ABC19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 214
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 214
File number(s): SYG 17 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 22 March 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – apprehended bias – failure to comply with ss 414 and 425 – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 5H, 5J, 5K, 5LA, 36, 414, 424A, 425 Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Charisteas v Charisteas [2021] HCA 29
Minister for Immigration v Jia (2001) 205 CLR 507
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZOAF v Minister for Immigration and Citizenship [2010] FCA 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 16 March 2023 Date of hearing: 16 March 2023 Place: Parramatta Counsel for the Applicant: Mr Poynder - Direct Access Brief Counsel for the Respondents: Ms Gollan Solicitor for the Respondents: Mills Oakley ORDERS
SYG 17 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABC19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5450.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Bangladesh. On 31 March 2015, he applied for a Protection visa. The applicant’s Protection visa was refused by a delegate of the Minister for Immigration (“the delegate”) on 20 October 2015.
On 5 November 2015, the applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision not to grant the applicant his Protection visa in a decision dated 17 December 2018.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision record consists of 215 paragraphs over 32 pages. Paragraphs 1 and 2 outline the background of the applicant’s Protection visa application. Paragraphs 3 to 7 explain the criteria for the grant of a Protection visa as provided by ss 5H, 5J, 5K-LA and 36 of the Migration Act 1958 (Cth) (“the Act”). At paragraph 8, the Tribunal notes the Ministerial Direction No 56 and states that it had taken into account policy guidelines prepared by the Department of Immigration, PAM3 Refugee and humanitarian – Complementary Protection Guidelines, and PAM3 Refugee and humanitarian – Refugee Law Guidelines, as well as relevant country information.
Paragraphs 9 to 11 provides the applicant’s background. Prior to arriving in Australia, the applicant visited India, Singapore, New Zealand and Malaysia. He arrived in Australia on a Visitor visa on 4 December 2014 before applying for protection on 31 March 2015.
At paragraph 12, the Tribunal states that the applicant’s protection claim is that he is at risk of serious or significant harm if he is returned to Bangladesh because he has converted to Christianity and will be the subject of harm from Islamic extremists and members of his own family.
Paragraphs 13 to 24 deal with the submissions provided to the Department of Immigration. The application told the Tribunal that his friends in Australia were not Christian and that he had been attending Hillsong Church. On 22 June 2015, the Application provided the following documents:
· A medical certificate from a Dr MD H dated 2 June 2014;
· A report a Diagnostic Complex dated 8 June 2014;
· A medical certificate from Dr MD U;
· A second medical certificate from Dr MD U;
· A letter from Dr MD U dated 20 Aril 2015;
· A letter from Mr G (also known as S G) dated 22 May 2015; and
· A letter from Ms R dated 11 May 2015.
On 21 August 2015, the applicant provided to the Department of Immigration the following documents:
· A submission concerning an attack on the applicant that lead to significant injuries;
· A statutory declaration from the applicant’s wife dated 5 August 2015;
· A statutory declaration of the applicant dated 23 July 2015;
· A certificate of Baptism from St Joseph’s Church dated 26 July 2015 and photographs of the event;
· A letter from Father D dated 2 July 2015;
· Photographs showing the applicant at Christmas celebrations at a Christian Church in 2014; and
· Several articles depicting attacks on Christian converts in Bangladesh.
Paragraphs 25 to 34 deal with the applicant’s Department of Immigration interview on 8 October 2015. At this interview, the applicant was questioned on topics such as the authenticity of his medical evidence and inconsistencies in his evidence relating to his relationship with his mother and the circumstances of organising his travel to Australia. Following the interview, the applicant provided to the delegate further submissions clarifying evidence given during the interview. At paragraph 36, the Tribunal noted that the delegate found that the applicant was not a credible witness and did not accept many of his claims before refusing his Protection visa.
Paragraphs 37 to 40 outline the applicant’s submissions to the Tribunal. On 14 August 2018, the applicant’s representative provided the following documents:
· A letter from Father T;
· A letter from Mr Strezovaki;
· A letter from Ms Sakopo;
· A letter from Mr Dass;
· A letter from Mr Dias;
· A psychological report dates 28 July 2018 from Mr Awit; and
· A medical certificate dated 9 June 2018.
On 15 August 2018, the applicant’s representative also provided written submissions which explained the risk of serious or significant harm that the applicant would be subject to if returned to Bangladesh due to his religion, imputed political opinion and membership of particular social groups (Christians who face forced conversion and Muslim to Christianity coverts). The Tribunal also received a large number of photographs which depicted the applicant attending various Church services in Australia.
Paragraphs 41 to 91 deal with the Tribunal hearing and a s 424A letter sent to the applicant. The applicant attended a hearing on 20 August 2018, however it was unable to be completed on this day. The hearing resumed on 24 October 2018. On 29 October 2018, the Tribunal invited the applicant to comment on matters raised during the hearing pursuant to s 424A of the Act. The applicant responded to the invitation on 23 November 2018.
