AXD17 v Minister for Immigration
[2017] FCCA 2081
•9 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXD17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2081 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan as an apostate – applicant not believed – whether the Tribunal failed to base its credibility findings on logically probative evidence, misapplied the law, failed to ask the correct questions, took into account irrelevant considerations or failed to take into account relevant considerations considered – whether the Tribunal decision is vitiated by an apprehension of bias considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 414, 473DA, 473DB, 473DC, 473DD |
| Cases cited: AMA16 v Minister for Immigration & Ors [2017] FCCA 303 Browne v Dunn (1893) 6 R 67 |
| Applicant: | AXD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 125 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 August 2017 |
| Date of last submission: | 22 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as further amended in Court on 30 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 125 of 2017
| AXD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 February 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant claims to be a citizen of Afghanistan. He applied for a protection visa on 19 May 2016. The applicant claimed to have left Afghanistan to be with his wife in Australia and because he feared persecution from radical Muslims who suspected that he had rejected Islam. He claimed to have been raped for that reason by a group of men in Kabul in May 2011.
In Australia the applicant converted to Christianity. He fears he will be charged with apostasy, and will face serious punishment, if he returns to Afghanistan.
The applicant claimed that he could not seek protection or relocate in Afghanistan, as the authorities condone persecution of apostates and there are radical Muslims throughout the country.
The applicant had arrived in Australia in July 2011 as the holder of a provisional partner visa. His sponsor notified the Minister’s Department in November 2011 that the relationship had ceased. The applicant nevertheless pursued his claim for a permanent partner visa, on the basis that he had been the victim of family violence. This was not accepted by the Department or the former Migration Review Tribunal. That Tribunal decision was reviewed by this Court and remitted for re-hearing, but the same decision was made after remittal.
In November 2014, the applicant was charged with sexual offences. His bridging visa was cancelled and he was taken into immigration detention. In April 2015, the applicant was convicted of six charges of indecent assault and one charge of an indecent assault with a child under 16.
The delegate refused the protection visa application on 12 October 2016. The delegate did not accept that the applicant had converted to Christianity. She relied on information from the detention centre which indicated that the applicant still identified as a Muslim. The delegate also relied upon the lateness of the claim for protection and its inconsistency with previous claims made to the Minister’s Department concerning why the applicant could not return to Afghanistan. Although the applicant had been baptised on 15 August 2016 and had produced letters of support from Christian ministers, the delegate gave little weight to those matters, and placed weight on the applicant’s inability to name the churches he attended or any priest or minister who worked there. The delegate gave no weight to medical reports concerning the alleged rape of the applicant, finding that the documents were not genuine.
The applicant sought review by the Tribunal. On review he maintained his claim of fearing return to Afghanistan because of his conversion to Christianity. He provided some written submissions and evidence on apostasy in Afghanistan, as well as a letter of support from a Uniting Church minister.
The Tribunal did not accept that the applicant was a genuine convert, or that he would practice Christianity upon his return to Afghanistan. It also did not accept that anyone in Afghanistan would become aware of his Christian activities in Australia so as to expose him to a risk of harm. The decision under review was therefore affirmed.
The current proceedings
The present proceedings began with a show cause application filed on 3 March 2017. The applicant sought leave at the trial of this matter on 30 August 2017 to amend his application. I granted that leave. The applicant now relies upon a further amended application annexed to an affidavit of the applicant made on 11 August 2017. The grounds in that application are:
Ground 1:There was not a sufficient logical or evidentiary basis for the Tribunal to find the applicant was not a “genuine” Christian after finding the applicant was baptised, attended Christian classes and church services
1.There was not a sufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a ‘genuine’ Christian at [15], [18], [19], [23], [24] and [26] of the decision record with regard to the refugee criterion and at [29] of the decision record with regard to the complimentary criterion, in light of evidence submitted to the Tribunal by the applicant particularised below from (1)(a)-(b) and after the Tribunal accepted the applicant was baptized, attended Christian classes and church services at [26] and [29] of the decision record.
