BMT19 v Minister for Immigration
[2020] FCCA 3397
•17 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMT19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3397 |
| Catchwords: MIGRATION – PROTECTION – subclass 866 visa – extension of time –citizenship pathway – applicant in detention – where applicant claims a well-founded fear of persecution by reason of fear that he will be tortured by police for having observed aftermath of police beating of a journalist and in giving evidence for that journalist – where Tribunal not satisfied of claim and does not accept that applicant observed sequel to any beating of journalist or that a claim was made or prosecution instituted by the journalist or in relation to a beating – where Tribunal not satisfied that applicant gave evidence – whether any evidence for disbelief of claim – whether findings travelled well beyond evidence and materials – whether finding irrational or illogical – where applicant delays nine years in bringing claim for protection – where Tribunal not satisfied of explanation for delay – whether rejection of explanation for delay was irrational or illogical – whether Tribunal affected by apprehended bias – applicable principles – application dismissed. |
| Legislation: Constitution Act 1901 (Cth), s.75 Migration Act 1958 (Cth), ss.36, 65, 424A, 430, 474, 476, 477 Australian Citizenship Act 2007 (Cth), s.21 |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Capic v Ford Motor Company of Australia Ltd (Adjournment)[2020] FCA 486 CKV16 v Minister for Immigration and Border Protection [2019] FCA 342 |
| Applicant: | BMT19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1074 of 2019 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 18 November 2020 |
| Date of Last Submission: | 27 November 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr. A. McBeth *pro bono appointment |
| Solicitors for the Applicant: | Russell Kennedy Lawyers *pro bono appointment |
| Counsel for the Respondents: | Mr. J Barrington |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
By consent, pursuant to s 477(2) of the Migration Act 1958 (Cth), the time within which the application for judicial review of the decision of the Administrative Appeals Tribunal made on 18 February 2019 be extended, now for then, to 11 April 2019.
The amended application dated 21 October 2020 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1074 of 2019
| BMT19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 22 October 2020 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 18 February 2019 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection (Subclass 866) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act). An extension of time is sought. The Minister consented to the application for an extension of time and I also concluded that it was in the interests of the administration of justice that the applicant be granted an extension of time within which to commence this proceeding.
A central feature of the case is that the applicant, an Indian citizen, grounded his claim to a well-founded fear of harm on the basis that he would be tortured for having been a witness on behalf of a journalist in a proceeding brought against a policeman in ~2005-2006 for an assault.
The application should be dismissed. In summary, I have concluded that there was evidence for the Tribunal’s conclusion that it was not satisfied the journalist had brought proceedings against police (or that a criminal proceeding for an assault by police upon the journalist), or that the applicant had twice been detained and beaten by police in relation to his suggested role in having observed the aftermath of a police beating of the journalist or giving evidence (on two occasions) at any such proceeding. The Tribunal’s conclusion it was not satisfied of those matters was not irrational. Further, I do not consider that the Tribunal’s rejection of the applicant’s explanation for his delay in making a claim for protection was based on irrational reasoning. Nor was the Tribunal’s conduct of the merits review of the application tainted by apprehended bias for having sent a s 424A letter to the applicant, raising for his consideration and comment, relevantly, whether he had been convicted and imprisoned for offences involving domestic violence (matters which he admitted, both in his reply to that invitation to comment and in the course of the evidence given at the hearing). A reasonable, properly informed lay observer conscious of the core function of the Tribunal and the statutory context in which the review was to occur would not have considered that the Tribunal might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the questions to be decided; namely, whether the applicant held a well-founded fear of persecution or substantial reasons for believing that the applicant would suffer significant harm if he returned to India.
Background
The applicant, now aged 57 years, arrived in Australia with his wife and first son on 26 March 2008. The applicant had secured entry to Australia as a dependent on his wife’s student visa. In 2009, the applicant was convicted and sentenced to a period of imprisonment for offences of domestic violence against his wife.
On 3 February 2017, and while in detention, the applicant lodged his application for a protection visa following the cancellation of his existing visa. While he was in detention, his wife and two children[1] were granted Australian citizenship on 24 September 2018.
[1] A second child was born in Australia in December 2008.
On 8 March 2017, a delegate of the Minister refused the visa application. In providing a summary of his migration history, the delegate noted the following:
a)in 2008, the applicant had arrived in Australia;
b)on 5 May 2011, his TU573 visa had been cancelled;
c)on 31 May 2010,[2] he had been granted a bridging visa;
d)on 18 November 2013, the bridging visa ceased and a VC487 visa was granted; and,
e)on 14 January 2016, the VC487 visa was cancelled.
[2] A date which was accepted to be obviously erroneous.
The delegate found that the applicant was extremely vague in recounting his claims at his protection visa interview and the delegate had concerns about the applicant’s credibility. The delegate refused the visa application primarily on the basis that the applicant could enter and reside in Nepal and was therefore not entitled to protection.
On 19 March 2017, the applicant completed an application for review of the Minister’s decision, indicating that he was then in detention. While the parties were agreed that the details were somewhat unclear, it was generally accepted that the circumstances giving rise to that detention flowed from the cancellation of his visa on 14 January 2016 which in turn seemed to have arisen from the applicant’s conviction and sentencing for offences of domestic violence.
Following a hearing on 22 May 2017, the applicant was given a letter from the Tribunal in which three adverse matters were put to him for comment as follows:
a)having arrived in Australia in 2008, he had not made application for protection until 2017 – he was invited to comment on the reason for his delay in seeking protection;
b)an issue was raised as to information held by the Department that the fingerprints taken from a person identified as Ashok Kumar (who had been arrested in 1985 for handling stolen goods) matched those of the applicant;
c)at the hearing he said that he had been picked up twice by police and detained for three days on each occasion, whereas he had told the delegate at interview in March 2017 that he had been picked up once and detained for two days – no mention had been made of having been picked up or detained on a second occasion.
