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 747 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: BZAHB Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: EDELMAN J DATE: 9 NOVEMBER 2015 PLACE: BRISBANE REASONS FOR JUDGMENT Introduction 1 The appellant is a 34 year old woman. She was born in India. She arrived in Australia in 2008 as a dependent of her husband who was on a student visa. She is now divorced from her husband. The appellant's student visa was made invalid on 6 March 2013. Her tourist visa expired on 15 March 2013. This appeal concerns a Protection (Class XA) visa (protection visa) for which she applied in March 2013. 2 The appellant was refused the protection visa by a delegate of the Minister. She applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for a review of the Minister's decision. That application was dismissed. She then applied to the Federal Circuit Court for judicial review of the decision of the Refugee Review Tribunal. That application was dismissed. She now appeals to this Court from the decision of the Federal Circuit Court. 3 The appellant's appeal to this Court raised two grounds of appeal concerning matters that were not raised before the Federal Circuit Court. Neither ground can succeed. The appeal must be dismissed. The decision of the Minister 4 On 13 March 2013, the appellant applied for a protection visa. In her application she said that she feared that she would be raped, beaten, and harassed if she returned to India. She said that her fear of mistreatment was from the family of her ex-husband and her ex-boyfriend. 5 The appellant explained the reasons for her fears which are described in her words below as follows but with minor corrections: Before I came to Australia and before I got married to my ex-husband I was in a relationship with a guy who was not from our community or religion. Our relationship was very close and we were intending to get married. Same intentions were advised to my family who refused to accept our relationship due to religious and community differences. Due to this my family decided to get me married as soon as possible. I married my ex-husband and soon after that we came to Australia where he wanted to study further. Obviously I was upset with my family due to their quick action of marrying me to a person who was not of my choice. I understood that things cannot be reversed now as marriage is once in a life time decision in our culture and community. I decided to come to terms with my married life and started supporting my ex-husband. Things were alright between me and my husband. But my ex-boyfriend back home was not able to come to terms that I was now married and settled in Australia, and he started calling me and starting becoming abusive. He asked me to leave my husband and go back to him. Initially he was saying all this in normal manner but then he became more aggressive. I was not able to hide this from my husband. As soon as my husband found out about my previous relationship he was very upset with me and started treating me differently. He was not as affectionate as he used to be. It seemed like he wanted to get rid of me from his life. My ex-boyfriend even called my husband and told him everything about our relationship. This was bad for our relationship. He made his intentions clear that he wanted to leave me. Even his family back home said that I made their son's life hell due to my previous relationship. We ended up getting a divorce. I thought of not marrying again and I never want to get married in my life again. My ex-boyfriend threatens me that his life is wasted due to my step of getting married and he will see that I do not have good life when I go back. Even my ex-husband and his family are thinking the same and they have made my parents' life hell within our community. Due to this my parents are not even happy with me. I think I have more enemies than friends. I will not be treated appropriately if I go back and everyone is seeking revenge from me and no one thinks that what I have gone through in my life and in this young age. 6 On 15 October 2013, the appellant was invited to an interview to discuss her visa application. The date was scheduled for 30 October 2013. 7 On 30 October 2013, the Minister's department received a medical certificate explaining that the appellant was suffering from a medical condition and unable to attend the interview. A case officer in the department rescheduled the interview by email for 28 November 2013. 8 On 27 November 2013, the appellant emailed the case officer and said that she had to move her home and would not be able to come to the interview the next day. She asked that the appointment scheduled for the next day be rescheduled. 9 On the same day, 27 November 2013, the case officer replied to the appellant and explained that the department only reschedules interviews in compelling and compassionate circumstances and that moving house was not one of those circumstances. She explained that if the appellant did not attend the interview scheduled for the next day then a decision would be made based on the written material provided by the appellant in March 2013. 10 The appellant did not attend the interview on 28 November 2013. The case officer emailed the appellant and asked her for her new address, which the appellant provided. 