Particulars
(a)From [10]-[11] of the decision record, the applicant is a citizen of the Islamic Republic of Afghanistan (Afghanistan). The applicant claims protection in the Commonwealth of Australia (Australia) based on his religious conversion from Shia Islam to Christianity, which is prohibited in Afghanistan and where apostasy carries the death sentence.
b)The applicant provided to the Tribunal the following in support of his religious conversion:
i. application for a protection visa - Form 866C, page 71 of the Court Book;
ii. Letter from Prison Fellowship Australia, page 122 of the Court Book;
iii. Letter from St Matthew’s Anglican Parish of Guildford, page 123 of the Court Book;
iv. Email from YHIDC to DIBP outlining religious events attended by applicant, page 132-137 of the Court Book;
v. Certified copy of the applicant’s baptism certificate, page 142-143 of the Court Book;
vi. Bundle of photographs and documents of the applicant’s baptism, page 145-159 of the Court Book;
vii. Letter from Rev. Corina van Oostende, Minister of the Word in the Uniting Church, Northam, page 225-226 of the Court Book;
c)There was therefore an insufficient logical or evidentiary basis:
i. for the Tribunal to find the applicant was not a “genuine Christian convert” at [15] of the decision record.
ii. for the Tribunal to give “limited weight to Rev van Oostende’s opinion of the applicant’s sincerity in converting, because it finds she does not know the applicant well” at [17] of the decision record.
iii. for the Tribunal to give “little weight to her opinion that the applicant is a genuine Christian” at [18] of the decision record.
iv. for the Tribunal to give the “letters weight only as evidence the applicant attended Christian groups in 2016, and gives little weight to the opinions of the authors that the applicant is genuinely Christian” at [19] of the decision record.
v. for the Tribunal to find that “[g]iven his lack of knowledge of any details associated with the churches, the Tribunal finds that if he did go into any churches, it was merely as a quiet place to sit, rather than evidence of any real engagement with Christianity” at [23] of the decision record.
vi. for the Tribunal to find that the applicant has not “rejected Islam, given his behaviour until recently in detention in identifying himself as Muslim” at [24] of the decision record.
vii. for the Tribunal to give the “lack of past Christian related activity weight in reaching the conclusion that his engagement with Christianity began only in preparation for applying for a Protection visa” at [25] of the decision record.
viii. for the Tribunal to find that the “applicant has attended Christian classes in detention, been baptised, and professed to be Christian, otherwise than for the purpose of strengthening his claim to fear persecution as a Christian convert” with regard to the refugee criterion at [26] of the decision record.
ix. for the Tribunal to find that the applicant has not “genuinely converted to Christianity” with regard to the complementary criterion at [29] of the decision record.
Ground 2:Misapplication of law or failure to ask the correct question regarding the appellants’ conversion from Islam to Christianity under section 5J(6) of the Migration Act 1958 (Cth) and the refugee criterion
2.There was not a sufficient logical or evidentiary basis for the Tribunal to find at [26] of the decision record that the applicant's conduct in Australia was “otherwise” than for the purpose of strengthening his refugee claims. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law with regard to section 5J(6) of the Migration Act 1958 (Cth).
Particulars
a)At [26] of the decision record, the Tribunal was not “satisfied that the applicant has attended Christian classes in detention, been baptised, and professed to be Christian, otherwise than for the purpose of strengthening his claim to fear persecution as a Christian convert.” The Tribunal made “this finding based on the lack of credible evidence of Christian activity until 2016, the failure to raise any claim of fear of harm for apostasy prior to May 2016, the credibility of his claimed conversion when he was also identifying as a Muslim, and the timing of his interest in Christianity after his application for the Partner visa was dismissed. Therefore s.5J(5) applies and this conduct must be disregarded.”
b)As particularised at ground one, the testimony and evidence submitted to the Tribunal demonstrated that there were multiple reasons for the applicant's conversion from Shia Islam to Christianity, including spiritual nourishment, religious education, the creation of friendships and a sense of community.
Ground 3:Misapplication of law or failure to ask the correct question regarding the appellants’ conversion from Islam to Christianity under the complementary criterion
3(a):The Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the applicant’s conversion from Shia Islam to Christianity with regard to the complementary criterion. The correct question before the Tribunal was not whether or not the applicant’s conversion from Shia Islam to Christianity was “genuine” or ‘disingenuous” for the purposes of the complementary criterion. Rather, the correct question before the Tribunal was strictly whether the applicant faces a real risk of harm under the complementary criterion, given apostasy is punishable by death in Afghanistan per se, irrespective of whether the conversion is genuine or disingenuous.
