Amc18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 463

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AMC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 463

File number(s):

MLG 266 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

14 June 2022

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection visa – whether there was a reasonable apprehension of bias – whether there was jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Charisteas v Charisteas [2021] HCA 29

Fox v Percy [2003] HCA 22

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SZOAF v Minister for Immigration and Citizenship [2010] FCA 431

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

46

Date of last submission/s:

30 May 2022

Date of hearing:

30 May 2022

Place:

Parramatta

Counsel for the Applicant:

Mr Aleksov

Counsel for the Respondents:

Ms Lucas

ORDERS

MLG 266 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AMC18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	14 JUNE 2022

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 pay the First Respondent’s costs fixed in the sum of $7328.00.

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

1. The applicant is a citizen of Lebanon. The applicant had previously twice been denied entry visas to Australia. On 22 September 2013, the applicant arrived in Australia on a prospective Spouse visa. The applicant’s parents had arranged for the applicant to marry her cousin, Tony.

2. A short time after arriving in Australia, the applicant claimed that the relationship with Tony ended.

3. In around November 2013 the applicant met Mr A at a restaurant.  The applicant and Mr A became friends. The applicant claims that they subsequently fell in love.  The applicant claims that she told her family that she wished to marry Mr A, however her parents refused as Mr A was a Muslim and the applicant is a Christian.

4. On 23 June 2014, the applicant lodged an application for Spousal visa, sponsored by Mr K.  Mr K was a friend of the applicant.  The applicant and Mr K married in a civil ceremony at Wyong F3 Café on 11 June 2014. The applicant withdrew the visa application on 26 may 2015 apparently due to a breakdown in the relationship with Mr K.

5. The applicant subsequently ran away with Mr A. They attempted to be married however were advised this was not possible for both legal and religious reasons. Mr A apparently told the applicant’s family the couple were going to be married.

6. On 10 June 2015, the applicant applied for a Protection visa. The applicant claimed to fear harm on return to Lebanon because she is a Christian and married to a Muslim man. The applicant claims that her family threatened to kill the Applicant, Mr A and her children if she returns.

7. On 8 December 2015, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 5 January 2018, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

8. The applicant now seeks judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

9. Given the sole ground of judicial review set out below, it is not necessary to summarise the entirety of the Tribunal’s decision.  Instead, it is appropriate to focus on the particular aspects of the transcript of the hearing and the decision record which are the subject of complaint in giving rise to the claim of apprehended bias.

10. Suffice it to say that the Tribunal considered that the applicant’s claims lacked credibility and that the applicant was not a reliable credible or truthful witness.  The Tribunal found that the applicant had entered into previous relationships for the purpose of gaining entry in to Australia.  Whilst the applicant had legally married a Mr K in Australia, the timing of the marriage, the fact she had not subsequently sought to divorce him and the somewhat unusual venue for the wedding, being the F3 Motorway Cafe ay Wyong, supported a finding that this was not a genuine marriage.

11. Counsel for the applicant focussed on paragraph 70 of the Tribunal Decision record which reads as follows:

    I also find that her account of then ‘running away’ with a Muslim asylum-seeker A to be fabricated.  That is not to say that they have not formed a genuine relationship.  Rather, her alleged elopement with A appears staged.  Despite allegedly running away with her true love and Mr K having the ignominy of his wife running away with a Muslim asylum seeker in May 2015, neither the applicant nor Mr K appear to have instituted divorce proceedings

12. At paragraph 72 of the decision record, the Tribunal found that the applicant and her now de facto partner, Mr A, actions in attempting to get a Muslim cleric to marry them also lacked credibility and it appeared that the action was staged.  The Tribunal placed little weight on a hand written document. on a piece of notepaper. which appears at page 212 of the Court Book that purports to be evidence of an Islamic religious ceremony of marriage between Mr A and the applicant.

13. The Tribunal was not satisfied that the applicant would be targeted if she was to return to Lebanon by reason of having entered into a relationship with a man of the Muslim faith and having a child with him.