11 On 29 November 2013, the case officer, as a delegate of the Minister, wrote to the appellant denying her request for a protection visa. The delegate of the Minister gave lengthy reasons for her conclusion that she was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) and subclause 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth). The decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) 12 The appellant appealed from the decision of the Minister to the Refugee Review Tribunal. The Tribunal hearing was conducted on 30 April 2014 over two hours. 13 The decision of the Tribunal was delivered on 9 May 2014. 14 The Tribunal accurately described the requirements for a protection visa. The principal criteria are set out in s 36 of the Migration Act and Schedule 2 of the Migration Regulations. A visa applicant must meet one of the criteria in s 36(2)(a), (aa), (b), or (c): (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or (b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non‑citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa. 15 As to s 36(2)(a), the Convention Relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees) defines a refugee in Article 1A(2) as any person who: … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it ... 16 The effect of Article 1A(2) was modified by s 91R of the Migration Act, which has since been removed from the Migration Act. Section 91R provided as follows: Persecution (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) 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) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 17 The Tribunal referred to all of these provisions and explained that there are four key elements to the Convention definition of a refugee very broadly mentioned below: (1) an applicant must be outside his or her country; (2) an applicant must fear persecution; (3) the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition; and (4) an applicant's fear of persecution must be a well-founded fear. 18 The Tribunal expounded on these four elements in considerable detail. In particular, and relevant to this appeal, in relation to (2) the Tribunal explained that under s 91R(1) the persecution must involve "serious harm" to the applicant and systematic and discriminatory conduct (s 91R(1)(c)) with examples in s 91R(2). 19 The Tribunal also considered the alternative grounds including the ground of complementary protection in s 36(2)(aa). 20 The Tribunal then described how the appellant was born in India, belongs to the Indian Gujarati ethnic group and is of the Hindu-Patel religion. She lived and was educated in India, obtaining a Bachelor of Commerce degree, before arriving in Australia in 2008. 21 After setting out the details described above from the appellant's protection visa application, the Tribunal described how the appellant returned to India in 2010 because her relationship was not going well. She returned to India with the full knowledge of the Indian authorities. The appellant divorced in Brisbane on 6 May 2012. 22 The Tribunal then described the evidence from the appellant at the hearing including the Tribunal's questions about how the appellant's ex-boyfriend obtained her phone number and the phone number of her ex-husband. The Tribunal asked her about the views of her father of her ex-boyfriend, and reasons why she feared her ex-boyfriend. She was asked when she began to fear her ex-boyfriend and asked about the statement from her ex-boyfriend that if she returned to India he would do something to her. The Tribunal enquired in some detail about the basis upon which the appellant feared her ex-boyfriend and her relationship with her ex-husband and her family. The Tribunal described these matters in considerable detail. 23 The Tribunal then set out its findings over six single-spaced pages. Its findings included the following: (1) the appellant was not a witness of truth in concerning the knowledge of her family about her relationship with her ex-boyfriend in India; (2) the appellant was not truthful about the existence of her ex-boyfriend and her relationship with her ex-boyfriend or that she was in a relationship prior to being married which was the reason for her divorce; (3) the appellant's claims that she was forced to marry her husband because her family did not approve of her relationship with her boyfriend were not credible; (4) there was no real chance that the appellant would suffer serious harm from her ex-husband or her ex-husband's family (who she said had never threatened her or harmed her and wanted nothing to do with her) if she returned to India; (5) the appellant voluntarily returned to India and her home region for two months as a tourist in 2011 and stayed with a friend and her family and suffered no harm; (6) the appellant was not truthful in her evidence that her family did not speak to her when she returned to India and stayed with her family for one month in 2011; (7) the Tribunal was not satisfied that the appellant would suffer serious harm for any Convention reason if she were to return to India, including no real risk of significant harm from: arbitrary deprivation of life; the death penalty; torture, cruel or inhuman treatment or punishment; or degrading treatment or punishment; (8) the Tribunal was not satisfied that the appellant has a well-founded fear of being persecuted in India for any Convention reason; (9) there is no real risk that the appellant will suffer significant harm as a divorced woman from her ex-boyfriend, her ex-husband, her family, her ex-husband's family, or from anyone if she returns; and (10) the appellant did not have substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm in this instance. 