3(b):Further, it was an irrelevant consideration whether the applicant’s conversion from Shia Islam to Christianity was genuine or disingenuous for the purposes of the complementary criterion, given apostasy is punishable by death in Afghanistan per se.
3(c):As a consequence, the Tribunal erred at [29] by simply adopting the reasoning under the refugee criterion and by failing to provide adequate reasoning regarding apostasy and the complementary criterion.
Particulars
a)At [29] of the decision record:
The Tribunal has considered whether the applicant faces a real risk of significant harm for having been baptised and attended Christian groups in Australia. The Tribunal has had regard to country information from DFAT, referred to above, on the treatment of apostates in Afghanistan. For the reasons given above, the Tribunal does not accept the applicant has genuinely converted to Christianity. It follows therefore the Tribunal does not accept he will seek to practice Christianity in Afghanistan. For the reasons given above, the Tribunal also does not accept the claim the applicant has rejected Islam, and therefore does not accept he faces a real risk of significant harm for this reason. The Tribunal considers the risk of the authorities in Afghanistan knowing of his baptism and Christian activities in Australia is remote. The Tribunal finds he will not identify or act as a Christian in Afghanistan and therefore does not face a real risk of significant harm for this reason.
Ground 4:Irrelevant considerations - conflation of the applicant’s criminal convictions with his conversion to Christianity
4.The Tribunal erred by taking into account irrelevantly, the applicant’s criminal convictions vis-à-vis his Christian conversion and the evidence given by witnesses in support of his conversion. The fact that the applicant was convicted of sexual offences was not probative of whether the applicant was truthful, had genuinely converted to Christianity, what weight should be given to witness testimony or whether he faced serious or significant harm on the grounds of apostasy in Afghanistan. The manner in which the Tribunal dealt with the criminal convictions was prejudicial and irrelevant. It follows, on normal principles, that the decision of the Tribunal was affected by an irrelevant consideration or a reasonable apprehension of bias.
Particulars
a)On the 19 November 2014, the applicant was arrested and charged with sexual offences. On 19 December 2014, the applicant's Bridging Visa A was cancelled under cancellation power: s116(1)(g) because a ground appears at Reg 2.43(1)(p)(ii) which states: in the case of the holder of a Subclass 050 (Bridging(General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa - the Minister is satisfied that the holder: has been charged with an offence against a law of the Commonwealth, a state, territory. The applicant was consequently placed into Immigration detention where he continues to remain, see page 165 [2] of the Court Book.
b)On the 28 April 2015, the applicant was convicted of seven (7) charges being six (6) charges of indecent assault and one (1) charge of indecent act with child under 16. The applicant was found guilty at Melbourne Magistrates Court and he was remanded in custody until 30 April 2015 to be assessed for a community corrections order. On 30 April 2015, the applicant was released from custody due to time served and was transferred and detained at the Immigration Detention Centre in Melbourne. The Applicant lodged for a protection visa on 18 May 2016 whilst in Immigration Detention centre, see page 165 [3] of the Court Book.
c)At [10] of the decision record, the Tribunal observed “[i]n April 2015 the applicant was convicted of seven charges of indecent assault and one charge of an indecent act with a child under 16. He remains in detention.”
a)At [17]: the Tribunal observed:
The Tribunal called Rev van Oostende [a Uniting Church minister] during the hearing to take oral evidence from her. She confirmed she knows the applicant from his attendance at the Christian group she runs in the detention centre. When asked what she knows about the applicant personally, the witness knew nothing of his past. Her view, based on her observations of him at the meetings, was that he would be a good citizen for Australia. Of concern for the Tribunal was that she had no knowledge he had been charged and convicted of criminal offences in Australia. As put to the applicant at hearing, the Tribunal gives limited weight to Rev van Oostende’s opinion of the applicant’s sincerity in converting, because it finds she does not know the applicant well. In response to this, the applicant said that at the meetings they only study the bible and the rituals of the church. They don’t discuss ‘deep matters of life’.