The applicant responded to those matters stating that:
a)he had not lodged his “protection visa application before because I had a clear immigration pathway to attain citizenship and security. Conditions have changed and possibility of being sent back to India only arised recently after my release from jail.”[3]
b)the 1985 matching fingerprint allegations were denied;
c)the applicant maintained that his evidence to the Tribunal was accurate and was not sure why he had told the delegate he had been detained only once.
[3] Errors in original.
On 1 June 2017, the Tribunal affirmed the decision to refuse the visa, a decision that was subsequently quashed for jurisdictional error by an order of this Court made, by consent, on 1 February 2018. The Order remitting the matter was made on the basis that the Tribunal had failed to comply with s 424A of the Act by not putting to the applicant for comment information before it that he had been arrested, and in some cases convicted, in respect of a number of criminal offences in Australia, which had been relevant to the Tribunal’s adverse credibility findings.
As noted, on 24 September 2018, the applicant’s wife and children were granted Australian citizenship.
On 11 December 2018, the applicant attended a hearing before a second Tribunal, differently constituted, to give evidence and present arguments. He gave evidence and provided country information in support of his claims, together with the citizenship certificates of his wife and children.
On 12 December 2018, the Tribunal sent the applicant a letter inviting him to comment on or respond to adverse information pursuant to s 424A of the Act. The applicant responded in an undated letter, the content of which is addressed in relation to Grounds 2-3 below.
On 18 February 2019, a Tribunal, differently constituted, affirmed the delegate’s decision to refuse the applicant’s application. In substance, the Tribunal considered the applicant’s evidence and found that the applicant was not a witness of credit and had fabricated his claims.
Tribunal’s decision
The Tribunal considered the issues in the case to be whether the applicant had a well-founded fear of persecution if he was to return to India or whether there was a real risk that he would suffer significant harm if he was removed from Australia to India; that is, the central issue arising was whether the applicant met the criteria necessary for the Tribunal to be satisfied that the applicant was a refugee or entitled to complementary protection by Australia.
While expressing doubts about the applicant’s true identity, the Tribunal was satisfied he was an Indian national and that India was his receiving country for the purposes of consideration of complementary protection.
The Tribunal observed that while the delegate had refused the application on the basis that the applicant had a right to enter and reside in Nepal, it was not necessary to decide the review on that basis.
The Tribunal summarised the applicant’s claims as follows:
a)the applicant had let part of his accommodation to a journalist, Lakhwinder Singh;
b)the journalist, who wrote for the newspaper, Dainir Jagran, wrote stories concerning allegations of police corruption including that they took bribes and used excessive force;
c)the applicant claimed that the journalist had been taken by police and beaten and that he had observed the aftermath of that beating;
d)the journalist had lodged a case against the police and in particular an officer, SSP Bullar, and had called the applicant as a witness;
e)the police had taken the applicant to a police station where he was held for three days, beaten and then released;
f)after the applicant had given evidence in the journalist’s claim, the police had again taken him to a police station where he was held for three days, beaten and then released. On this occasion, the applicant’s father had had to pay police a bribe of one and a half lakhs to secure the applicant’s release;
g)thereafter, the applicant did not regularly stay at his home, instead residing with relations or in his family village;
h)after he had come to Australia, the applicant heard that the police had come looking for him;
i)the applicant no longer had contact with the journalist;
j)the applicant feared harm from the police if he returned to India.
The Tribunal set out in some detail the principles to be applied in assessing the credibility of a visa applicant including that an applicant who was considered to be credible, but otherwise unable to substantiate all of their claims, should in general be given the benefit of the doubt. Further, the Tribunal recognised, correctly, that it was not required to accept uncritically all or any allegations made by an applicant and was not required to have rebutting evidence available to it before it could find that a particular assertion had not been made out. The Tribunal stated that the applicant had been provided an opportunity following the hearing to respond in writing to matters which had arisen and that “in making my credibility findings below I have not based these on demeanour”: [24].
The Tribunals findings were structured so as to address topics under the following headings: (a) Lack of detail: [26]-[27]; (b) No information located about claimed events: [28]-[36]; (c) In hiding: [37]-[42]; (d) Identity and criminal history: [43]-[44].
In making his findings on credibility at [45], the Tribunal member concluded that he had not accepted key aspects of the applicant’s claims. He did not accept there had been any court case brought by the journalist against police or that the applicant had gone into hiding. The Tribunal found that the applicant’s delay in seeking protection raised further doubts about the claims he had made and based on the concerns which were identified, then concluded that the applicant had invented his claim and that the applicant was not a witness of truth. Specifically, the Tribunal did not accept that:
a)police had taken the journalist from the applicant’s apartment and beaten him or that the applicant had seen the result of any such beating;
b)the journalist had lodged a claim against police or SSP Bullar;
c)the applicant had been a witness in such a case;
d)the applicant had been taken away or detained (on two occasions) by police for three days and beaten or that his father had paid a bribe to secure his release on the second such occasion;
e)the applicant thereafter ceased to stay at his home regularly or had been in hiding;
f)the applicant had arranged for his wife and child to come to Australia for any reasons connected with his claims above;
g)the applicant had come to Australia after hearing that police had come looking for him;
h)the journalist had disappeared, been abducted or harmed since the applicant had come to Australia.
On the whole of the evidence, the Tribunal was not satisfied that police, whether in the Punjab or anywhere else in India, held or had any interest in the applicant for any reason, including those being claimed.
Upon consideration of the matter, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he was to return to India and, for the same reasons, that he was owed complementary protection obligations by Australia: [49]-[62].
Following the hearing, the Tribunal had sent a letter pursuant to s 424A of the Act in which two adverse matters were put, and to which the applicant responded, as follows:
a)he had been arrested, charged and convicted of criminal offences in Australia – he agreed he had been convicted and sentenced to eight months imprisonment for offences of domestic violence – but he denied having ever been in Australia before 2008; and
b)a search of country information had not been able to confirm his claims about what he said had happened to him in India – “the inability of the researcher to find the reference to the claims case lodged by lakwinder doesn’t make my claims not true or that I did not suffer or I would not suffer in the future”. The applicant also made a submission respecting the size of India and the state of the judicial system and the unlikelihood of the case being locatable.
