API16 v Minister for Immigration
[2018] FCCA 370
•22 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| API16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 370 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – protection visa application – claims that the Administrative Appeals Tribunal committed jurisdictional error by impeding or thwarting the applicant giving evidence before it and in not giving information for the purposes of s.424A or s.424AA of the Migration Act – further, that the Tribunal disregarded information and did not advise Applicant that it intended to rely on inconsistencies in the Applicant’s evidence and was biased – no basis to criticism of Administrative Appeals Tribunal - no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.423A, 424A, 430 Administrative Appeals Tribunal Act 1975 (Cth), s.2A(b) |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | API16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 629 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 1 March 2017 |
| Date of Last Submission: | 30 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms C Hillary |
| Solicitors for the Respondents: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application dated 18 November 2016 and filed in Court on that date is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 629 of 2016
| API16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 31 years, having been born on 5 January 1987.
By Application filed in this Court on 21 March 2016 he is to be taken as having sought to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 2 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 October 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
At the hearing the Applicant relied upon an Amended Application (entitled “Amended Notice of Appeal”) dated 18 November 2016 (Amended Application) which was annexed to his affidavit of 20 November 2016.
Background
The Applicant arrived at Darwin on 6 August 2013 as an irregular maritime arrival. He applied for a Protection visa on 6 September 2013. He summarized his claims for protection in a Statutory Declaration declared on 4 September 2013 as follows:
a)He is a Bangladeshi and a Muslim.
b)He fled from Bangladesh in late February 2012 as he feared for his life if he remained there because the Awami League wanted him to join their campaign.
c)He used to be a strong supporter of the Bangladesh National Party (BNP) and attended meetings of the BNP, although he was not a member.
d)The Awami League prevented him from obtaining a National ID card and hence he was unable to vote and thereby give support to the BNP.
e)In early February 2012 he was attacked outside his village by Awami League members who beat him with a steel rod and threatened to kill him if he did not join their party or alternatively pay them money. He suffered a major injury on his right hand. The Applicant informed these Awami League members that he could not pay them or join their party and they threatened to kill him should he not join them.
f)On many occasions members of the Awami League would come to his work place to demand money and try to force him to join their party.
g)He could not bear it any longer and feared for his life and fled from Bangladesh to Malaysia.
h)He feared for his life should he return to Bangladesh because of the Awami League as the governing political party in Bangladesh. He is regarded as an enemy of the Government which would not give him protection.
Relevant Criteria and Law for a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of the Delegate
By his Decision Record of 23 October 2014 the Delegate refused to grant the Applicant a Protection visa. The Delegate accepted the Applicant’s claim that he was a supporter of the BNP, but did not accept that he had a high political profile in Bangladesh, or that he would be viewed as a threat by the ruling Awami League or any other group or individual in Bangladesh.
Accordingly, the Delegate was not satisfied that the Applicant had a real chance of being persecuted for a Refugees Convention reason in Bangladesh or that Australia had protection obligations under the complementary protection criterion and he refused to grant a Protection visa to the Applicant.
Tribunal Hearing and Decision Record
The Applicant applied to the Tribunal for merits review of the Delegate’s decision on 29 October 2014. On 19 February 2016 the Applicant provided submissions to the Tribunal under cover of a letter which stated that “until now, I failed to disclose some of the core issues of my claim” and requested that the Tribunal take into consideration his current claim, which was as follows:
a)On 25 March 2011 he had eloped with Anjana, the sister of a neighbouring Hindu friend and on 27 March 2011 married her in a Hindu ritual as she had insisted. However, the girl’s Hindu uncle caused the Applicant to be harassed and persecuted because of this inter-faith marriage between a Muslim and Hindu.
b)Except for his mother and father, his own family members and other Muslims in his Mosque were unhappy that he had married a Hindu girl without converting her into the Muslim religion.
c)His family in Bangladesh were involved in the politics of the BNP and he feared political vengeance from the Awami League.
The Applicant appeared at a hearing before the Tribunal on 24 February 2016 to give evidence and present arguments.
At [14] of its Decision Record the Tribunal noted that as a result of its consideration of the Applicant’s evidence and after having discussed it with him at the Tribunal hearing, it was not satisfied that the Applicant “was a generally credible witness”.