At paragraphs 42, the Tribunal notes that the hearing the member acknowledged the applicant’s psychological report and confirmed with the applicant that he was able to proceed with the hearing. The applicant stated that he was prepared to answer questions. At paragraph 91, the Tribunal states that during the 24 October 2018 hearing it advised the applicant that it accepted that the applicant had been baptised and attended church in Australia, and also accepted that the applicant’s parishioners believed that he was a genuine convert.
Paragraphs 93 to 133 considers the oral evidence given by the applicant’s witnesses. The Tribunal received oral evidence from Mr G, Father D, Mr Dass, Mr Dias, Ms Sakopo, Mr Strezovaki and Ms Sebastian. The Tribunal attempted to contact Father Tupou twice during the 24 October 2018 hearing, however was unable to reach him.
Mr G is friends with the applicant. They worked together at a power company for three to four years from around 2010 or 2011. Mr G was asked how long he and the applicant had attended church together and which church he attended with the applicant. Mr G was asked whether he attended a normal parish church or if it had any other role. He was then asked about the location of Catholic cathedrals in the region. He was then asked whether he knew what a cathedral was, to which he replied in the affirmative. When asked what to explain what a cathedral was, the Interpreter was unable to interpreter Mr G’s response and he stated that he had already answered the question. Mr G was asked for the name of the priest at the church he and the applicant attended. He was asked when the last time he say the applicant was and whether he saw the applicant in 2013. Mr G was then asked about the incident that caused the applicant to relocate.
Father D was contacted before the August hearing to confirm his identity, that he had been the parish priest in 2015 and that he had provided a reference for someone in Australia in 2015. At the August hearing, he was asked when he had met the applicant and if he knew when and why the applicant had come to Australia. Father D was asked whether Bishop Costa knew that he was talking to the Tribunal about the applicant. After responding in the negative, the member advised Father D that the response was difficult to accept as it was understood that he was Bishop Costa’s deputy. He was advised that the information given to the Tribunal by the applicant contradicted some of the information provided by him. Following Father D’s evidence, the applicant was advised that the member formed a view that the person who they had spoken to may not have in fact been Father D. At the October hearing, the applicant’s representative asked the Tribunal to contact Father D again to clarify matters raised from the first hearing. The Tribunal decided not to speak to him a second time.
Mr Dass and Mr Dias give evidence at the October hearing. Mr Dass told the Tribunal that he had known the applicant since September 2016 when he was asked by the parish priest to teach the applicant about Catholicism. He stated that he believed the applicant to be an honest person and a genuine Christian convert. Mr Dias stated that he was the applicant’s godfather and had taught him about Catholicism. He said that the applicant attended church regularly and believed him to be a genuine convert of Christianity.
Ms Sakopo, Mr Strezovaki and Ms Sebastian gave evidence at the October hearing by telephone. Ms Sebastian said that she knew the applicant by the name ‘J’ and that she had known him for about two years. She saw him at church and at other church events. The applicant was described as always willing to help and Ms Sebastian said that she believed he was a genuine Catholic because he prayed with Rosary. Mr Strezovaki stated that he had known the applicant for about a year and that he had seen him at church. Ms Sakopo said that she had also known the applicant for about one year. She said that the applicant came to mass every week and she had been told by friends that he had been baptised. She said that she did not know him well enough to know whether he was a genuine Catholic.
Paragraphs 134 to 141 considers country information concerning religion and Christianity specifically.
At paragraph 142, the Tribunal found that the applicant’s account of his involvement with Christianity in Bangladesh was vague, confused and unpersuasive. The Tribunal found that the applicant had sought the assistance of witnesses in Bangladesh to provide false evidence regarding his involvement with Christianity. In relation to Mr G’ evidence, the Tribunal noted many inconsistencies and that the applicant claimed there were difficulties in interpreting some of Mr G’s evidence, however it did not accept that these problems were the fault of the Interpreter.
At paragraph 166, the Tribunal found that the applicant’s account of the problems he and his immediate family faced in Bangladesh as a result of the discovery of his decision to convert to Christianity confused, sometimes contradictory and generally unpersuasive.
At paragraph 177, the Tribunal found that the applicant’s evidence regarding the time spent in D and his failure to leave for Australia in a timely manner confused and implausible.
At paragraph 184, the Tribunal found that the applicant’s evidence concerning the religious views of his family and his in-laws to be confused and unconvincing.
At paragraph 187, the Tribunal found the applicant not to be a credible or truthful witness. In making its findings, the Tribunal stated that it considered the evidence of Mr G and Father D, whereby it did not accept them to be credible witnesses and gave no weight to their oral evidence or letters of support.
At paragraph 195, the Tribunal states that it believes that the applicant arrived in Australia with the intention to remain permanently and concocted a claim that he had converted to support a Protection visa application. The Tribunal considered the possibility that the applicant bad become a genuine Christian after having attended church, however this was never claimed or suggested by the applicant. It found that the applicant arranged to be baptised and continues to attend church not because he is a genuine convert, but rather to obtain residency in Australia.