    GROUND OF JUDICIAL REVIEW

14. The applicant, in an Amended Initiating Application filed with the Court on 6 October 2021, relies upon a single ground of judicial review as follows verbatim (errors included):

    1.   The Administrative Appeals Tribunal failed to accord procedural hearing to the applicant by conducting the hearing of her application for a review in a way which gave rise to a reasonable apprehension of bias.

    Particulars

    a.The conduct of the Tribunal at the hearing, towards the applicant’s partner, Mr A, gives rise to reasonable apprehension that the Tribunal might have had a personal animus against Mr A and bought that animus to bear in the decision.

    b.Exchanges between Mr A and the Tribunal are out of proportion to any reasonable testing of the evidence.

    c.The statement of reasons does not allay these concerns but rather fortifies the impression of some personal animus against the applicant.

    d.A lay observer, fully informed of the facts of the case, would apprehend that the Tribunal did not bear an independent mind to the case.

    e.In circumstances where Mr A was an important witness for the applicant, this deprived her of a fair and reasonable opportunity to have his evidence assist the case.

    CONSIDERATION

15. The applicant contends that the Tribunal Member acted in a manner that gave rise to a reasonable apprehension of bias. The test for apprehended bias is well understood.

16. Apprehended bias may be established where a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not have bought an impartial mind in determining the application for review: (see; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]). Counsel for that applicant stressed the use of the word ‘might’ and that it was not necessary for the Court to find that the fair minded lay observer would make such a finding.

17. In Charisteas v Charisteas [2021] HCA 29 at [11] the following was said (citations omitted):

    11. 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. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

18. It is also well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

19. Further, the reasons of the Tribunal should not be read with ‘an eye finely attuned to error”: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604).

20. Robust and forthright questioning does not of itself sustain a finding of apprehended bias. In SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 Barker J had the following to say (some citations omitted):

    ….  Robust and forthright testing of the applicant’s claims by the Tribunal does not sustain a finding of apprehended bias.  Indeed, displays of robust individuality may at times be expected from persons charged with the difficult task of making decisions of this nature: Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Epeabaka [2001] HCA 23 at [90]. It is for the Tribunal to get to the truth of the matter and it is proper for the Tribunal to focus on an applicant’s mind.

21. In considering the complaint of the applicant, the Court has read the entirety of the transcript of the Tribunal’s hearing, and in particular the section where Mr A  gave evidence, the decision record of the Tribunal together with the material that was before the Tribunal which is contained in the Court Book. Counsel for the applicant did not seek to tender an audio recording of the hearing and was content to rely upon the transcript. The Court has approached its consideration of the matter on the basis that the entire factual history of the matter was known to the fair minded lay observer, including the applicant’s migration history and the matters that she sought to rely upon to show a well-founded fear of persecution.

22. In assessing whether a decision is affected by apprehended bias, “[t]he whole of the transcript of proceedings must be reviewed rather than sentences taken in isolation”: (see; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [75]).

23. The applicant claims that the number of exchanges between the Tribunal member and Mr A reveal an animus against him.  The first is at T42.4-21 where the following exchange occurred:

    Member:        … So why did you want to get married?

    Interpreter:      Because I fell in love with her.

    Member: Yes, but why?  You can’t get married twice.  It’s not right.  Yes.  It’s illegal in Australia.  And your wife is Christian, so she doesn’t really – so she doesn’t recognise your faith.  That’s a significant sin in her faith.  So I’m just wondering why you would agree to it and why you would seek to do that.

    Interpreter:      When I first met R (the applicant) first she had problems with family because they were trying to make her marry someone else and just for her in order to stay in Australia.  We used to go out together and I used to know everything, like, you know, about her problem, and for me, I’m not, you know – I’m not strict about religion.  That’s her religion.  Something personal.  My religion is, like, personal.