b)At [18]: the Tribunal observed:
The Tribunal finds Rev van Oostende’s opinion of the applicant is based on her knowledge of the applicant’s regular attendance at the Christian group and his apparent participation in the group. However, it is not based on personal counselling with the applicant about his reasons for wanting to be Christian, and what it means to live as a Christian. The Tribunal acknowledges ‘confession’ is not a part of the Uniting Church practice, as it is in the Catholic Church. However, the Tribunal considers that the applicant's recent past, particularly his convictions and sentencing, would have been part of a discussion if he and Rev van Oostende had ever talked about the applicant’s personal beliefs and how he is living or wants to live a Christian life The Tribunal finds Rev van Oostende knows the applicant merely as one of the detainees who regularly attends her group, and does not know him well enough to give an informed opinion on his motivations and sincerity in claiming to be Christian. Tribunal gives little weight to her opinion that the applicant is a genuine Christian. The Tribunal gives weight to the letter and oral evidence only as evidence the applicant is attending Christian groups in detention.
c)At [19]: the Tribunal observed:
The applicant has also provided letters of support from David Shaw of the Prison Fellowship WA Detention Centre Ministry Team, and Rev Katrina Holgate and Jonathan Holgate of the St Matthews Anglican Church. Both letters state they know the applicant from his attendance at Christian groups in the detention centre. Rev Katrina Holgate expresses the opinion that the applicant is ‘a good man’ who is ‘actively Christian’. There is no mention in any of the letters of the applicant's criminal convictions. The Tribunal gives these letters weight only as evidence the applicant attended Christian groups in 2016, and gives little weight to the opinions of the authors that the applicant is genuinely Christian.
Ground 5.Relevant considerations - whether the applicant faces a real risk of harm due to the criminal convictions
5.The Tribunal committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of those claims, raised by the evidence, albeit not expressly by the applicant, with regard to whether the applicant faces a real risk of harm due to his membership of a particular social group as a “convicted criminal”, “convicted sex offender” or “convicted child sex offender” under the refugee or complementary criteria.
Particulars
a)At [10] of the decision record, the Tribunal observed “[i]n April 2015 the applicant was convicted of seven charges of indecent assault and one charge of an indecent act with a child under 16. He remains in detention.”
b)It was therefore an integer of the applicant’s claims, raised by the evidence, albeit not expressly by the applicant, that he faces a real risk of harm based on his membership of a social group as a “convicted criminal”, “convicted sex offender” or “convicted child sex offender”.
c)The Tribunal therefore failed to consider relevantly at [24] or [27] whether the applicant faced a real risk of harm as convicted sex offender or child sex offender under the refugee criterion.
d)Similarly, the Tribunal failed to consider relevantly from [28] to [31] whether the applicant faced a real risk of harm as convicted sex offender or child sex offender under the complementary criterion.
(errors in original)
I have before me as evidence the court book filed on 18 May 2017.
Both the applicant and the Minister filed written submissions and also made oral submissions through their counsel at the trial of the matter.
I provided the applicant and the Minister with the opportunity to make further submissions within two weeks of the trial. Both took up that opportunity, albeit outside that time period. I have nevertheless considered the additional submissions.
Consideration
Grounds 1 – 3 address the applicant’s challenges to the Tribunal’s finding that he was not a genuine Christian following his claimed conversion from Islam to Christianity. Grounds 4 and 5 address the applicant’s challenges to the Tribunal decision arising from his criminal convictions in Australia.
Subject to my observations below, I accept the Minister’s submissions concerning these grounds of review.
Ground 1
In his first ground of review, the applicant contends that there was not a sufficient logical or evidentiary basis for the Tribunal to conclude that the applicant was not a genuine Christian.
In order to succeed on a no evidence challenge, it must be demonstrated that there was “not a skerrick of evidence” available to justify the finding[1].