At paragraph 197, the Tribunal found that the applicant does not face a real chance of suffering serious or significant harm at the hand of extremists or anyone else in Bangladesh because he had attended church in Australia to support his claim for protection. It also found that the application would not face a real chance of suffering serious or significant harm from members of his own or his wife’s family because he had been baptised and attended church in Australia to support a claim for protection.
The Tribunal did not accept that the applicant was a member of a particular social group of Muslims who have converted to Christianity or Christian who face forced conversion to Islam. It did not accept that the applicant genuinely fears harm for reasons of political opinion or that there is a real chance that he would face harm on return to Bangladesh because he would be viewed as opposing the adoption of Islam as the state religion or because he would be viewed as holding anti-Islamic views of any kind.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained within an amended Initiating Application filed with the Court on 4 May 2021. The grounds are reproduced below as they appear in the Initiating Application:
1. The decision of the second respondent (the Tribunal) was affected by apprehended bias, such that a fair-minded lay observer might reasonably have apprehended that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the application. The particulars of apprehended bias are set out below; however in general terms the conduct of the Tribunal was such that a fair-minded lay observer might reasonably have apprehended that the Tribunal was disinterested in the evidence of relevant witnesses and disinclined to explore what they might have had to say in any adequate measure.
Particulars
a)A critical issue of fact to be determined by the Tribunal was whether the applicant had genuinely converted to Christianity in Australia, through his baptism and participation in activities at St Joseph Catholic Church (the relevant issue).
b)In relation to the relevant issue the applicant provided letters from the Parish Priest of St Joseph, Father Tupou, another priest from the St Joseph, Father Strezovaki, and members of the St Joseph congregation; namely the applicant’s mentor, Mr Daas, and Mr Dias, Mr Sakopo, and Ms Sebastian (the Australian witnesses).
The applicant indicated that each of the Australian witnesses would be available at the hearing to give evidence in person or by telephone. The applicant also provided numerous photographs of his baptism and other activities at St Joseph.
c)In the first hearing on 20 August 2018, the Tribunal showed apprehended bias in an exchange with the applicant’s representative at the commencement of the hearing when the Tribunal misrepresented the proposed evidence by the first Australian witness, Mr Dass, in a way that avoided the relevant issue:
i.The Tribunal ascertained that Mr Dass, only knew the applicant as a part of the Christian Church in Australia and did not know of his involvement with the Christian Church in Bangladesh, before he came to Australia. The Tribunal said (Tr. 4:18-20):
Yes. Well, I certainly accept that he attended the church here in Australia, so I’m not sure that I need to take your evidence because it would appear that you’re simply going to tell me something that – that I accept.
ii.When pressed by the applicant’s representative, the Tribunal said (Tr. 4:40-43):
…perhaps we can see whether it – it does actually have any particular relevance. I certainly accept that your client attended church here, and I accept that probably most of the people he attends church with accept that he’s a genuine member of the church. That’s their opinion.
iii.The Tribunal then showed irritation towards the representative, abruptly cutting him off and incorrectly saying that he had not given notice of the Australian witnesses, also unfairly referring to the representative having put pressure on “time constraints” (Tr. 5:1-24).
c)In the second hearing on 24 October 2018, the following instances of apprehended bias occurred:
i.The Tribunal said that it did not need to hear from any of the Australian witnesses because “I accept that you have been baptised, and that you’re attending church in Australia” (Tr. 3:12-13). This was not the relevant issue.
ii.Then followed a series of exchanges over about five minutes between the Tribunal, the applicant and the representative (Tr. 3:14-8:37), during which the Tribunal made it clear that it did not want to hear from these witnesses because it accepted that the applicant had been baptised and had been attending church in Australia; while the representative attempted to direct the Tribunal to the relevant issue; e.g., (emphasis added) “one of the issues is the…credibility of…the conversion” (Tr. 3:34). During this exchange the Tribunal repeatedly interrupted, cut-off and talked over the representative, showing irritation, lack of courtesy and disinterest in what the representative was attempting to say.
iii.During the aforementioned exchange the Tribunal moved its stance slightly, saying that (emphasis added) “I accept that they believe that he is a genuine Christian”; however it added that “you need to be clear, that does not necessarily mean – I mean, I still make my own assessment on these things” (4:27-33). This was still not the relevant issue.
iv.The Tribunal continued to show irritation and disinterest in what the Australian witnesses might say, stating “It just - you’ve got a long list of people here…It’ll take up a lot of time. I have no questions for any of them”, before apparently having a change of mind and deciding to hear from the two witnesses who were present at the hearing, adding; “but I don’t see any point in telephoning a whole lot of other people who will tell me, presumably, the same thing”.
v.Then followed a further exchange between the Tribunal and the representative, with the Tribunal again repeatedly interrupting, cutting-off and talking over the representative, and unfairly and discourteously criticising the representative for not knowing what the witnesses had to say (5:9-7:8).