As concerned the question whether the applicant had been arrested, charged and convicted of criminal offences in Australia, the Tribunal stated that it placed little weight on this issue. As stated above, a complication arose from the circumstance of certain fingerprint evidence held by the Department and information on its file which indicated that the applicant’s fingerprints were matched to those of a person, Ashok Kumar, who had been arrested in Australia in 1985 on a charge of handling stolen goods. While the Tribunal recognised that the applicant’s response to the s 424A letter had been to deny, on multiple occasions, that he had come to Australia before 2008, a further complication arose from a statement made by the applicant’s wife when interviewed by police in 2009. At that time, she had stated the applicant had come to Australia some 15 years earlier. Putting aside the intrigue of those matters, the Tribunal stated that he did not consider the fact of whether or not the applicant had been in Australia, under a different identity, or arrested but not convicted to be of any relevance. Nor did the Tribunal consider such information would allow for a view to be taken one way or the other about the credibility of the specific matters upon which the applicant grounded his claims to protection: [43].
Similarly, the Tribunal stated that it placed little weight upon the applicant’s recent charges and convictions on family violence matters: [43]. It further stated that “the applicant has admitted to these and I find that they did occur, but I give no weight to this information in making this decision”: [44].
The Tribunal also had regard to the country information provided that police acted with impunity in India and about the security situation in Punjab. It did not accept that the applicant would face a real chance of harm for this reason, relying on country information. The Tribunal did not accept that the applicant would be harmed by the police as a result of his claims to have witnessed the aftermath of the journalist’s beating.
In summary then, the Tribunal did not accept that the applicant gave evidence against the police as a witness in a court case brought by a journalist, Mr Lakhwinder Singh. It did not accept that the applicant was detained or tortured by the Punjabi police in retribution for giving that evidence. It did not accept the applicant was of adverse interest to the Punjabi police or Indian authorities more generally during the period he claimed to have been detained and tortured, nor that he had left India in 2008 for fear of harm for any reason as claimed.
The Tribunal concluded that the applicant did not satisfy the refugee criterion. The Tribunal also relied on its anterior findings to find that the applicant did not satisfy the complementary protection criterion.
The applicant has been in detention since 2016 and remains in detention.
Procedural history
On 11 April 2019, the applicant filed an originating application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review. The application set out twelve (12) grounds of review, each of which have been abandoned.
The application was made 16 days out of time.
On 2 May 2019, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the bases that: the court had no jurisdiction to review the Tribunal’s decision dated
18 May 2019 since the application had not been filed within 35 days of the date of the Tribunal decision;[4] the grounds of the application did not establish any jurisdictional error.
[4] Act, s 477(1).
On 21 September 2020, the Court determined that the applicant be referred for legal assistance under rule 12.02 of the Federal Circuit Court Rules 2001 (Cth), doing so by reason that the applicant was in detention and required the assistance of a Tamil interpreter.[5] Commendably, counsel for the applicant, together with his instructing solicitors, accepted a request to act pro bono in the matter and have represented him from that time. The Court acknowledges the very real assistance given by the submissions and legal assistance provided.
[5] Capic v Ford Motor Company of Australia Limited (Adjournment)[2020] FCA 486, [7] (Perram J).
On 22 October 2020, the applicant filed an amended application together with submissions by which the original grounds of review were abandoned and substituted with three new grounds of review.
The Minister consented to the application for an extension of time. While it is unnecessary to rehearse the applicable principles, having regard to the amended grounds of review and submissions, I considered that it was in the interests of the administration of justice that the applicant be granted an extension of time.
Judicial review
If the Tribunal’s decision was a privative clause decision,[6] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[7] In the absence of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[8] Whether it should do so is a separate issue.
[6] Act, s 474(2).
[7] Act, ss 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[8] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[9] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[9] Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[10] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[11] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[10]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[11] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Ground 1 – Irrationality/no evidence (Journalist’s assault claim)
Ground 1 of the amended application reads:
The finding of the Tribunal that the journalist Lakhwinder Singh was not mistreated by the police and did not file a case about such mistreatment, based on the lack of information located by a researcher, was irrational or was effectively a finding based on no evidence, in that it could not rationally be sustained by the evidence on which the Tribunal relied for the finding.
Ground 1 of the amended application contends that the Tribunal’s decision could not be sustained on the evidence on which it had relied in relation to the allegations of police mistreatment and the associated litigation and further, for the same reasons, was an irrational finding. The parties were essentially agreed that the success or failure of the ground would be the same on whichever approach was taken.
Applicable principles – irrationality
Subject to one matter, the applicable principles were not in dispute.
The making of a finding of fact which is a critical step in the ultimate conclusion reached, and for which there is no evidential support may constitute jurisdictional error.[12] By extension, a decision may be affected by jurisdictional error where it is irrational, illogical or not based on findings or inferences of fact supported by logical grounds.[13]
[12] SZMWQ v Minister for Immigration [2010] FCAFC 97; (2010) 272 ALR 59, [125] (Rares, Besanko and Flick JJ); SFGB v Minister for Immigration [2003] FCAFC 231; (2003) 77 ALD 402, [19] (Mansfield, Selway and Bennett JJ).
[13] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [135] (Crennan and Bell JJ).
A finding made along the way to the ultimate conclusion that is irrational will constitute jurisdictional error, particularly where the finding was an adverse credibility finding and was a critical step in the Tribunal’s decision that the applicant did not meet the criteria for a visa.[14]
[14] BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292, [34] (Perram, Perry and O’Callaghan JJ); Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Perram, Murphy and Lee JJ).
Furthermore, a Tribunal will make a jurisdictional error where it makes a finding that, objectively, reaches “well beyond the material before it”: DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (DNQ18).[15]
[15] DNQ18 [2020] FCAFC 72, [53].
So as to ensure that the Court does not embark impermissibly upon merits review, a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, it has been said that “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.[16] Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”.[17]
[16] Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572, [148] (Robertson J).
[17] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, [61] (McKerracher, Griffiths and Rangiah JJ).