At [15] – [25] the Tribunal dealt with the Applicant’s original claims in connection with his work for the BNP and his fear of harm from the Awami League. At the Tribunal hearing the Applicant agreed that he had held no position with the BNP and that he only ever attended BNP meetings and listened to other people at these meetings. The Applicant said that he may have attended around 10 meetings during each of the only three elections which he had engaged in while living in Bangladesh and that he did not engage with the BNP outside of the lead up to these three elections. The Tribunal accepted that the Applicant supported the BNP like many persons in Bangladesh although he had “embellished, if not fabricated, his evidence about his BNP support”.
At [22] of its Decision Record the Tribunal concluded that it was not satisfied that the Applicant had been harassed or harmed by Awami League supporters for any of the reasons which he had claimed and did not accept that he had any kind of profile in Bangladesh which would have motivated any such treatment.
At [26] – [28] of its Decision Record the Tribunal dealt with a change in the evidence of the Applicant concerning the attack on him by five Awami League members. He had claimed in his Statutory Declaration (see [4(e)] above) that this attack had occurred in early February 2012 because the Awami League had wanted him to either join their party, or alternatively pay them money. However, at the Tribunal hearing the Applicant said that the attack had taken place one year earlier in February 2011 and for a different reason, namely his relationship with Anjana and the issue of inter-faith marriage.
The Tribunal noted at [27] that this change in the Applicant’s evidence was one of the reasons that it was satisfied that the Applicant was not a generally credible witness.
At [29] – [39] of its Decision Record the Tribunal considered the Applicant’s new claims and expressed concern that he had never previously mentioned his alleged wife Anjana to the Department of the Minister or his Delegate until his submission of 19 February 2016, and at [35] recorded that it regarded as false the Applicant’s explanation about why he had not put forward previously the new protection claims made in his submission of 19 February 2016.
At [40] of its Decision Record the Tribunal substantially rejected the factual claims made by the Applicant.
The Tribunal then in the balance of its Decision Record proceeded to consider country information and was satisfied that neither the Refugees Convention criterion or the complementary protection criterion were satisfied by reason of:
a)the Applicant’s family’s political opinion and activities in Bangladesh;
b)his own religious opinions;
c)his unlawful departure from Bangladesh; or
d)the fact that he might be perceived as a failed asylum seeker.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Amended Application (excluding Particulars) are as follows:
1.The Administrative Appeal Tribunal (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant's protection visa rejection by the first respondent.
2.The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3.The second respondent has denied the applicant's natural justice and procedural fairness pursuant to s423A and 430(1) (c) and (d) of the Migration Act 1958.
4.The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate's decision.
5.The applicant was deprived of the natural justice and procedural fairness. The Tribunal did not give neutral view in assessing/reviewing the applicant's claim whose interest has adversely affected by the primary decision. The review authority did not given the applicant opportunity in a correct manner to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
Consideration
Ground 1
Insofar as this Ground alleges that the Tribunal “failed to exercise the proper procedure” that subject will be dealt with below. Otherwise, the Particulars set out in the Amended Application appear to suggest that:
a)the Tribunal disregarded, or did not handle, the new information submitted to the Tribunal on the hearing date; and
b)the Tribunal relied upon country information and inconsistencies in the Applicant’s claims as made previously and as made before the Tribunal, and failed to put those inconsistencies in writing to the Applicant for comment;
and thereby the Tribunal committed legal error.
In my view this Ground fails. The Applicant tendered and relied upon the transcript of the hearing before the Tribunal on 24 February 2016. The Tribunal first raised at TP 8.31 the topic of the new claims (those made in the submission of 19 February 2016) and indicated to the Applicant that this was something that the Tribunal needed to discuss with him. Discussion of the new claims then commenced at TP 9.37 and thereafter there was constant reference to and discussion of the Applicant’s new claims.
Further, at [29] – [39] of its Decision Record the Tribunal expressly and in terms deals with the Applicant’s new claims.
The Tribunal was entitled to consider independent country information. It was also entitled to consider inconsistencies in the Applicant’s claims for protection as made to the Department, the Delegate and the Tribunal from the date of his Protection visa application lodged on 6 September 2013. Inconsistencies in the Applicant’s evidence impacting on his credibility and information merely going to credibility do not fall within s.424A(1) of the Migration Act 1958 (Cth) (the Act) as constituting “information” for the purposes of that section. This is because such material does not itself constitute a “rejection, denial or undermining” of the Applicant’s claims to a Protection visa, as required by SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [17] and Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 at [22]. As was said in SZBYR at 616 [18], “However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
In any event, the new information given to the Tribunal by the Applicant in his submission of 19 February 2016 and at the Tribunal hearing was information that the Applicant “gave” for the purpose of his application for review of the decision of the Delegate and therefore s.424A(3)(b) of the Act rendered s.424A inapplicable : see generally NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at 434 – 435 [57] – [59].