vi.When the Tribunal finally appeared to apprehend that the purpose of the evidence to be given by the Australian witnesses was the relevant issue; namely, to “assess the genuineness of his conversion” (7:10-13), it agreed to speak with the two Australian witnesses present at the hearing, but “I’m not going to call anyone else because I don’t think there’s going to be anything to be gained from that” (7:15-20). This was followed by a further exchange where the Tribunal again mischaracterised the purpose of their evidence, saying “I accept that that’s their belief [that the applicant is a Christian]. I accept that he’s been going to church, and I accept that he’s been baptised in Australia”, to which the representative responded, “Yeah, but, one of the questions that…possibly you would ask them why they believe? That’s a critical question”, and the Tribunal scoffed and said “Yeah, I think that this is not a space” (8:21-28).
vii.With regard to the two Australian witnesses present, Mr Dass and Mr Dias (Tr. 8:42-12:5), the Tribunal treated these witnesses in a disinterested and perfunctory manner, with questions that were either too vague (e.g., “what is it that you want to tell me?” - Tr. 9:10); or not directed to the relevant issue (e.g., “you believe he’s a genuine Christian?” - Tr. 9:30 and TR. 11:43 - without the necessary follow-up, “Why do you believe this?). The Tribunal appeared disinterested in exploring the relevant issue, and the combined period of the evidence of these two witnesses was only about three minutes. In each case the evidence of the witness was abruptly ended by the Tribunal.
viii.When the Tribunal called the four Australian witnesses who were to give evidence by telephone, the Tribunal again showed discourtesy, disinterest, impatience and a disinclination to explore what they might have had to say about the relevant issue.
ix.With regard to the applicant’s Parish Priest at St Joseph, Father Tupou, the Tribunal was unable to get through to him by telephone and said that it would try him again after the rest of the evidence; adding (12:32-48):
But if I can’t get him then, that’s it…I’m not trying any further…Okay. As for the others, I don’t propose to call them. I don’t think there’s anything more to be gained.
x.The Tribunal then said, “You know what, to avoid any possibility of any dilemmas down the track, despite the fact that I think it’s unnecessary, I will give them a very quick call” (13:18-20). This suggested that the Tribunal was disinterested in the evidence of the other Australian witnesses and was only prepared to call them to avoid any “appeal point” before the Courts.
xii.With regard to the other priest at St Joseph, Mr Strezovaki, and fellow parishioners, Ms Sakopo and Ms Sebastian (13:24-19:20), the Tribunal showed similar discourtesy, disinterest, impatience and a disinclination to explore what they might have had to say about the relevant issue. None of these witnesses were sworn or affirmed, and their combined evidence was only about around nine minutes. Mr Strezovaki, who was obviously an old man and not a native English speaker, was confused by the brusque and discourteous approach of the Tribunal, and was not even asked if he believed that the applicant was a genuine Christian. Ms Sakopo and Ms Sebastian were each asked whether they believed that the applicant was a genuine Christian; however only Ms Sebastian was asked why she believed he was a genuine Christian. All were asked unhelpful questions not directed to the relevant issue, and all were cut off abruptly by the Tribunal at the end of their evidence, with no opportunity being given to the representative to suggest questions for the witnesses.
2. The Tribunal failed to comply with its obligation to provide the applicant with a fair hearing or an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars
The applicant relies on the particulars referred to in paragraph 1, above.
3. The Tribunal failed to carry out the required statutory task of reviewing the primary decision under s 414 of the Act by failing to engage in an active intellectual way with the submissions and evidence provided by the applicant in relation to the genuineness of his conversion to Christianity in Australia.
Particulars
a)The applicant relies on the particulars referred to in paragraph 1, above.
b)In its decision at [195]-[198] the Tribunal accepted that since arriving in Australia the applicant had been baptised and had attended church on a reasonably regular basis, and “that the priest at St Joseph’s Church and his fellow parishioners believe that he is a genuine convert to Christianity”. However, the Tribunal did not make any findings in relation to the relevant issue; namely, whether the priest and fellow parishioners had any sound basis for their belief that he was a genuine convert to Christianity.
THE APPLICANT’S SUBMISSIONS
The applicant’s legal representative submitted that the applicant’s protection claim was in the nature of a ‘sur place’, in that the claim for protection arose from events that occurred outside of the recieving country and in Australia: (see; SZSSJ v Minister for Immigration (2015) 234 FCR 1 at [7]). It was submitted that this claim ought to be separated and is distinct from the applicant’s claim of being involved with Christianity in Bangladesh.
The applicant’s first ground relies on the initial 28 or so minutes of the transcript of the Tribunal hearing of 24 October 2018. The Court has received an annotated transcript of the relevant parts to the Tribunal hearing recording.
It was submitted that the Tribunal reframed the primary issue before it as whether the applicant had attended church activities and whether the officials and parishioners at St Joseph’s Church believed that the applicant was a genuine convert to Christianity. These were only surface issues and that the Tribunal could dismiss these as no more than subterfuge.