Mortimer J recently observed the suggested requirement that illogicality or irrationality should be ‘extreme’ before error is made out is not supported by High Court decisions from which the principles are derived but nonetheless, that a high threshold is to be imposed.[18] Other authority adheres to the use of ‘extreme’ illogicality or irrationality as an apt description of the high threshold that is to be met in such cases.[19] To accept that the High Court’s decisions do not introduce a requirement that the illogicality or irrationality must be extreme before a conclusion of jurisdictional error is reached is not to deny the high threshold that applies or the nature of the caution that is appropriate to be adopted in scrutinising the logic of reasons of an administrative decision-maker without an eye which is keenly attuned to error. I prefer to approach the question without regard to the suggestion that an element of the test is that the illogicality or irrationality must be extreme and instead to adopt the settled caution that a high threshold is to be imposed.
[18] AWU16 v Minister for Immigration and Border Protection [2020] FCA 513, [23]-[28] (Mortimer J).
[19] BCV16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 851, [42] and cases cited (Murphy J).
Applicable principles – no evidence
The following propositions inform whether error of law is made out on a ‘no evidence’ ground. First, where an administrative decision-maker has decided a question of fact or drawn an inference when there is no evidence in support of such finding or inference, then it makes an error of law.[20] Secondly, a ‘no evidence’ ground is one of capacity at law, not weight as a matter of administrative fact finding.[21] Thirdly, for this reason, a ‘no evidence’ ground differs from legal unreasonableness.[22] Fourthly, a jurisdictional fact must be involved before a ‘no evidence’ ground can be established.[23] Fifthly, insufficiency of evidence does not sustain a no evidence finding.[24] Sixthly, there must be no evidence at all on which the impugned finding could have been based.[25] Seventhly, where a crucial finding has been made without any evidence, a question may arise as to whether the decision was irrational or illogical.[26] Eighthly, considerable caution is to be exercised before concluding the absence of evidence to support a particular factual finding necessarily constitutes jurisdictional error.[27] The cumulative effect of those principles is that a ‘no evidence’ submission faces a high threshold.[28]
[20] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418, [90]-[91] (Hayne, Hayden, Crennan and Kiefel JJ); Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775, [62] (Jessup J); [83]-[84] (Jagot J).
[21] Wang v Australian Securities and Investments Commission [2019] FCA 1178, [66] (Bromwich J).
[22] Ibid.
[23] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [39] (Gummow and Hayne JJ, Gleeson CJ agreeing); SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995, [57] (Madgwick J).
[24] Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, [118] (Besanko, Jessup and Bromberg JJ); SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214, [71] (Markovic J).
[25]VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350, [18]-[19] (Gray, Moore and Weinberg JJ); see also Taulahi v Minister forImmigration and Border Protection [2018] FCAFC 22, [31] (Robertson J, North and Besanko JJ agreeing); Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74, [27], (Jagot, Bromberg and Rangiah JJ).
[26] Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54] (Perry J).
[27] Wang v Australian Securities and Investments Commission [2019] FCA 1178, [66(1)].
[28] SZTGR v Minister for Immigration and Border Protection [2014] FCA 1385, [47].
Since the ‘no evidence’ ground cannot be made out unless it is established that there is absolutely no evidence capable of supporting the impugned finding or inference, a ‘no evidence’ ground cuts out when even a skerrick of evidence appeared: Shop, Distributive and Allied Employees Association v National Retail Association (No 2).[29] There, Tracey J held that a ‘no evidence’ ground cuts out when even a skerrick of evidence appears. His Honour referred to a statement in Judicial Review of Administrative Action,[30] whose learned author repeats that proposition in the current edition of that text.[31]
[29] (2012) 205 FCR 227, 235, [31] (Tracey J); YKSB v Minister for Home Affairs [2020] FCA 476, [51] (Mortimer J).
[30] Mark Aronson, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) 259.
[31] Ibid, 6th ed, (2017) 255 [4.600].
In ascertaining whether there is ‘no evidence’ capable of supporting a finding, it must also be recognised that an administrative decision-maker is entitled to act upon both direct evidence and to draw inferences of fact: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[32] Shop, Distributive and Allied Employees Association v National Retail Association (No 2);[33] Australian Postal Corporation v D’Rozario.[34] In the latter appeal, the Full Court held that the necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the fact existed.[35]
[32] (2004) 78 ALJR 992, [39]-[41] (Gummow and Hayne JJ).
[33] (2012) 205 FCR 227, 235 [31] (Tracey J).
[34] (2014) 222 FCR 303, 334 [118] (Bromberg J).
[35] (2014) 222 FCR 303, [118] citing SGLB, (2004) 78 ALJR 992, [41] (Gummow and Hayne JJ, Gleeson CJ agreeing).
Having regard to the way in which Ground 1 had been framed, and as raised in the course of argument, I note that the Full Court’s reasoning in DNQ18 involved no consideration of the principles addressed in relation to a ‘no evidence’ ground of review. In the present case, it was generally accepted that DNQ18 did not represent any departure or modification of the principle that a ‘no evidence’ ground cuts out once there is a skerrick of evidence to support the impugned finding.
In DNQ18, the Authority was found to have relied to a considerable extent on certain country information, stating that greater weight would be placed on it as it was the most recent country information in the review materials. The Full Court, accepting that the Authority’s reasons were to be read fairly and as a whole, concluded that it was not possible to see the Department of Foreign Affairs and Trade (DFAT) report as being probative of the Authority’s finding. To the contrary, the Full Court held that “The passage in the DFAT report had a much more limited scope, and was somewhat ambiguous in any event. The Authority’s finding reached well beyond the material before it, and in doing so it made a finding for which there was no evidence.”[36] There, the critical finding in the decision under review had been that country information did not indicate that children were prosecuted in Sri Lanka. It was accepted that the sole repository of any evidence for that finding had been a single sentence in the subject DFAT report which in fact stated “Children are never subject to bail or fines”.
[36] DNQ18 [2020] FCAFC 72, [53] (McKerracher, Mortimer and White JJ).