Further, the Applicant had also given the information and evidence contained in the Decision Record of the Delegate to the Tribunal at the time he lodged his review application with the Tribunal and therefore again s.424A(3)(b) of the Act rendered s.424A inapplicable: see Sundberg J in Minister for Immigration v Chamnam You [2008] FCA 241, which case was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ.
Also, in my view the inconsistencies referred to in the Decision Record of the Tribunal were not required to be put to the Applicant either orally or in writing. The role of the Tribunal was as stated by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268]:
[265]………….The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal's proceedings.
[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
[268] Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.
Further, as Graham J said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 505 – 506 [36] – [37] and [39]:
[36] Proceedings before the tribunal are not adversarial, but inquisitorial. The tribunal is not in the position of a contradictor of the case being advanced by an applicant. A tribunal member conducting an inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for a review before the tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the tribunal to decide whether his claim has been made out; it is not part of the function of the tribunal to seek to damage the credibility of an applicant’s story in a manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. See per Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 ; 75 ALD 1 ; [2003] HCA 60 at [57]–[58] ; see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ; 231 ALR 592 ; 93 ALD 300 ; [2006] HCA 63 at [47] and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ; 231 ALR 340 ; 92 ALD 513 ; [2006] HCA 53 at [40] .
[37] The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
[39] It seems to me that the circumstances of this case were not such as to require the tribunal to make some further inquiry about the documents submitted by the appellant before making a decision on the application for review. The circumstances in which such inquiry is required are limited to rare or exceptional cases such as were considered by Kenny J in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; 242 ALR 455; 97 ALD 112; [2007] FCA 1318 and by Allsop J, as his Honour then was, in SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14; 98 ALD 270; [2007] FCA 1592.
Further, insofar as Ground 1 may be taken as suggesting, as asserted in the Particulars, that the Tribunal found that the documents relied on by the Applicant were “not genuine” or “fraudulent”, the simple fact of the matter is that the Tribunal made no findings at all in relation to documentation provided by the Applicant.
Finally, the Applicant in his Particulars submitted that the Tribunal committed legal error by failing to consider his documents as required by s.424(1) of the Act. That section permits the Tribunal to request information from the Applicant or from third parties but does not create an obligation to do so and there is nothing in the circumstances of this case that would have meant that the Tribunal was obliged to have requested information from the Applicant or a third party.
Ground 1 accordingly fails to establish jurisdictional error.
Grounds 2, 3, 4 and 5
All of these Grounds allege breach of procedural fairness by way of apprehension of bias and breach of natural justice.
Ground 2
Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision maker such as the Tribunal may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.
Actual Bias
Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] as follows:
[72]… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:
[97]The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 (Michael Wilson & Partners) at 437-438 [33].
Apprehended Bias
On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners at 437 [32].
Consideration of Claims of Bias and Procedural Fairness
In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.
The Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment, actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
Further, the transcript of the hearing before the Tribunal does not support a finding that the Tribunal was actually biased in any way, or give rise to any reasonable apprehension of bias on the part of the Tribunal member. Relevant matters at the hearing are discussed further below.
In my view Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground also fails to establish jurisdictional error.
In his Outline of Submissions referable to this Ground the Applicant alleged actual bias or apprehension of bias because “…the Tribunal cruelly criticized about the applicant’s marital life and about his wife’s whereabouts”. However, consideration of TP 22 of the transcript of the Tribunal hearing reveals that the Tribunal put to the Applicant the straightforward proposition that if he had lost contact with his wife for two years then it could be inferred that his marriage was over. The relevant exchange was as follows:
MR NORMAN: So I think you know you're no longer married because your marriage has now finished. Yes or no.
THE INTERPRETER: I haven't divorced her yet so, obviously, I will find her.
MR NORMAN: Okay. And I understand you have or have not divorced your wife? I'm sorry .....
THE INTERPRETER: Okay. No. No. I haven't divorced her.
MR NORMAN: Not.
THE INTERPRETER: And she not either so probably, she is waiting for me as well.
MR NORMAN: Well, I put to you that if you have lost contact with her for around two years, then your marriage is over ..... sorry. No, you please continue.
THE INTERPRETER: ..... but I've got feelings in my heart.
MR. NORMAN: .....
THE INTERPRETER: Obviously, I'm going to find her. I will.