It was submitted that the critical issue before the Tribunal was whether the applicant’s involvement with Christianity in Australia was genuine or whether his conversion was credible. In determining these issues, the Tribunal was required to explore with the witnesses why they believed that the applicant’s involvement with Christianity was genuine. Although the Tribunal acknowledges this issue with the applicant’s representative and with the final witness, it did nothing to pursue the issue and kept reframing the issue as whether the applicant had attended church and whether the witnesses believed the applicant to be a genuine convert.
The applicant’s legal representative submitted that the Tribunal expressed exasperation and impatience with the applicant’s representative when discussing the relevance of the witnesses’ evidence and continually interrupted the representative when they tried to provide and explanation. The Tribunal indicated that it did not consider the witnesses evidence to be of any value and, after speaking to Mr Dass and Mr Dias, and failing to reach Father Tupou, stated that it did not propose to call any of the remaining witnesses. The Tribunal said that it would call the other witnesses, but that it would only be a “very quick call… to avoid any possibility of any dilemmas down the track, despite the fact that I think it’s unnecessary”.
It was submitted that the Tribunal’s tone and conduct showed a lack of interest in what the applicants might be able to say. It was curt and dismissive in that it hurried the witnesses through their evidence and abruptly shut them down. The Tribunal demonstrated unwarranted zeal with how it questioned the unintended responses of the witnesses who did not speak English as their first language. The questions put to witnesses were shallow and bland and made no attempt to find the basis upon which each witness held their beliefs concerning the critical issue. It was submitted that the Tribunal had almost nothing to say about the evidence of the Australian witnesses.
The applicant relied on the class on bias as prejudgment, in that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: (see; Minister for Immigration v Jia (2001) 205 CLR 507 at [72]). It was submitted that a Tribunal may manifest prejudgment by expressing a “premature disbelief in the credibility” of a witness, or be expressing concluded views curing the hearing.
The applicant’s legal representative submitted that ground two relies on the same circumstances relied on in ground one. By truncating the evidence of the witnesses from St Joseph’s Church the Tribunal failed to comply with its obligation under s 425 of the Act to provide the applicant with an opportunity to give evidence and present arguments on the issues arising in relation to the decision under review.
Ground three contends that the Tribunal failed to engage in an active intellectual way with the submissions and evidence of the applicant regarding credibility of his church activities and conversion to Christianity in Australia. Instead, the Tribunal limited its findings to whether the applicant had been involved in church activities and whether the applicant’s fellow parishioners believed that he was a genuine convert to Christianity.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent’s legal representative submitted that the principles regarding a claim of apprehended bias include the following. First, a finding of apprehended bias will not be made lightly and must be clearly proven and firmly established. Secondly, the whole Tribunal hearing transcript must be reviewed in assessing the claim, not sentences taken in isolation. Thirdly, firmly stated conclusions are not sufficient to establish bias. Fourthly, vigorous testing of the evidence and frank exposure of its weaknesses is acceptable, but error will arise if a fair-minded lay observer or properly informed lay person might infer that there is nothing a witness could say or do to change a Tribunal’s preconceived view. Fifthly, a reasonable apprehension of bias required that more must be shown that mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion. Finally, that occasional displays of impatience and irritation, whether justified or not, will not amount to disqualify bias.
It was submitted that at the August hearing, the Tribunal asked extensive questions of the applicant and took evidence from Father D by telephone.
The first respondent submitted that the allegation of apprehended bias demonstrated by the Tribunal misrepresenting the proposed evidence of Mr Dass in a way to avoid the relevant issue should be rejected. The relevant passage makes clear that the Tribunal was attempting to understand what issued the evidence was relevant to in order to determine whether it was necessary to take the evidence from the witness. The statement that “I’m not sure how relevant that’s going to be. Let’s wait and see” shows that the Tribunal did not have a pre-conceived view about the relevance of the witness’ evidence.
It was submitted that at the conclusion of the August hearing the applicant was alerted to the fact that the Tribunal had a number of difficulties with the evidence Father D had given. As the hearing had run over the scheduled time, the Tribunal advised the applicant that another hearing would be set down to deal with “the outstanding issues and any further witnesses”.
Shortly before the October hearing, the applicant’s representative advised the Tribunal that the applicant wished to call six additional witnesses to give oral evidence at the hearing. It was submitted that the description of the evidence that the six additional witnesses were to give overlapped to a significant extent and was described in generic terms. It was further submitted that the late notification of these witnesses raised issues as to whether all of the evidence could be taken on that day.
It was submitted that the allegation of apprehend bias with respect to comments at T3.12 to T8.37 failed to acknowledge the context of the comments being that the applicant had shortly before introduced six additional witnesses and the Tribunal was concerned as to how the evidence would be accommodated with the allocated hearing time. It is clear from the transcript that the Tribunal was attempting to understand the relevance of the additional witness’ evidence, bearing in mind the generic descriptions of their evidence and the fact that they overlapped to a large degree.