    Member:         that’s not answering my question…

24. It was submitted that the Tribunal was plainly wrong in thinking that Mr A was not answering its question.  The question was not well put.  It involved, it was submitted, a confrontational interruption which apparently flowed from a lengthy premise and the question was double-barrelled.  It was submitted that the issue was a poor formulation of the question not evasiveness.  It was submitted that, why would the Tribunal have interrupted in such a harsh way unless it had “something against” the witness.  It is noted however, that the Tribunal subsequently clarified the question and received a direct responses.

25. The suggestion by the applicant that the above exchange is indicative of animus against the witness, in the Courts view, is simply not supportable, and is, if anything, mere speculation on the part of the applicant.  A fair reading of the entirety of the transcript indicates that there was considerable difficulty in getting clear answers from both the applicant and Mr A.  Even if the question was poorly formulated, and that resulted in an answer that was not entirely responsive, that is not evidence of bias.  As is conceded by the applicant, the Tribunal sought to clarify the questions subsequently and receive direct responses to them. 

26. A central issue in the matter was the Tribunal’s concern that the applicant, who was already legally married to another person, Mr K, and who even at the time of the hearing had not commenced divorce proceedings in respect of her marriage, would seek to marry another person and potentially commit a criminal offence of bigamy.  The fact that the Tribunal sought to clarify its questions is in fact evidence of the Tribunal rather than being biased, was trying to be fair to the applicant and Mr A by clarifying what his responses were to the concerns of the Tribunal.  This exchange is not evidence of bias.

27. The next exchange complained about occurs out T42.31-46 and is as follows:

    Member:Yes, but it’s – you knew she was already married.  So how could he have – why did you need to find somebody who is a marriage celebrant, because there’s no way they could – it would be illegal for them to marry somebody who was already married.  That would be breaking the law.  It makes no sense to me, so can you please explain.

    Interpreter:      I know R (indistinct).  She was forced to marry and her marriage was on paper only.  Because on paper only.  There was nothing else.

    Member:Yes, but I don’t think you understand.  It’s a legal marriage and you’re telling me that you’re trying to find a legal marriage celebrant to marry someone who is already married.  It’s illegal.  So why would – they couldn’t do it legally.  They would be breaking the law.  Why are you trying to get somebody to break the law when you know that they can’t do it?  It just doesn’t – that bit doesn’t – the story doesn’t make sense.

28. Counsel for the applicant submitted that the applicant’s answer was clear and straightforward.  The applicant and Mr A were seeking religious marriage. It was submitted that it was entirely reasonable to think that a religious authority might not be troubled by any “paper marriage” under temporal authority.

29. It was submitted that for the Tribunal to say that the “story doesn’t make sense” suggests the Tribunal might have been thinking adversely to the witness for reasons unconnected with the evidence. It was submitted that the Tribunal attacked the witness unjustifiably and inexplicably (if it was carrying out its task in an unbiased way).

30. Counsel for the first respondent submitted that it was entirely open and reasonable for the Tribunal to remain concerned as to the logic in Mr A’s narrative such that it did not make sense. The fact that the applicant believed the story to make sense does not bear out the allegation that the Tribunal had something against Mr A.   

31. The proposition that the Tribunal would be untroubled by the efforts of the applicant and Mr A to seek a further marriage, in circumstances where the applicant was already legally married to Mr K, is not supportable.  A fair reading of the entirety of the transcript indicates the Tribunal was seeking to understand the logical basis upon which the applicant and Mr A considered they were able to be married while the applicant remained married to another person. 

32. The suggestion is put forward by Mr A that the applicant’s marriage to Mr K was only a “paper marriage’ and therefore somehow not an impediment to a further marriage was a matter that the Tribunal was legitimately entitled to explore.  This exploration needs to be understood in the light of the hand written document, on a piece of paper apparently taken from a notepad, at Court Book page 211, which is unsigned and undated, which the applicant and Mr A said was evidence of a religious marriage between them.  That the Tribunal might find this evidence difficult to accept is perhaps unsurprising.  That it might explore the matter in a robust manner is again unsurprising.  The Court is satisfied that the Tribunal was properly entitled to explore the nature of the understanding by Mr A of his capacity to legally marry the applicant, who was already legally married and not divorced.  This exploration of the matter was also in circumstances where the applicant had taken no steps to even apply for a divorce from Mr K.  This exchange is not evidence of bias.