MR NORMAN: I understand what you have said. Now, if it wasn't for your marriage, it appears there is you would have no there would no - you would be safe and it would be reasonable for you to, again, return to Dhaka.
In my view nothing in this exchange indicates either actual bias or could give rise to an apprehension of bias. There was no cruel criticism of the Applicant’s marital situation.
Further, s.423A of the Act merely requires the Tribunal to draw an unfavourable inference on the credibility of an applicant if the Tribunal is satisfied that such applicant does not have a reasonable explanation as to why a particular claim to protection, and evidence in support of that claim, was not raised earlier before the Delegate. Section 430(1) prescribes the required contents of a Decision Record of the Tribunal. In my view, the Applicant has entirely failed to establish that he has been denied natural justice and procedural fairness by the Tribunal under, pursuant to or in breach of those sections of the Act.
Ground 3 fails to establish jurisdictional error.
Ground 4
First, there is no basis in either the Decision Record of the Tribunal or the transcript of the Tribunal hearing which could give rise to an inference that the Tribunal member was “preoccupied” or had prejudged the application for review, or that there was any cutting and pasting from the Decision Record of the Delegate.
In support of this Ground, both in his written Outline of Submissions and in oral submissions at the hearing before me, the Applicant complained about the process of him being sworn to tell the truth at the commencement of the Tribunal hearing.
The transcript of the Tribunal hearing records that the interpreter affirmed to interpret well and truly and that the Applicant was sworn to tell the truth. The actual words of the affirmation and oath are not recorded.
In the first sentence of [47] of its Decision Record the Tribunal stated:
At the hearing the applicant confirmed that he was “not very religious”. However, he was still a practising Sunni Muslim and swore an oath on the Koran at the commencement of the hearing.
In his Outline of Submissions referable to Ground 4 the Applicant submitted as follows:
ln this at no point the Tribunal has offered a different choice (Affirmation or Oath) to the applicant. In fact the applicant was reluctantly compelled to swore on Koran when he was offered ‘Only’ one choice. The applicant refers to the transcript (para: 5 and 10 of page 2). In fact the applicant was denied even his rights from the very beginning of the hearing.
At the hearing I enquired of the Applicant, in relation to being sworn, what was the real point was that he was seeking to make. It could hardly be thought that he would have wished to have sworn on the Christian Bible. The Applicant maintained that he was “reluctantly compelled” to swear on the Koran. However, inconsistently with this, he informed me at TP 11.22 that he chose to swear on the Koran because he is a Muslim and at TP 12.10 –38 the following exchange took place:
HIS HONOUR: Well, that’s got nothing to do with what we’re just talking about. I want to get this matter set in concrete. The position is this, is it not? He attended the tribunal hearing, correct?
THE INTERPRETER: Yes.
HIS HONOUR: He was asked to tell the truth and the whole truth and nothing but the truth?
THE INTERPRETER: Yes.
HIS HONOUR: Or words to that effect?
THE INTERPRETER: Yes, your Honour.
HIS HONOUR: And he swore to tell the truth on the Koran, the holy book of his religion?
THE INTERPRETER: Yes, your Honour.
HIS HONOUR: He was not asked to swear the truth on the Bible or any other holy book?
THE INTERPRETER: He was given a choice which holy book he was to swear in, and he----
HIS HONOUR: Yes. And he chose, naturally, to swear it on the Koran.
THE INTERPRETER: Yes, your Honour.
Accordingly, there is nothing in the issue relating to the swearing-in of the Applicant at the commencement of the Tribunal hearing which has any tendency to establish jurisdictional error.
Ground 4 fails to establish jurisdictional error.
Ground 5
This Ground asserts that the Tribunal did not afford procedural fairness to the Applicant and did not give him an opportunity to present his case in a correct manner. At the hearing this Ground was amplified by the Applicant submitting that at the hearing before the Tribunal he was not given any hearing and was not given a chance to put his points because the Tribunal told him to answer “in yes or no”. He then asserted he was not given a hearing but was just thrown out of the Tribunal room and had to answer “in yes or no”. He claimed he “just got stopped” when he wanted to say something to the Tribunal member.
He further criticized the Tribunal for conducting the hearing in 90 minutes and then delivering its Decision Record “very quickly” in eight or nine days.
This Ground also fails. The transcript of the Tribunal hearing establishes that at its commencement the Tribunal member said at TP 3.7 – 10 as follows:
MR NORMAN: Now, if you do not understand anything that I ask or anything that I say, do please ask me to repeat and I will rephrase myself. And if you have any other problems through the course of the hearing, just raise your hand and tell me what the problems are and we will see if we can fix them as they arise.