The exchange at T3.12 to T4.4 demonstrates that the Tribunal was trying to determine the relevance of the additional witnesses’ evidence and was seeking to determine whether those witnesses were going to merely be giving evidence of matters which the Tribunal had already accepted. It was submitted that there was nothing in this exchange that would demonstrate to a fair-minded observer that the Tribunal had a pre-conceived view about whether the applicant had genuinely converted to Christianity or Catholicism. In fact, the Tribunal accepted this was an issue when it was raised by the applicant’s representative.
In relation to the issue of credibility of the applicant’s conversion, the first respondent submitted that it was clear that the Tribunal explored the probative value of the evidence from the applicant’s witnesses in circumstances where the Tribunal had to form a view on the issue itself. This merely demonstrates an attempt by the Tribunal to understand what the applicant’s position was regarding the weight and relevance of this type of evidence.
It was submitted that it was clear that the Tribunal had not formed a view as to the genuineness of the applicant’s conversion to Catholicism after arriving in Australia from the following statement:
MEMBER:Yes. I note I have your information, and of course I’ll take account of that. What I should also alert you to today, though, is, as I say, I’m still considering your claims. I do have problems with some of them. If that were lead – to lead me to the view that you had converted to Catholicism – or, been baptised, rather – let me rephrase that, that you had been baptised and attended church here in Australia in order to gain a visa, I would then be required to ignore all of that activity when I looked at whether or not you were a refugee. I would still need to take account of it when I looked at whether or not you met the complementary protection criteria. Now, I’m not saying I’ve reached a conclusion on that as yet, I haven’t, but I just need to alert you to that – that provision of the law so that you’re aware of it. Okay. So, that’s all for today, thank you for coming along. …
The first respondent disputed that the Tribunal demonstrated any disinterest, impatience or discourtesy towards any of the witnesses or the applicant as claimed by the applicant. However, it was submitted that, whether or not this was the case, it would not provide a basis for a claim of apprehended bias.
It was submitted that the Tribunal did actively engage with each of the applicant’s witnesses that it spoke to. The Tribunal asked further questions of the witnesses that had actual knowledge of the applicant’s beliefs and faith to ascertain whether they considered the applicant to be a genuine Catholic and why. These questions were not asked of the witnesses who expressed little knowledge of the applicant and his faith.
The first respondent submitted that the Tribunal’s obligations under s 425(1) of the Act were complied with when it conducted a two day oral hearing running over six hours in total and considered evidence from the applicant and witnesses which the applicant had requested. There was no evidence that the Tribunal truncated the evidence of the witnesses from St Joseph’s Church.
In relation to ground 3, the first respondent submitted that the Tribunal set out a detailed summary of the witnesses’ oral evidence at [92]-[133] of the Tribunal decision record. The Tribunal then made findings regarding the applicant’s involvement with Christianity in Australia at [195]-[198] relying on this evidence.
CONSIDERATION
The Tribunal decision record in this matter is extensive and detailed. It runs to some 215 paragraphs over 32 pages. It contains a detailed account of the applicant’s claims, his evidence and that of his witnesses and a detailed discussion of the application of that evidence to the relevant law.
The hearing extended over two days. First, on 20 August 2018 when the hearing ran from 10:39am to 3:00pm, a total of 4.5 hours. This hearing involved extensive questioning of the applicant by the Tribunal together with telephone evidence from a priest, Father D.
The second hearing on 24 October 2018 ran from 11:11am to 1:34pm, a total of approximately 2.5 hours. Prior to the second hearing, the applicant’s representative indicted he wished to call a total of six witnesses, being four more than had been indicated at the first hearing.
The applicant’s claim to fear persecution such that he should be granted a Protection visa had two distinct elements. First was an alleged conversion to Christianity in Bangladesh prior to his travel to Australia. This was rejected by the Tribunal. It found the applicant was not a truthful or credible witness and did not accept that he had an involvement with Christianity at any y time in Bangladesh. The applicant takes no issue with that finding.
The applicant concentrates the claim of jurisdictional error first on a claim that the Tribunal member exhibited apprehended bias during the second hearing. During oral submissions, Counsel for the applicant clarified with the Court that there was no allegation of actual bias. The Initiating Application contains lengthy particulars of those matters, it was said showed, apprehended bias.
Counsel for the applicant put to the Court that the central issue in the matter was whether or not the applicant had genuinely converted to Christianity in Australia through his activities at the St Joseph’s Catholic Church. A number of letters had been provided to the Tribunal from witnesses, each of which testified to the applicant’s regular attendance at St Joseph’s Church. For example Father Tupou, the Parish Priest of St Joseph wrote in a letter dated 8 November 2018, that he had found the applicant’s “journeying in the Catholic Church quite genuine and sincere… He is Catholic.”
During the Course of the hearing before this Court, approximately 29 minutes of the sound recording of the second Tribunal hearing were replayed. This was undertaken on the basis that the recording was better evidence of the assertion that the Tribunal member showed apprehended bias.