[1] Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575]
According to Mason CJ in Australian Broadcasting Tribunal v Bond[2]:
So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
[2] (1990) 170 CLR 321 at 356
To similar effect are the statements of Crennan and Bell JJ in SZMDS v Minister for Immigration[3], where their Honours said that:
[w]hilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[3] (2010) 240 CLR 611 at 649-650 [135]
Contrary to the assumption that underlies this ground of review, the Tribunal was not “bound” to find that the applicant was a genuine Christian, even if it was nevertheless satisfied that the applicant had attended church or had undergone a baptism ceremony.
In considering whether the applicant was a genuine Christian, the Tribunal undertook an evaluative exercise, having regard to all the facts and circumstances that were before it. The Tribunal’s overall conclusion in this regard was based on various considerations, which were set out at some length by the Tribunal in its reasons.
The individual findings that led the Tribunal to reject the applicant’s claim were as follows:
a)the Tribunal placed little weight on letters of support provided by various persons (including the Uniting Church minister referred to at [18] and the individuals identified in [19] of its reasons[4]) given that those persons did not appear to know the applicant well and were only able to verify that he had attended Christian groups in a detention centre. That those persons did not know the applicant well was exemplified by their lack of knowledge that the applicant had been convicted of various offences[5] ;
b)the applicant only belatedly claimed (in 2016) that he feared persecution in Afghanistan because he was a Christian and had previously claimed (in April 2015) that he feared persecution in Afghanistan because he had worked for United States authorities. The applicant had also stated at this time that he was a Shia Muslim[6]; and
c)the Tribunal did not accept the applicant’s claim that he had begun attending churches in Sydney and in Melbourne almost as soon as he arrived in Australia. It noted that the applicant was unable to name any churches that he had attended, and was unable to give details of the denomination of those churches or the names of the priests or ministers involved in those churches[7].
[4] CB 248
[5] CB 248 at [16]-[19]
[6] CB 248-249 at [20]-[22]
[7] CB 249 at [23]
In my view, the findings referred to above do not leave open any suggestion that the Tribunal’s conclusion that the applicant was not a Christian lacked a logical or evidentiary basis.
For completeness, if it were to be so alleged, it also cannot be suggested that the Tribunal improperly set itself as the arbiter of doctrine with respect to religion in the sense discussed by the Full Federal Court in WALT v Minister for Immigration[8].
[8] [2007] FCAFC 2 at [28]-[30]
Ground 2
In his second ground of review, the applicant contends that the Tribunal’s conclusion that the applicant’s conduct in Australia was undertaken for the purpose of strengthening his refugee claim lacked a sufficient logical or evidentiary basis. The Tribunal, in consequence, is said to have misapplied or misunderstood the operation of s.5J(6) of the Migration Act 1958 (Cth) (Migration Act).
Section 5J(6) is in following terms:
In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
(emphasis in original)
As noted above, the Tribunal was not “bound” to accept the contention that the applicant’s conduct in Australia was genuine. The Tribunal was entitled, as it did, to have regard to all the circumstances (including those summarised at [22] above) in assessing the applicant’s conduct in Australia. When regard is had to those matters, and particularly to the fact that the applicant gave very little detail of his involvement with churches in Australia, it becomes apparent that the Tribunal’s conclusion did not lack an evidentiary or logical basis. In my view, the applicant’s real complaint in this regard constitutes an expression of dissatisfaction with a finding made by the Tribunal.
Ground 3
In his third ground, the applicant takes issue with the Tribunal’s complementary protection findings in relation to his claim that he feared harm in Afghanistan on account of being an apostate.
The applicant’s contention in this regard must be rejected. The Tribunal did not accept that the applicant would practice Christianity in Afghanistan or that anyone there would become aware of his activities in Australia, which included his baptism and his involvement with Christian groups. Having made these findings, the factual basis for his claim to fear harm fell away. Furthermore, while there is considerable overlap between the Tribunal’s findings in respect of s.36(2)(a) (the Refugees Convention criterion) and s.36(2)(aa) (the complementary protection criterion), this is understandable and to be expected, given the identical factual basis underpinning the claims based on each criterion.
Ground 4
In his fourth ground, the applicant alleges that the Tribunal fell into jurisdictional error by taking into account the applicant’s criminal convictions when considering whether he was being truthful about his conversion to Christianity. The applicant also alleges that the manner in which the Tribunal approached the matter also leads to the conclusion that the Tribunal’s decision is encumbered by apprehended bias.