The amended ground of appeal in DNQ18 was that the finding should be impugned as one which had no basis in the evidence. Given the facts of DNQ18 and the Full Court’s analysis of the single sentence in the DFAT report which represented the only material from which the finding that children were not prosecuted in Sri Lanka, it was plain that there was no evidence for the impugned finding. The Full Court’s description of the information in the DFAT report as being of a much more limited scope and the Authority’s finding as ‘travelling well beyond’ that material readily explains the conclusion that the Authority had made a finding for which there was no evidence. Indeed, the result of the appeal in DNQ18 might perhaps be seen as somewhat unsurprising.
I accept the submission that DNQ18 does not extend or modify the principles to be applied in relation to a no evidence ground and that the Full Court’s statement that the Authority’s finding “reached well beyond the material before it” had simply been another way of expressing what had been said in the remaining part of the relevant sentence: namely, the Authority had “made a finding for which there was no evidence”.[37]
[37] Ibid.
Submissions
The applicant submitted that the Tribunal was obliged by s 430(1) of the Act to set out in its decision record the findings on any material questions of fact and the evidence or any other material on which those findings were based. It was submitted that the basis for the Tribunal’s finding at [35] that the journalist had not been mistreated and had not filed a court case was recorded as “the lack of information found by the researcher”. The Tribunal’s reference to the researcher was explained by the Tribunal’s letter to the applicant dated 12 December 2018, in which it put certain information to the applicant for comment pursuant to s 424A of the Act. Under the heading ‘Issue 2’ in that letter it was stated that a researcher in the Department of Home Affairs had been asked by the Tribunal to search online databases to find references to a court case lodged by Lakhwinder Singh against police in 2004 or 2005.
Attachment 1 to the s 424A letter was the researcher’s response to that request, setting out the parameters of the search, some of the limitations of the search and the search results. The researcher stated that an attempt to search the High Court of Punjab and Haranya was not able to be completed because he or she did not have sufficient information to narrow the search. A further search of court records was limited to an English language search of the District Court of Jalandhar, for a case brought in the name of Lakhwinder Singh (as the applicant or plaintiff) in 2005. It did not return any results.
The applicant submitted that his evidence to the Tribunal included that:
a)he was unsure what year the court hearing was, but he believed it was 2005 and that he was called to give evidence again the following year, 2006;
b)he initially said he did not know whether it was a criminal or a civil case, although according to the Tribunal decision record, the applicant subsequently said “it was not a civil case”;[38]
c)he was not sure in which court the matter was heard; and
d)his involvement in the proceeding was limited to that of a witness who gave evidence for 5 to 7 minutes in duration on two occasions, approximately a year apart.
[38] Reasons, [26].
The researcher further reported that a search of English-language news databases did not find reports of mistreatment of a Dainik Jagran journalist named Lakhwinder Singh. The applicant observed there was no mention of any attempt being made to search for Dainik Jagran articles with a by-line in that name, whether about police misconduct or anything else. It was observed that Dainik Jagran is a Hindi-language newspaper. Contrastingly, the researcher had located two English-language press articles from 2000 and 2001 about police violence and misconduct against two other journalists from Dainik Jagran. In one of those cases, a court proceeding had been initiated against the offending police officers. The applicant submitted that at a minimum, this supported the claim that events of the type he described did take place, albeit involving different journalists from the same newspaper somewhat earlier than the events that were the subject of his claims.
The applicant submitted the Tribunal’s finding at [35] that the journalist was not mistreated by police and had not filed a case about his mistreatment went ‘well beyond’ the material on which the Tribunal relied for that finding. It was submitted that the material on which it had relied was the lack of results reported by the researcher. It was further submitted that at its highest, the researcher’s results indicated that an English language database of one specific court – the District Court of Jalandhar – did not return a result for a case with the name Lakhwinder Singh as the plaintiff or applicant in 2004 or 2005. It was further submitted that the research said nothing about whether:
a)a proceeding had been commenced in a different court (noting that the search of the High Court of Punjab and Haranya was not able to be undertaken by the researcher);
b)the Hindi name “Lakhwinder” had been rendered in English differently to the spelling entered by the researcher;
c)a criminal proceeding (in which the complainant’s name would not be recorded as a party) had been commenced;
d)any proceeding in the District Court of Jalandhar under that name was recorded in 2006, being the year in which the applicant says he gave evidence for the second time;
e)every proceeding in the District Court of Jalandhar was recorded in the online English database searched by the researcher.
For those reasons it was said that the results reported by the researcher could not rationally support the finding that a journalist, Lakhwinder Singh, was not mistreated by police and did not file a case about his mistreatment. The applicant thus submitted that the Tribunal’s finding at [35] was irrational, or, adopting the formulation in DNQ18, was, in effect, a finding based on no evidence, because the finding went ‘well beyond’ the material before the Tribunal and on which it had relied.
The Minister submitted that, when read as a whole, the Tribunal’s reasons did not disclose extreme illogicality or irrationality, or a finding which no rational decision-maker could have arrived at but was a conclusion well-open to the Tribunal.
Resolution
The approach to be taken in the determination of an irrationality based ground is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and in making the findings which it did make on the material before it.[39]
[39] Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309, [61].
As stated above, I prefer to approach the question without regard to the suggestion that an element of the test is that the illogicality or irrationality must be extreme and instead to adopt the settled caution that a high threshold is to be imposed. Ground 1 turned upon the Tribunal’s finding that “Lakhwinder Singh, a Dainik Jagran journalist, was not mistreated by the police and did not file a case about his mistreatment”: [35]. The Tribunal found that the applicant was not a witness to the mistreatment of the journalist, did not give evidence in a court case and that his claims were not true: [36].
The Tribunal clearly recognised that the applicant’s claim to have a well-founded fear of persecution centred on the claim related to the journalist, Lakhwinder Singh. The Tribunal acknowledged that the applicant claimed to have observed the aftermath of the alleged beating of the journalist, as well as experiencing his own beatings and detention on two occasions as a result of his agreement to give, and his having given, evidence in relation to the journalist’s claim against police: [25].