Also provided to the Court as an “aide memoir’ was a transcript of the sound recording played to the Court with annotations made by counsel as to the relevant interpretation that should be placed on the manner in which the Tribunal member conducted the hearing. These include complaints that the Tribunal member interrupted and talked over the applicant’s representative, mis-framed the evidence, evidenced a disinterest in evidence that was proposed to be called, spoke in an imperious tone that did not invite disagreement, and showed annoyance.
Counsel for the applicant complains that in one interchange with a witness where the Tribunal Member said: “Sure, Anything else that you know about him that you would like to tell me” this was “dismissive as though the Tribunal can’t wait to remove the witness because it believes he has nothing relevant to say”. Counsel for the applicant complains that some witnesses who gave evidence by telephone were not sworn in and this is evidence if disinterest.
Counsel also complains that the Tribunal Member “made no attempt to guide the witness to relevant evidence” and asking an unhelpful open question at the beginning of the witness’ evidence’ Counsel asserts that the tome of the Tribunal Member was sceptical and resigned to the evidence being called from a witness was a waste of time.
The law in relation to apprehended bias is well known. In Charisteas v Charisteas [2021] HCA 29 at [11] the following was said:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits[6]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed (citation ammitted).
The mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). Robust and forthright questioning by the Tribunal will not sustain a finding of apprehended bias: (see; SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]). Further, as noted by Counsel for the Minister, “occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias”: (see; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [81]).
At the beginning of the second hearing, the following exchange took place between the applicant and the Tribunal Member as regards the witnesses proposed to be called:
Member:And, their purpose is to tell me that you have been baptised and are attending church in Australia, is that correct?
Applicant: Yeah
Member:Well, I accept that you have been baptised, and that you are attending church in Australia, and I have no other questions for your witnesses. So, I’m not entirely sure what it is that you want them to tell me. I mean they appear to be going to tell me something that I accept, in those cases it is usually not worth taking the evidence. But, obviously, I don’t want to refuse to take evidence that is going to be of any value, so I’m trying to understand – what it is you think they can – can tell me that’s – that would be important for me to understand.
The exchange continued with the Tribunal Member stating they accepted the applicant “has a reasonable understanding of Christianity. I accept that his fellow church goers accept that he is a Christian”. Notwithstanding this, the applicant’s representative pressed the Tribunal member to hear evidence from the witnesses he proposed to call. The Tribunal member agreed to hear from them.
Mr Dass was the first witness to be called. At page 9 of the transcript, Mr Dass confirms he was asked by the parish priest to take the applicant under his wing.
He was then asked the following question: “And, because of that knowledge of him –you – you believe he is a genuine Christian, Is that correct’. Answer ‘Yes’ Counsel for the applicant complains that the Tribunal member interrupted and talked over the witness and mislead the witness by reframing the issue to make it more limited. After a few more questions the Tribunal member states “Okay, Well I don’t have any other questions for you. Counsel for the applicant submits this last statement is dismissive of the witness.
When the Tribunal member asks the applicants representative “is there anything else that you would like me to ask him (Mr Dass), Counsel for the applicant complains this is “Dismissive and imperious – tone suggest that the member does not think the witness has anything relevant to say”.
The next witness called was a Mr Dias. He was asked if he believed the applicant was a genuine Christian. Counsel for the applicant complains this is misleading. Mr Dias answered “Yeah, because I’m the Godfather …I wouldn’t be the Godfather if he’s not genuine”. Counsel for the applicant complains there was no follow up Mr Dias was not asked why he believed the applicant was a genuine Christian. Counsel for the applicant then complains when the witness is not required further that the Tribunal Member was “Dismissive, as though the Tribunal can’t wait to remove the witness because it believes he has nothing relevant to say. No request by the representative for any further questions. Tribunal disinterested”.
Telephone evidence was then attempted to be taken from a Father Tupou, but the call was not answered. When the Tribunal member states that “I’m not trying any further” (to contact Father Tupou), Counsel for the applicant complains that the “Tribunal appears not very interested in what the parish priest of St Joseph’s has to say about why he believes the applicant is a genuine convert.”
Contact was then made with a Mr Strezovaki. He confirmed the applicant had been coming to the church. When he is asked “So what can you tell me about him” Counsel for the applicant complains that this is an “unhelpful open question – no attempt to guide the witness”. The answer to the question by Mr Strezovaki is interesting. He states “Well I don’t know about his case, I cannot witness anything, I don’t know nothing about him.” Counsel for the applicant complains that the Tribunal member was “Curt and dismissive (in not taking further evidence from Mr Strezovaki) and no attempt to assist the witness by directing him to the relevant evidence”.
The next witness was Ms Sakopo. Some initial questions that established Ms Sakopo knew the applicant from church. She was asked “So, you think he’s a – you – you accept that he is a genuine Catholic”. Ms Sakopo answered “I don’t really know him for me to say that”. Counsel for the applicant complains that the Tribunal member was curt and dismissive and made no request for assistance from the applicant’s representative.