The applicant’s contention in this regard is based on a misreading of the Tribunal’s reasons. The Tribunal did not conclude that the applicant’s convictions were relevant to an assessment of his credibility. Rather, in concluding that little weight should be placed on the letters of support that were provided, the Tribunal noted that it would be expected that persons who purport to know the applicant well would also be aware of his criminal convictions.
In his additional submissions, the applicant contends that the Tribunal erred by placing little weight on the letter of support and oral evidence of the Uniting Church minister. It is not clear from the Tribunal’s decision record whether it put the applicant’s criminal record to the minister. However, the Tribunal concluded from the minister’s silence on, or lack of knowledge of, the applicant’s convictions that she did not know the applicant well and therefore her opinion regarding the genuineness of his conversion merited little weight.
There are two issues which arise. The first is whether the use of the criminal convictions by the Tribunal gives rise to an apprehension of bias. The second is whether the Tribunal was permitted to use the information in the way it did. I accept the Minister’s submissions on those issues.
The apprehension of bias allegation falls to be determined on general principles. In this regard, three points should be made.
First, having regard to the entirety of the factual and statutory matrix, the Tribunal’s possession of information concerning the applicant’s criminal convictions does not lead to the conclusion that a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind to the resolution of the question he or she was required to decide[9]. This is particularly pronounced given that the applicant contends in Ground 5 that the Tribunal should have had regard to his criminal convictions in determining whether he faced harm in Afghanistan.
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]
The applicant’s real contention is that the Tribunal was permitted to have regard to his criminal convictions only insofar as they assisted his case. I reject that contention.
The applicant contends that the criminal convictions were relevant to the issues before the Tribunal. Given this contention, the claim of bias based on the Tribunal having regard to them falls away. The only question left is the extent to which they were relevant. I deal with that below and further in relation to Ground 5.
Secondly, in determining whether an apprehension of bias has arisen, it is not enough just to look to the Tribunal’s reasons. In particular, it is not sufficient to look to [16]-[19][10], where the Tribunal had indicated that little weight should be given to the letters of support that were provided, given that the authors of the letters, as they were unaware of the applicant’s criminal convictions, did not seem to know the applicant very well. This is because, as the High Court observed in Michael Wilson & Partners Ltd v Nicholls[11], it will usually be unhelpful to look to the reasons of a decision-maker to confirm an apprehension of bias because, of necessity, at the time those reasons are given, the decision maker has made up his or her mind.
[10] CB 248
[11] (2011) 244 CLR 427 at 446 [67]
Thirdly and in any event, the Tribunal’s reasons do not assist the applicant. The Tribunal did not use the applicant’s criminal convictions to impugn the applicant’s credibility. Rather, it had regard to the convictions for a much more limited purpose, as outlined above. There is nothing at [16]-[19] of the Tribunal’s reasons that leads me to conclude that a fair‑minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question it was required to decide.
Furthermore, although the applicant seeks to draw support from AMA16 v Minister for Immigration & Ors[12], that decision arose in a different factual and statutory context and has no bearing on the issues in this case.
[12] [2017] FCCA 303; affirmed on appeal in Minister for Immigration v AMA16 [2017] FCAFC 136
In that regard, I accept the Minister’s supplementary submissions as follows.
In Webb v The Queen[13], Deane J observed that the area covered by the doctrine of disqualification for reason of the appearance of bias encompasses at least four distinct, although sometimes overlapping, categories. Those categories are[14]:
a)disqualification by interest;
b)disqualification by conduct;
c)disqualification by association; and
d)disqualification by extraneous information.
[13] (1994) 181 CLR 41 at 74
[14] In Ebner at 348-349 [24], Gleeson CJ, McHugh, Gummow and Hayne JJ said that it was unnecessary to rule upon the comprehensiveness of these four categories, although their Honours described them as a “convenient frame of reference”.
AMA16 involved category (d), “disqualification by extraneous information”, and arose in the following context.