The transcript then establishes that the Tribunal treated the Applicant with courtesy and politeness and gave him every reasonable opportunity to give evidence and present his arguments. At one point the Applicant obviously did raise his hand, and the Tribunal member said as follows at TP 8.19 – 20:
MR NORMAN: Okay. I understand what you've said. Now, you put your hand up earlier to say something and I ..... I interrupted you. What did you want to say?
At TP 5.7 – 16 the transcript contains the first request for a yes or no answer:
MR NORMAN: Have you got any evidence from your psychologist with you? Yes or no. I'm sorry. Have you got any written evidence from your psychologist with you today, yes or no?
MR ALI: No.
THE INTERPRETER: No.
MR NORMAN: Now, my apologies for having interrupted you. You wanted to explain something. What is it you wanted to explain?
At TP 9.20 – 35 the Tribunal member asks for a yes or no answer in the following context:
MR NORMAN: So for the six or so years before you left Bangladesh, the only place you worked at was in the construction industry. I'm sorry. Is that yes or no? I don't mind if it's no.
THE INTERPRETER: Yes.
MR NORMAN: I just want to clarify your response.
THE INTERPRETER: Yes.
MR NORMAN: So that is correct? Okay. Now, you do want to explain something so please tell me what that was.
THE INTERPRETER: Yes. I would like to know about the documents that I have lost I have submitted to the reception last - 19 February. So ..... talk about those documents, have you got those documents with you?
Further examples of the Tribunal member giving the Applicant an express invitation to give evidence and present arguments include the following:
MR NORMAN: Okay. Now, did you want to explain something further? (TP 10.23)
MR NORMAN: ..... I'm not sure I understand your response. Do you want to explain it to me now? (TP 10.46 – 47)
MR NORMAN: … So I'm going to say whenever they ask you but you don't attend regularly. So what I'm going to now put to you -that's all right. Please – my apologies for interrupting. Please continue. (TP 13.23 – 25)
The Tribunal hearing finished with the Tribunal member informing the Applicant that he understood what he had said and did not have any further questions and asking the Applicant whether there was anything else which the Applicant wished to tell him (TP 25.5 – 6).
The final relevant passage at TP 25.21 – 29 is as follows:
MR NORMAN: Do you wish to say anything else?
THE INTERPRETER: No.
MR NORMAN: Okay. I know propose to finish the hearing. What will happen now is that I need to go away and think about the claims and write my decision. I cannot tell you how long it will take me to write this decision but I hope to finalise it as soon as possible. Apart from that, thank you very much for coming today. Mr Interpreter, thank you for your assistance today.
My reading of the transcript of the Tribunal hearing establishes, to my satisfaction, that the Tribunal did not excessively interrupt the Applicant or often ask him to confine his answers to a yes or no response. The Tribunal did not impede or obstruct the Applicant from putting forward his submissions and arguments. He was not denied a meaningful opportunity to present his case to the Tribunal and was not overborne or intimidated by the Tribunal member. There was no excessive interruption by the Tribunal member, and if he did interrupt he then went back and by an open question invited the Applicant to continue.
The following passage from the judgment of the Full Court of the Federal Court of Australia in ‘T v Minister for Immigration & Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [21] is apposite:
[21]The hearing before the Tribunal is “semi-inquisitorial”: Durairajasingham v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 469 per Davies J. It is not of itself indicative of bias, in that context, that the decision-maker should on occasions interrupt answers which are not responsive to the question asked, or persist in asking questions which have not been answered or inadequately answered. Ultimately, as the cases indicate, the question is whether the decision-maker has pre-judged the visa application so that the decision maker was not open to persuasion. Indeed, it would only be in a fairly extreme case that such conduct by a judge sitting in a court of law would legitimately be open to a complaint of actual or even apparent bias.
The Applicant’s criticism of the length of the Tribunal hearing and the timing of the Tribunal’s delivery of its Decision Record is also unfounded and does not establish jurisdictional error. There is no suggestion from the transcript that the hearing was inappropriately shortened or truncated.
Celerity by the Tribunal in delivering its decision is also not to be criticised and is consistent with the Tribunal’s objective prescribed by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) of providing a review that is fair, just, economical and quick.
Ground 5 fails to establish jurisdictional error.
Disposition
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court on 18 November 2016 is to be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 22 February 2018
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