The final witness was Ms Sebastian. After ascertaining that the applicant was a regular attendee at St Joseph’s, she was asked “And – and you – you believe he’s a genuine - genuine follower of the Catholic faith”. She answers “Yes”. Counsel for the applicant submits that this was the first time the Tribunal touched on the relevant issue with a witness.
The Court notes that at all times the applicant was represented before the Tribunal. It is not unreasonable to expect that the Tribunal would have been assisted by the representative and if necessary by them making submissions in relation to the questions that were to be asked of each witness. It appears however, that the representative took an entirely passive role, and even when asked if there was anything they wished raise with a witness replied in the negative.
As to the complaints that the Tribunal did not direct the witnesses’ attention to the relevant issue in question, the Court notes there is no general obligation on the Tribunal to investigate an applicant’s claims. The duty imposed on the Tribunal by the act is a duty to review, not a duty to enquire: (see; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]). There is no requirement for the Tribunal to make the applicant’s case for them. It is for the applicant to advance whatever evidence or argument they wish to advance in support of their contention that they have a well-founded fear of persecution for a convention reason. The Tribunal must then decide whether not that claim is made out: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Having listened to the sound recording of the Tribunal hearing, together with the complaints made by Counsel as to the conduct of the Tribunal member set out above, the Court is not satisfied that a fair minded lay observer, properly informed as to the nature of the proceedings, would reasonably apprehend the Tribunal may not abort an impartial mind in determining the application for review.
Although the Tribunal made it clear that it was prepared to accept the applicant had been baptised, and was a regular attender at church, and questioned the relevance of additional evidence being called, on matters that it indicated clearly accepted, the Tribunal went ahead and heard that evidence. The majority of that evidence was either not helpful at all to the issue in question, or merely confirmed what the Tribunal had already indicated it was prepared to accept. Even though it might be said that there may have been an element of annoyance on the part of the Tribunal member in having to deal with further evidence on matters that is already accepted, the fact the Tribunal went ahead and heard that evidence is in fact supportive of the proposition that they were prepared to give the applicant every opportunity to make their case.
The complaints by Counsel, outlined above, seek to betray the Tribunal member in the worst possible light and in the Court’s view are unjustified and not supported by the totality of the evidence. This was a Tribunal hearing that extended over two days and six hours of hearing time in which many witnesses were called. The Tribunal’s reasons are detailed and comprehensive. They set out in depth the evidence called. The complaint by Counsel that the reasons are limited in relation to the witnesses called at the second hearing is not evidence of bias. It is well accepted that the Tribunal is not required to summarise in detail all the evidence before it and that a failure to do so will lead to jurisdictional error. Further, while Counsel for the applicant concentrates on the second hearing, it needs to be read in context with the transcript of the first hearing which was also in evidence before the Tribunal.
Further, at the end of the hearing, at page 49, the Tribunal member stated as follows, in relation to whether not the applicant was a genuine convert to Catholicism “Now, I’m not saying I’ve reached a conclusion on that as yet, I haven’t. But I just need to alert you to that, that provision of the law so that you aware of it” in that regard, the member was referring to the fact that if the applicant had converted to Catholicism in order to gain a visa, this could not be taken into account by the Tribunal. The Court considers this to be a definite indicator the Tribunal’s mind was open to persuasion and it had not reached a conclusion prior to the end of the hearing.
In all of the circumstances, the Court is not satisfied that the applicant has not clearly proven and firmly established the Tribunal’s conduct the second hearing was affected by apprehended bias. Ground one has no merit.
Ground two is an allegation that the Tribunal “failed to comply with this obligation to provide the applicant with a fair hearing or an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant relied on the particulars that referred to in ground one and identify s 425 of the Act is the section to which the Tribunal allegedly fail to comply.
As noted by the respondent, s 425 of the Act relevantly requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.” The Court does not accept that hearing that extended over two days and took some six hours to complete is one where the applicant did not have an opportunity to give evidence and present arguments. The Court heard from each of the witnesses sought to be called even though it clearly indicated that it did not think they could necessarily assist in relation to the issues of the matter. Ground two has no merit.
Ground three is an assertion that the Tribunal failed to engage in active intellectual way with the submissions and evidence provided by the applicant in relation to the genuineness of his conversion to Christianity in Australia. It further alleges the Tribunal did not like findings about the relevant issue of “whether the priest and fellow parishioners had any sound basis for their belief that he was a genuine convert to Christianity.
The Court is satisfied that the Tribunal did engage in an active consideration of the submissions before it and set out in a detailed and comprehensive manner, the evidence and the conclusions that it reached for the reasons it gave. There is nothing illogical, irrational or legally unreasonable in these conclusions.
The Tribunal concluded the applicant had been baptised and continued to attend church, but found that he was not a genuine convert but add done so in order to gain a visa in Australia. The Court is of the view that this conclusion was open to the Tribunal on the evidence before it and the reasons it gave. Ground three has no merit.
CONCLUSION
As none of the grounds of judicial review have any merit, the application must be dismissed.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 22 March 2023
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