24 The Tribunal concluded that the appellant did not satisfy any of the criteria in s 36(2)(a), s 36(2)(aa), or s 36(2) of the Migration Act. The Tribunal therefore affirmed the Minister's decision not to grant a protection visa. The decision of the Federal Circuit Court 25 On 5 June 2014, the appellant applied to the Federal Circuit Court for an order restraining the respondents from giving effect to the decision. There were three grounds of the appellant's judicial review application in the Federal Circuit Court: (1) the Tribunal failed to consider part of the applicant's claims, by failing to consider whether or not the applicant was at risk of significant harm from her ex-boyfriend and husband and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness; (2) the Tribunal had no jurisdiction to make its decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act 1958; and (3) the Tribunal failed to investigate the applicant's claims, specifically the grounds of persecution in India. Therefore, the Tribunal's decision dated 12 May 2014 was effected by actual bias constituting judicial error. 26 The Federal Circuit Court heard the appellant's application on 16 June 2015. 27 On 7 August 2014, Judge Jarrett delivered reasons of the Federal Circuit Court dismissing the appellant's application. The appellant's grounds of appeal to this Court 28 The appellant appeared in person at the hearing of this appeal and spoke through an interpreter. None of her grounds of appeal alleged any error in any aspect of the reasons of the Federal Circuit Court. Her grounds of appeal alleged different errors by the Tribunal from those alleged before the Federal Circuit Court. Her grounds of appeal were as follows: 1. The Hon Judge failed to consider that the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the [appellant] clear particulars of information it considered would be part of the reasons for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act, and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 2. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 29 The appellant was given the opportunity to present written submissions but she did not do so. In oral submissions this morning, the appellant said, through her interpreter, that she considered that the Tribunal had made a hasty decision and that it had not looked at all her documents properly. She also submitted that the Federal Circuit Court had also made a hasty decision. The grounds of appeal are new matters not raised before the Federal Circuit Court 30 The Minister submitted that this Court should not entertain either of these grounds because they were not matters which were raised before the Federal Circuit Court. 31 In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51] Gleeson CJ, McHugh and Gummow JJ said the following: It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. 32 See also: Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ); Water Board v Moustakas [1988] HCA 12; (1994) 180 CLR 491, 498 (Mason CJ, Wilson, Brennan and Dawson JJ); Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317, 365-366 [151] (Hayne and Callinan JJ). 33 The same approach has been applied by this Court in the context of appeals from judicial review decisions in the Federal Circuit Court. As the Full Court has explained "an appeal by way of rehearing … does not mean it is an opportunity to revisit the decision of the tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge": Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; (2013) 140 ALD 524, 529 [28] (Cowdrey, Katzmann and Farrell JJ) 34 In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424, 439-440 [37]-[39], Allsop J (with whom Drummond and Mansfield JJ agreed), identified four principles as to whether leave should be granted, apart from those cases where a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding. The considerations in these cases where such responsive evidence could not have been given are set out below (citations omitted). (1) First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked. (2) Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. (3) Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. (4) Fourthly, before any new point could be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice. 35 The Minister did not suggest that there was any matter that could have been raised in the Federal Circuit Court in response to these matters that could not be raised by submissions on this appeal. I do not consider that there is any matter in the general terms of the grounds of appeal, or in the appellant's submissions this morning, which gives rise to any real prejudice to the Minister by being called upon to respond. 36 However, ultimately, it is unnecessary to weigh any potential prejudice or unfairness to the Minister which arises as a result of these matters being agitated for the first time on appeal. The reason why this is unnecessary is because I accept the submissions of the Minister concerning the lack of merit in the grounds of appeal. Ground 1: Whether the Tribunal failed to comply with ss 424A and 424AA 37 In the first ground of appeal, the appellant alleges that the Tribunal failed to comply with the requirement in ss 424A and 424AA of the Migration Act to give the appellant "clear particulars of information it considered would be part of the reasons for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information". The appellant's particulars of this failure included that the Tribunal "did not issue any written invitation under section 424A". 