33. The applicant complains that a further exchange across pages T43 to 45 of the transcript is evidence of an attack on Mr A that is unjustifiable and inexplicable, if the Tribunal were carrying out its task in an unbiased way.

34. The exchange is in the following terms:

    Member:Sorry, can we just - on what basis did you think you’re in Australia and you’re allowed to be married twice? I don’t understand that at all.

    Interpreter:      Well, what I knew that her marriage was on paper only and she was (indistinct) to it - into it. And, secondly, we fell in love with each other and that’s why we thought we can - you know, we can marry - get married.

    Member: You’re not answering the question.

    Interpreter:      You’re an adult. I assume that you know what the marriage laws are in Australia. You can only be married to one person, legally. Did you know that?

    Interpreter:      I knew after the sheik told me.

    Member: Sorry, this is a yes or know question. Did you know that the law in Australia only allowed you to marry one person at a time? Yes or no.

    Witness: Yes.

    Member: Yes, okay. You knew that before you went to see the sheik.

    Interpreter:      After.

    Member: So what did you - it didn’t occur to you at all, living in a western country, that there could be a problem here (indistinct) already married, that could be a problem?

    Interpreter:      All I - all I knew, that she was first - like, you know, forced into the marriage just for the, like, you know, the papers. That’s why I, like, you know, I was encouraged to go and do it.

    Member: You’re avoiding the question. Did you know before you went to the sheik that you’re not allowed to be married twice in Australia? Sorry, at the same time. Yes or no.

    Interpreter:      No.

    Member: It didn’t occur to you at any time to check whether somebody could be married to two people at the same time?

    Interpreter:      No, that didn’t occur to me, and I never was in (indistinct) relationship with someone else.

    Member: Okay. So in Lebanon Christians are allowed to be married to two people at the same time?

    Interpreter:      I don’t know much about them, to tell you the truth.

    Member: I find that extremely hard to believe. So you don’t know that Christians aren’t allowed to have multiple wives or multiple husbands?

    Interpreter:      I thought, like, you know, you meant that, you know, if a woman is allowed to marry two men. That is what I thought.

    Member: Are women in Islam or Christianity allowed to be married to two husbands at the same time?

    Interpreter:      No.

    Member: So why did you think they could be here?

    Interpreter:      Because she was married only on paper.

    Member: No, she was married legally. So why did you - so she’s married legally in Australia. You went out of your way to find a marriage celebrant - not somebody who wasn’t a marriage celebrant. You said they had to be a marriage celebrant. That’s why Halid Hanza told you who the marriage celebrant was. So, you know, it makes no sense. I’m trying to establish your credibility, or whether you’re telling the truth. So you’ve told me that you know that women can’t be married to two people at the same time in either Islam or Christianity.

    Interpreter:      Yes, correct.

    Member: You know she’s married.

    Interpreter:      Yes.

    Member: You went out of your way to find - you’re telling me you went out of your way to find somebody, whose name you can’t tell me, a sheik who is a registered marriage celebrant, which is the whole reason you went to find that person, not the sheik from Guildford, who you didn’t know was a registered marriage celebrant. So you went out of your way to find somebody who could marry a woman to two men at the same time. You can appreciate that, from my end, that story just doesn’t make sense. Do you understand?

    Witness: Yes.

    Member: So are you telling me the truth?

    Interpreter:      I’m telling you the truth.

    Member: So why are you knowingly breaking the law? Well, sorry, knowingly trying to break the law? It doesn’t make any sense.

    Interpreter:      Can I sort of explain to you again?

    Member: Have you explained it twice? You’ve told me the facts, so I assume it’s the same. What is different to (indistinct)?