In a decision given on 23 February 2017, this Court had found that a decision dated 5 January 2016 by the Immigration Assessment Authority (Authority) was vitiated by apprehended bias.[15] The apprehension of bias arose from the Authority having been provided by the Secretary of the Department with what Griffiths J in the Full Federal Court described as “extraneous and prejudicial information”[16]. The information in the documents that were provided (Criminal Charges Information) stated that the visa applicant had been charged in Melbourne on 17 July 2015 with assaulting a female in indecent circumstances while being aware that the person was not consenting. It also stated that the charge of indecent assault had a court date of 11 September 2015 at the Melbourne Magistrates’ Court.
[15] AMA16
[16] [2017] FCAFC 136 at [6]
The Authority is a body that is part of the Migration and Refugee Division of the Tribunal. It conducts “fast track reviews”, the scheme for which is provided in Part 7AA of the Migration Act. The way in which the Authority is to conduct a review is set out in Division 3 of Part 7AA of the Migration Act (ss.473DA-473DF).
In conducting a review, the Authority’s procedural fairness obligations are limited, relevantly, to providing a visa applicant with particulars of new information where that new information “would be the reason, or a part of the reason, for affirming the fast track reviewable decision” [17]. The limited nature of the Authority’s procedural fairness obligations was an important consideration when determining whether a reasonable apprehension of bias had arisen in AMA16.
[17] Section 473DE
The primary judge concluded that the provision of the Criminal Charges Information by the Secretary to the Authority gave rise to a reasonable apprehension of bias on the part of the Authority.
The primary judge’s reasoning was as follows[18]:
a)first, there was no dispute that the Criminal Charges Information was provided by the Secretary to the Authority;
b)secondly, the Criminal Charges Information could not have been relevant to any issue the Authority had to decide, and was not probative of whether the visa applicant was truthful or whether he faced serious or significant harm in Iran;
c)thirdly, in the absence of an affidavit from the Secretary, the primary judge was not prepared to infer that the Secretary considered the Criminal Charges Information to be relevant to the review. Accordingly, the primary judge concluded that the Secretary had provided the Criminal Charges Information to the Authority without any statutory warrant;
d)fourthly, because the natural justice hearing rule had been excluded, and there was nothing of direct relevance in Part 7AA, the Authority was not required to disclose the Criminal Charges Information to the visa applicant and seek his comments;
e)fifthly, although the natural justice hearing rule was excluded, it was common ground that apprehended bias was not excluded; and
f)sixthly, applying “normal principles”, the decision of the Authority was affected by a reasonable apprehension of bias.
[18] See AMA16 at [23]-[40], summarised by Griffiths J at [2017] FCAFC 136 at [34]-[39]
The Full Federal Court found that the primary judge did not fall into appellable error in reaching her finding. The principal reasons were given by Griffiths J, with whom the other members of the Full Court generally agreed.
In dismissing the appeal, Griffiths J concluded that “given the highly prejudicial nature of the material, the fair-minded lay observer, acting reasonably, might apprehend that the IAA may have been affected by the material, even subconsciously” [19].
[19] [2017] FCAFC 136 at [78]
This statement, however, should be seen in its proper context. What was of concern to Griffiths J (and indeed the primary judge)[20] was not just that the Criminal Charges Information was “highly prejudicial” but that the visa applicant had not been given an opportunity to comment upon it. This is apparent from Griffiths J’s comments[21], where his Honour observed that:
… On the evidence before the Court, the IAA took no steps to involve the first respondent in its decision-making concerning the Departmental communications. In these circumstances, the IAA exposed itself to the risk that, on a judicial review, apprehended bias might be established.
(emphasis added)
[20] [2017] FCCA 303 at [35]
[21] at [84]
Contrary to what the applicant contends, AMA16 does not stand for the proposition that a reasonable apprehension of bias arises whenever a decision-maker is given, and takes into account, information such as that relating to criminal convictions[22] .
[22] See also Dowsett J’s comments at [3]
Rather than standing for any general proposition, AMA16 illustrates the highly fact and context-specific nature of apprehended bias findings. At its highest, AMA16 demonstrates that an apprehension of bias might arise where a reasonably informed bystander fears, in light of all the circumstances of the case (including the relevant statutory regime), that a decision-maker may not put out of his or her mind irrelevant and damaging evidence which should never have been given to the decision-maker. The concern expressed in AMA16 about a decision-maker not being able to put out of its mind “irrelevant and damaging evidence” (or “extraneous information”, in the taxonomy laid down by Deane J in Webb) is, however, far less pronounced where the person affected has an opportunity to make submissions about the information.