The Tribunal accurately distilled the applicant’s claim that he had rented part of his home to Lakhwinder Singh, a journalist who worked for the newspaper Dainir Jagran, writing stories on police corruption, their willingness to take bribes and their use of excessive force. The Tribunal recorded the claim that the police had taken the journalist and beaten him and that “the applicant saw the result of the beating”: [14]. It also recorded the applicant’s claim that the journalist had lodged a claim against the police and the officer SSP Bullar: [15]. The Tribunal identified the applicant’s evidence that the police had taken him to a police station on not one, but two, occasions, beating him and detaining him for three days and that, on the second occasion, his father had paid a bribe to secure his release from the police station: [15]-[16].
It was not suggested that the Tribunal’s summary of the principles relevant to the assessment of credit or its statement that a decision-maker was not required to accept uncritically the evidence of the applicant were erroneous. The Tribunal understood it was not required to have rebutting evidence available to it before finding it was not satisfied of a particular claim. This link in the chain of reasoning confirms that the Tribunal was conscious of the correct approach to be taken: [21]-[23].
The Tribunal, being conscious the applicant was in detention and that the hearing was conducted by video link, recorded that the credibility findings that were made were not based on demeanour: [24].
In its assessment of the applicant’s claims and evidence, the Tribunal’s analysis proceeded by reference to the lack of detail about the court case. It then addressed the lack of cogent information about the claimed events and explained why, in the face of the applicant’s non-responsive stance at the hearing, a decision was made to send him a s 424A letter, thereby affording him an opportunity to respond and furnish information in relation to the journalist’s litigation. Then, having accepted the limitations inherent in the researcher’s report, the Tribunal evaluated such information as was available together with the applicant’s response to the s 424A letter and found that the lack of information indicated the journalist had not been mistreated nor had he filed a case. Ultimately, the Tribunal was not satisfied of the applicant’s claim he had been a witness to the aftermath of the suggested beating, twice detained and beaten by police or been a witness in any litigation: [26]-[36].
The first reference to the researcher’s work appeared at [29] and explained the process of reasoning undertaken by the Tribunal which was, in effect, that the absence of any information by the researcher would be a reason why, or a part of the reason why, his claim in relation to the journalist’s litigation might not be accepted. The Tribunal expressly referred to having raised the issue with the applicant at the hearing and that this had been done pursuant to s 424AA of the Act. The Tribunal explained why the lack of a result in the researcher’s report may have consequences in terms of satisfaction of this claim: [30]. Notably, “the applicant did not respond to this information at hearing but elected to respond in writing”: [31]. It was in those circumstances that the s 424A letter was sent. The Tribunal set out the applicant’s response to this issue at [32] and, having done so, expressly accepted the limitations inherent in the researcher’s information: [33]. However the Tribunal considered it to be of more relevance that searches of media reports (as distinct from searches of a court database), did not disclose records of a claimed police mistreatment of a Lakhwinder Singh, a journalist working for a newspaper having the highest Hindi readership in India where two other instances of police mistreatment of journalists were located earlier in time than that of the subject claim: [33]-[34].
The Tribunal then reasoned that “had Lakhwinder Singh, a journalist with Dainik Jagran, indeed been mistreated, and lodged a court case, that this would have been reported and located by the researcher in their searches.”: [34]. Those reasons involved a finding that a police beating of a journalist employed by a newspaper having the highest Hindi circulation in India would have been reported. The decision-maker attached significant weight to the absence of such a report, doing so in the combined context that earlier reports of assaults on journalists had been located and that the applicant had been afforded an opportunity to provide information in relation to the matter and that the applicant’s lack of detail when giving evidence to the Tribunal satisfied it that “the applicant appeared to know very little about the case, what it was, how it had proceeded, or any details other than the very briefest. When considered with the concerns below, this leads me to have grave doubts about the applicant’s claims and his credibility”: [27], [34].
The Tribunal was cognisant of the limitations inherent in the researcher’s findings; it noted those limitations on two occasions: [33]-[34]. However, it also noted that Mr Singh had worked for a Hindi newspaper “with the highest readership in India”: [28]. The Tribunal also noted that the researcher was able to find examples of police mistreatment of other journalists at the same newspaper: [34]. It was in this context that the Tribunal considered that the researcher’s findings about the absence of any records in the media about Mr Singh to be significant.
Counsel for the applicant observed in the course of argument that in his second s 424A response, the applicant’s spelling of the name ‘lakwinder’ differed from that used elsewhere: ‘Lakhwinder’. This was said to expand the unreliability of the research undertaken. By contrast, in his answer to Q. 90 in the visa application, the applicant had spelled the journalist’s name ‘Lakhwinder’. As appeared from the applicant’s first and second s 424A responses, each such letter was replete with spelling errors. To the extent that the applicant submitted the spelling ‘lakwinder’ supported a conclusion as to the unreliability of the search undertaken by the researcher, in my view it is not a consideration which warrants particular prominence.
It is clear that the researcher’s findings were not the sole basis for the Tribunal’s conclusion. The Tribunal stated that its conclusion was based upon the researcher’s findings together “with my concerns about the lack of detail the applicant was able to provide about the case”. That reference to “lack of detail” is clearly a reference to the Tribunals earlier consideration at [26]-[27] under the heading “lack of detail”. It was here that the Tribunal found the applicant’s evidence to be “brief and undetailed” and found that “the applicant appeared to know very little about the case, what it was, how it had proceeded, or any details other than the very briefest.” The evident lack of detail provided by the applicant was a matter of legitimate concern to the Tribunal.
More broadly, it is evident the Tribunal was quite unconvinced by the applicant’s evolving version of events including to having been in detained on not one but two occasions and of having gone into hiding for a period of years after the second beating: [37]-[38].
In evaluating a visa application, a Tribunal is entitled to accept or reject or give such weight to the evidence as it considered appropriate.[40]
[40] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11].