    Interpreter:      Yes. I was not looking to break the rule. The whole story is I went to, like, the sheik, and the sheik told me that, ‘Because your wife is legally married, I cannot marry you legally.’

    Member: But you would have known before. Because you know women can’t marry - even in your religion, women can’t marry two men. So you’ve told me you went specifically to somebody, to a marriage celebrant, somebody who could legally marry you in Australia, but you didn’t go to the Guildford sheik because you didn’t know whether he was a marriage celebrant.

    Interpreter:      I wanted something to be done legally.

    Member: Exactly. But it couldn’t be. See, that whole story just doesn’t make sense. We won’t go down that path any further.

1. Counsel for the applicant complains that the above was an unconcealed direct challenge to the witness’s integrity. It was not an issue about which the ultimate truth was in dispute, only whether the applicant held some naïveté about the topic at a time in the past.  It was submitted that the questioning was “intense cross examination” over a side issue.  It was submitted that, in the circumstances, the witness had not failed to answer the questions, was not evasive, and was simply giving evidence of acknowledged naïveté.  The applicant’s evidence might have been believed or it might not have believed.  It called for an assessment of all the evidence.  It was submitted that the Tribunal’s manner presumed an adverse view of the witnesses’ credibility because of the fact of his naïveté.  It was submitted the manner of the Tribunal was incredulous, quarrelsome and essentially aggressive and that the Tribunal apparently had some dislike of the witness.

2. On behalf of the respondent was submitted that it was understandable why the Tribunal remained perplexed as to why Mr A tried to find a marriage celebrant to marry them in circumstances where it was illegal to marry someone who is already married.  The applicant’s contention that she and Mr A were only seeking a religious marriage is one that is not supported by the exchange as a whole.  It was entirely open and reasonable for the Tribunal to remain concerned by the logic of Mr A’s story such that it communicated that view to Mr A.  The fact that the applicant believes the story to make sense does not bear out the allegation that the Tribunal had something against Mr A.

3. Given the entirety of explanation being put forward by the applicant and Mr A as to why they sought to be married, it is perhaps unsurprising that the Tribunal might express some scepticism.  This is what it was conveying in its questioning.  The Tribunal was entitled to robustly and forthrightly test the evidence so that it could determine in its own mind precisely what the reasoning was that was relied upon by the applicant and Mr A in the somewhat unique circumstances of this case. 

4. The evidence of Mr A is that they approached a local Sheikh, (not the one at the mosque where Mr A worshipped) who told them he could not carry out a marriage ceremony as the applicant was still legally married.  Notwithstanding this, they found another Sheikh that they cannot recall the name of, who they say, carried out a religious ceremony evidenced by the document produced at Court book page 211.

5. The mere fact that the applicant may feel that the conventions of discretion and prudence may have been breached in the way in which the Tribunal went about its robust and forthright questioning is not sufficient to establish bias.  Bias must be firmly established.  In the Court’s view this exchange is not evidence of bias. Again, the factual premise being relied upon by the applicant, as giving rise to the need for protection, necessarily required a full exploration of the details of what it was claimed happened and the reasoning behind those actions. The Tribunal member was entitled to express his concerns as to what he was being asked to accept and give every opportunity for the applicants to provide a full explanation.

6. The last exchange relied upon as evidence of bias is that T48 and is as follows:

   Member: If you want to marry your wife legally why hasn’t she filed for divorce?  She still married to somebody else.  You said it’s been two and a half years since you met, surely she would be – surely you’d be really cracking at her to get rid of the other guys so you can marry her legally.

   Interpreter:      We were waiting for the tribunal, for my wife to finish, so we can start this proceeding.

   Member:         Why do you need to wait for that?

   Interpreter:      well, nothing (indistinct) we’re only waiting for this Tribunal results to be able to start a proceeding for divorce.

   Member: Why do you think her husband has a started it then?  He is not waiting on a protection visa application and, you know, she’s run away with you, she’s brought shame on her whole family.  You’d think he’d want to be rid of her as soon as he could but he hasn’t done anything.  It’s a bit strange isn’t it?