38 Section 424A, at the relevant time, provided as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. 39 The appellant did not explain what information was not provided to her by the Tribunal. She was invited to an interview under s 425 of the Migration Act which she attended. She was provided with an interpreter fluent in the Gujarati and English languages. The hearing was conducted for more than two hours. 40 As I have explained, the information which formed part of the Tribunal's reasons for decision was the appellant's application for a visa together with her answers to questions at the Tribunal hearing. 41 The Tribunal asked the appellant a series of questions, which formed the basis for its adverse assessment of her credibility. These questions related to the basis of her claim as well as addressing concerns that the Tribunal had. For example, the Tribunal: (1) asked the appellant many questions about her relationship with her ex-boyfriend, her family's knowledge of it and whether the police could protect her against her ex-boyfriend; (2) asked the appellant why, with her post-graduate degree, she could not relocate elsewhere in India when she had spent a month there in 2011 living apart from her family; (3) drew attention to the inconsistencies between her written claims and the claims she made at the hearing; and (4) confronted the appellant with inconsistencies and gaps in her evidence. 42 In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, 616 [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), the High Court, quoting from Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, 477 [24], explained that "information" within s 424A(1)(a) does not include the Tribunal's disbelief of the appellant's evidence nor, in a case where the best view of the appellants' evidence failed to disclose a Convention nexus, does it encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … 43 Further, the effect of s 424A(2A) is that the Tribunal will not infringe s 424A in relation to information where the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. 44 Section 424AA, at the relevant time, provided: Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so--the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 45 Apart from matters such as the subjective thought processes described in SZBYR, the numerous questions which the Tribunal asked of the appellant were matters which satisfied s 424AA. The appellant was given the opportunity of responding to those questions. The Tribunal also offered the appellant an adjournment, which she declined. 46 The first ground of appeal is dismissed. Ground 2: Whether the Tribunal acted in a manifestly unreasonable way and ignored s 91R 47 The appellant's allegation in this ground of appeal is that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claims and ignoring the aspect of persecution and harm in terms of s 91R of the Migration Act. 48 In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, the High Court identified different senses in which the concept of unreasonableness is used in judicial review. 49 On the one hand, "unreasonableness" can be used in a broad sense to describe "the more specific errors, going to jurisdiction, which the law recognised and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations": Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 365 [71] (Hayne, Kiefel and Bell JJ); see also at 350 [27] (French CJ). 50 On the other hand, the concept of unreasonableness can also be used to describe a circumstance where "'upon the facts [the result] is unreasonable or plainly unjust' … [for] the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power": Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ); see also at 350-351 [28] (French CJ). 51 As I have explained above, the Tribunal specifically considered s 91R of the Migration Act. The Tribunal's conclusions were supported by its findings of fact including its rejection of the appellant's evidence in central respects. Whether or not an unreasonable finding of fact is a legitimate ground for judicial review (as to which see The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [141]-[194]), the Tribunal's conclusions were not improbable based on the evidence before it, and they were made with the advantage of seeing and hearing from the appellant: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 127-129 [26]-[31] (Gleeson CJ, Gummow and Kirby JJ). 52 The appellant did not identify any other specific basis upon which a conclusion could be reached of unreasonableness in the first sense described above. For instance, the appellant was provided procedural fairness and no irrelevant considerations, or lack of relevant considerations, were identified. None is apparent. 53 The second ground of appeal is dismissed. Conclusion 54 Neither of the two grounds of appeal concerns a matter raised before the Federal Circuit Court. Neither ground has merit. To the extent that the matters raised in oral submissions go beyond these grounds of appeal and allege a failure of the Tribunal or Federal Circuit Court to consider adequately the material before them, it is apparent from my reasons that the decisions of the Tribunal and the Federal Circuit Court were made after careful consideration of all the material relevant to the grounds before them. 55 The appeal must be dismissed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman. Associate: Dated: 9 November 2015