The Tribunal’s conclusions on credibility demonstrate that the approach which had been taken was to consider the applicant’s claims individually and cumulatively, leading to a conclusion that the applicant was not credible or a witness of truth and, as relevant to Ground 1, did not accept that: the police had taken the journalist; the applicant had seen the aftermath of a beating; the applicant had been beaten on two occasions or detained on each occasion for three days in 2005-2006; the applicant had been a witness to any proceeding brought by, or in relation to, the journalist respecting the alleged beating. It examined information provided by the applicant and found that none of it dealt with his specific claim respecting the journalist but was generic in nature. It also had regard to, and accepted that there was a level of, police impunity in the Punjab region but, having rejected his claims respecting the journalist, a court case and the applicant’s claims to alleged beatings, concluded there was not a real chance the applicant would be harmed by the police including, in particular, SSP Bullar: [45]-[46], [50]-[51].
In my view, the case is distinguishable from DNQ18 where the evidence relied upon for an affirmative finding that children were not prosecuted had addressed a far more limited topic; namely, that “Children are never subject to bail or fines”. By contrast, the Tribunal here made a finding of a qualitatively different nature – it was not satisfied that the claims made by the applicant respecting the journalist had occurred. I do not accept the submission that the impugned finding, being a rejection of the claims respecting the journalist, the applicant’s being a witness to the aftermath of a beating or his detentions and own beatings, or his claim that his father had paid a bribe or that he had given evidence in any litigation, went ‘well beyond’ the evidence and materials before it.
Ground 1 was concerned with the question whether the Tribunal had been satisfied of the applicant’s claims as to the occurrence of these events and, having afforded the applicant an opportunity, post hearing, to address the issue, was not satisfied that the claims should be accepted. This conclusion was open to the Tribunal. The Tribunal’s lack of satisfaction focussed on the series of events advanced by the applicant culminating in it not being satisfied of the applicant’s claims that he had been witness to the aftermath of a beating, or been arrested or detained or had himself been beaten or that he had given evidence for the journalist or in a proceeding related to such events. Further, as the Tribunal observed at [21], it was not for it to make out the applicant’s case. The approach taken by the Tribunal was to identify the various strands in the claims being advanced by the applicant and to conclude it was not satisfied of the occurrence of the events upon which he had relied in support of the claim to a well-founded fear of persecution.
For the reasons above, upon a fair reading of the Tribunal’s reasons as a whole, it was open to the Tribunal to engage in the process of reasoning in which it had engaged and to make the findings it made on the material before it. It follows that the impugned finding, being a step along the way to the conclusion that the Tribunal was not satisfied the applicant had a well-founded fear of harm arising from any dealings with police in 2005-2006, was not illogical or irrational in the sense necessary to establish jurisdictional error. For the same reasons, I do not accept that the finding made was based on no evidence. The Tribunal inferred that the mistreatment of Mr Singh did not occur, in part, from the researcher’s finding that there was an absence of available information on that incident coupled with the fact that the Dainik Jagran was a newspaper having the highest Hindi readership in India and that reports of mistreatment of two other journalists had been located. The Tribunal also took account of the inherently vague account given by the applicant of the matter. That evidence – of an absence of media reporting or court records – was capable of supporting the conclusion reached by the Tribunal that it was not satisfied the claimed events had occurred.
Ground 1 is rejected.
Ground 2 – Genuine consideration of claim (Explanation for delay)
Ground 2 of the amended application reads:
The Tribunal failed to give proper consideration to an element of the applicant’s claims and evidence, or alternatively, based its finding on irrational reasoning, in finding that the applicant’s claim was not credible because he “would have been motivated to seek a more immediate and durable way of remaining in Australia than a student visa” if his fear was genuine.
Particulars
a)The applicant claimed that he did not make a protection claim earlier because he already had a clear immigration pathway to remain in Australia and therefore did not face the prospect of return to India.
(b)The Tribunal had before it the citizenship certificates of the applicant’s wife and children.
(c)The Tribunal found that the citizenship certificates had no bearing on the applicant’s claims.
(d)The Tribunal failed to appreciate that the applicant and his family had an actual pathway to citizenship and that his family members had achieved citizenship and erred in characterising the applicant’s situation.
Ground 2 of the amended application contends that the Tribunal’s decision in rejecting the applicant’s explanation for his delay in making a claim for protection was based on irrational reasoning.
Submissions
Relevantly to Ground 2, the applicant’s evidence to the Tribunal was that he had been on a clear path to permanent residency and citizenship before he lodged his protection visa application, making it unnecessary to apply for protection earlier, because there was not a real prospect he would be returned to India: [41]. The applicant emphasised that his wife and children were granted Australian citizenship in 2018.
It was persuasively submitted that if an applicant had reason to believe that he would not be returning to his home country in the foreseeable future, the subjective fear of persecution upon return would be absent, because subjectively, the prospect of return would not be real.
It was further submitted that after the applicant entered Australia as a dependent on his wife’s student visa, the family’s plan was to take further steps once in Australia to obtain permanent residency and then citizenship. Thus, as the argument ran, if that plan had been achieved, there would have been no need for the applicant ever to return to India. For that reason, it was said to be of great significance that all other members of the applicant’s family were granted citizenship with their citizenship certificates being in evidence before the Tribunal.
It was further submitted that the Tribunal’s reasoning at [40]-[42] was irrational in that the description of the family’s visa path as “temporary and not durable”, which was the foundation of an adverse credit finding, was not rationally sustainable in light of the evidence before the Tribunal about the permanence of the immigration status of the rest of the applicant’s family. It was further said that by failing to have regard to the citizenship of the applicant’s wife and children in the context of his explanation for the delay in lodging a protection visa application, the Tribunal deprived itself of the full context of the applicant’s submission and that such failure amounted to a constructive failure to conduct the review according to law.
The Minister submitted that a claim about the significance of the citizenship certificates to the issue of delay did not arise squarely, or clearly emerge, from the materials before the Tribunal and the Tribunal did not need to consider it. It was further submitted that the Tribunal’s finding that the applicant would have been motivated to seek a more immediate and durable way of remaining in Australia than upon a student visa, and would have done so earlier than nine years after arriving in Australia, were not findings which no rational or logical decision-maker could have arrived at on the same evidence.