It would be wrong to assume from the matters addressed above that the information in question in this case was “extraneous”. The information about the applicant’s criminal convictions was not “extraneous”, as it:
a)was required to be put before the Tribunal (see [56] below);
b)was information that the applicant contends was relevant to a determination by the Tribunal of his claim to fear harm (see [35]-[37] above); and
c)was relevant to the level of weight to be given to letters of support provided by various persons and was therefore adjectivally relevant to the issues to be decided by the Tribunal.
There are therefore two important points of distinction that render AMA16 inapplicable to the present case.
First, unlike the Criminal Charges Information in AMA16, the relevant information about that the applicant’s criminal charges was required to be put before the Tribunal as such information was contained in the delegate’s reasons[23]. The Tribunal was therefore not in receipt of “extraneous” information at all.
[23] CB 165. The Tribunal’s role was to “review” the delegate’s decision: s.414 of the Migration Act.
Secondly, unlike the visa applicant in AMA16, the applicant in the present case was on notice, given the delegate’s reference to the matter in its reasons, that the Tribunal was aware of the applicant’s criminal convictions. The applicant had the opportunity to say whatever he wished about those matters at the Tribunal hearing. The very matter that concerned Griffiths J (and the primary judge) in AMA16 is therefore absent from the present case.
The second issue that I invited the parties to address is whether the Tribunal was entitled to place little weight on the Uniting Church minister’s evidence[24] in circumstances where the Tribunal did not put to her the fact that the applicant has been convicted of certain criminal offences, a fact of which the minister appeared to be unaware.
[24] CB 248 [16]-[19]
It is well-accepted that, in ordinary adversarial litigation (and subject to various exceptions), a cross-examiner of a witness must put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness. This rule, known as the rule in “Browne v Dunn”, derives from observations made by Lord Herschell in Browne v Dunn[25].
[25] (1893) 6 R 67 at 70-71
The rule in Browne v Dunn, however, does not apply to proceedings in the Administrative Appeals Tribunal or the Refugee Review Tribunal. As Gummow and Heydon JJ stated in Re Ruddock; Ex parte Applicant S154/2002[26]:
Accordingly, the rule in Browne v Dunn has no application to proceedings in the Tribunal. Those proceedings are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no “client”, and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client’s cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial Tribunal Member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out; it was not part of the function of the Tribunal to seek to damage the credibility of the prosecutrix’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
(citations omitted)
[26] (2003) 201 ALR 437 at 450 [57]
That the rule in Browne v Dunn has no application to proceedings in the Tribunal leads to the conclusion that the Tribunal was permitted to place little weight on the Uniting Church minister’s evidence without first putting to put to her that the applicant has been convicted of certain criminal offences, if indeed it did not do so.
For these reasons, this ground must fail.
Ground 5
In his fifth ground, the applicant alleges that the Tribunal fell into jurisdictional error by failing to consider whether he faced a real risk of harm as a result of his criminal convictions.
It is well established that a decision-maker is only required to consider the claims made by a claimant that were sufficiently raised on the material before the decision-maker and not those depending for their exposure upon constructive or creative activity by the decision-maker[27]. A conclusion that a decision-maker has failed to consider a claim not expressly advanced is not to be made lightly[28]. As Allsop J (as his Honour then was) said in NAVK v Minister for Immigration[29]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[27] NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 19 [58]
[28] NABE (No 2) at 22 [68]
[29] [2004] FCA 1695 at [15]
There is nothing in the materials to suggest that the applicant claimed that he feared any form of harm in Afghanistan as a result of his criminal convictions. There is also nothing to suggest that the applicant would, for instance, be required to disclose his criminal convictions upon his return to Afghanistan. It follows, therefore, that no claim of this type arose expressly or impliedly on the materials before the Tribunal.
The Tribunal was not obliged to consider a claim that was not made. This ground of review fails.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a private clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 October 2017
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