   Interpreter:      I don’t know him personally.

   Member: no, no, but I mean just on the face of it I just find it strange that, you know, he hasn’t – it’s been two and a half years, his wife eloped to somebody who doesn’t have the same religious background.  You’d think he’d want to move on.  It raises questions in my mind.

7. On behalf the applicant was submitted that the reference to “shame” on her family was not pleasant.  However, it refers back to the applicant’s legal husband.  There was no evidence about Mr K’s attitude to this matter.  It was submitted the contrast between the discussion with the applicant at T33 and the discussion and the tone with Mr A is striking.  Perhaps Mr K wants to move on perhaps he does not.  It was submitted that the error in the exchange is made far worse by the comment at paragraph 70 of the Tribunal’s reasons whether the Tribunal identifies, and relies on, the “ignominy of… running away with the Muslim asylum seeker”.  It was submitted this was a scandalous comment.  Firstly, there was no reason for the reference to Mr A being an asylum seeker. Second, there was no evidence about Mr K’s attitude and that the Tribunal was ascribing to Mr K its own values which of betrayed an adverse attitude towards Mr A for illegitimate reasons.

8. On behalf of the respondent it was submitted the central premise of the applicant’s claim to fear harm was that she was a Christian who sought to marry a Muslim man and that her family, who are fanatical Christians, would kill her if she returned to Lebanon.  The relevance of

   
   

   Mr A being a Muslim was therefore pertinent to the applicant’s overall claims.  This includes the Tribunal’s reasoning that, in circumstances where the applicant had betrayed her religion by running off with in seeking to marry a non-Christian, this might add a further degree of animosity or distaste to the breakdown of the marriage such that a husband would have sort to divorce from the applicant some time ago.  This does not connote any degree of “discriminatory thinking” on the part of the Tribunal rather, it was corollary to the central basis of the applicant’s claims for protection.  The Tribunal found at paragraph 66 of the decision record that the applicant had entered into previous relationships for the purpose of gaining entry into Australia.  The applicant’s characterisation of the Tribunal making a scandalous comment is entirely unfounded.

9. The Court is not of the view that the material relied upon above is evidence of apprehended bias.  Given the totality of the claims by the applicant and the history upon which she relied, the Court is of the view that the conclusions the Tribunal came to were open to it on the basis of the evidence that was before it, for the reasons it gave, including the adverse credit findings. The Tribunal took efforts to ensure that the matters that concerned it were clearly put to the applicant and Mr A to enable them to respond.  The Tribunal had the opportunity of hearing from the witnesses orally and by observing them.  This puts the Tribunal at an advantage in making assessments of credit: (see; Fox v Percy [2003] HCA 22 at [41]).

10. The Court is not of the view that the comment by the Tribunal complained about is scandalous.  Whilst it may not have been as gentle as it could have been, it was necessary for a conclusion to be drawn in relation to the particular matter complained of given the way the case was run by the applicant. It was essentially that the applicant would be harmed if returned to Lebanon due to her non-married relationship with a Muslim man, in circumstances where she remained married to another man.

11. The reference to Mr A being an asylum seeker was a matter of fact. The reference to Mr K not having taken steps to divorce the applicant  in circumstances where he had the ‘ignominy’ of his wife running away with a Muslim man, whilst being a matter that could have been put in a different way, does not in the Court’s view ground an allegation of apprehended bias. The Court has been mindful that the fair minded lay observer, properly informed of all of the facts of the case would be aware of the fact that Mr A was both Muslim and an asylum seeker. Paragraphs 69 through to 75 of the Tribunal’s decision record need to be read as a whole. The Court is not satisfied that the identification of the fact that Mr A was a Muslim asylum seeker would lead a lay observer to conclude that the Tribunal member would not decide the matter on its merits. This particular has no merit

    CONCLUSION

12. The application is dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated: 14 June 2022