The Minister drew attention to the following general principles. First, the Tribunal need only to consider claims where they are: “the subject of substantial clearly articulated argument, relying on established facts”; or “clearly emerge from the material”, and that a finding of failure to consider such claims was not to be lightly made.[41] Relatedly, it was said that on judicial review the Court insists a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.[42]
[41] AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18].
[42] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [1] (Gleeson CJ).
Resolution
Delay in making a claim for protection is a relevant factor which may be taken into account in the determination whether a decision-maker is satisfied that an applicant has a fear of persecution that is well-founded or that there are substantial grounds for believing that there is a real risk an applicant would suffer significant harm if returned to their receiving country. Absent a reasonable explanation for delay, an adverse inference may be drawn against a visa applicant that her or his claim to fear harm is not well-founded.[43] This is effectively what had occurred in this case.
[43] BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181, [27], [42], [131]-[135], [137].
Again, as with Ground 1, it is necessary to examine the way in which the applicant’s claim was made and considered and to ask whether it was open to the Tribunal to engage in the process of reasoning in which it engaged and in making the findings which it had made on the material.
The Tribunal considered the delay between the applicant arriving in Australia in 2008 and lodging his protection visa application in 2017: [39]-[42]. From the outset, the Tribunal accepted that there may be cogent reasons why a person might not immediately seek protection upon arrival in Australia but equally recognised that the period of delay in the context in which it had occurred may raise legitimate concerns about the claims to a well-founded fear of harm: [39]. The Tribunal noted the evidence that, having arrived in Australia in 2008, the applicant had not sought protection until 2017: [40].
It was against this background that the Tribunal referred to the applicant’s claims to having been detained by police for three days on two occasions and beaten severely such that he had gone into hiding for an extended period. The Tribunal reasoned that those circumstances might indicate the applicant would have been motivated to seek protection at a time far earlier than he had done. Responding to this the applicant identified the following matters. First, he had earlier held a visa. Secondly, he had not been aware he could lodge “a protection case”. Thirdly, it was only when in detention that he was told he could lodge a protection visa application: [40]. Those were the facts upon which the applicant had relied before the second Tribunal in relation to delay.
The Tribunal then stated that a student visa was only a temporary visa, which carried “an expectation that the holder will return to their home country”: [40]. Contrary to the applicant’s submission, this statement, which had been made expressly in the applicant’s s 424A response, had not been ignored. The Tribunal recorded the applicant’s response was that he had not lodged a protection visa application as “he had a clear immigration pathway to attain citizenship and security.”
Further, on 27 May 2017 the first Tribunal had delivered to the applicant a letter raising a concern as to the delay in lodging a protection visa application, to which the applicant responded on 28 May 2017 stating that he had not lodged his visa application “because I had a clear immigration pathway to attain citizenship and security. Conditions have changed and possibility of being sent back to India only arised (sic) recently after my release from jail.” The Tribunal stated that it had also had regard to the applicant’s response to the first s 424A letter: [19].
Having regard to the reasoning at [19] and [41], read with the applicant’s letter dated 28 May 2017 to which the Tribunal said it had had regard, there can be no doubt the Tribunal was conscious that the source of the belief to ‘a clear immigration pathway’ derived from his May 2017 letter.
As the Minister submitted, the applicant had sought to explain the delay on two separate occasions. To the first Tribunal, the applicant stated that he “had a clear immigration pathway to attain citizenship and security. Conditions have changed and possibility of being sent back to India only arised recently after my release from jail”. To the second Tribunal, he stated that “he had a visa and was staying on that visa, and he was not aware there was a protection case he could lodge” until he was at Yongah Hill detention centre.
In all of those circumstances, I reject the Minister’s submission that the issue of citizenship had not been squarely put before the Tribunal as a fact upon which the applicant had relied in answer to the issue of delay. Whether or not it received the emphasis now being sought to be given to it, I consider that the only rational explanation for having put the two certificates of citizenship before the Tribunal was in furtherance of the claim made earlier in the applicant’s response to the first s 424A letter that he had a clear immigration pathway to attain citizenship and security. Whether or not the applicant’s belief as to the existence of such a pathway was reasonably held is a separate matter. But I consider that the applicant only provided those certificates in proof of that belief. Why otherwise would he had supplied copies of those documents?
However, the applicants claim that he had been on a clear path to permanent residency and citizenship before he lodged his protection visa application, making it unnecessary to apply for protection earlier, was in effect to collapse his migration prospects into those of his family.
While I disagree with the submission that the applicant had not relied upon the certificates, I agree that the applicant had only ever held a temporary visa in Australia and the Tribunal reasoned that this of itself carried with it an expectation that the visa holder would return to his or her home country. To have been conferred citizenship, the applicant’s family members must have held permanent residency, as it is a requirement for such conferral that an applicant is a permanent resident.[44] In those circumstances, I also accept that at some point, the applicant and his family’s migration paths diverged considerably. The extent of such divergence was underscored by the applicant’s migration history as identified by the first Tribunal which demonstrated that following his arrival in Australia in 2008, his TU573 visa had been cancelled in 2011 and his VC487 visa was cancelled on 14 January 2016. Those matters were considered by the second Tribunal and undermined any rational foundation for the suggested belief that the applicant had a clear pathway to permanent residency and citizenship.
[44] Australian Citizenship Act 2007 (Cth), s 21(2)(b).
The Reasons also demonstrate that the Tribunal was cognisant of the applicant’s reliance on the argument that he had a clear immigration pathway to attain citizenship. It said that it had taken this into account. But upon its review of the whole of the evidence it concluded that the certificates of citizenship had no bearing on his claims: [18]-[19], [47]. Read fairly and as a whole, the Tribunal both considered those certificates and understood why they had been provided. Contrary to the applicant’s objective, the Tribunal concluded that they were not relevant to his claims which, in context, I understand as an implicit rejection of the applicant’s suggested explanation for the delay in seeking protection. On the path of reasoning adopted by the Tribunal, having regard to the applicant’s immigration history (and because it did not accept that there was a rational basis for the suggested belief of a pathway to his own citizenship), the certificates were treated as having no bearing on the proffered explanation for delay. In substance, the Tribunal drew a distinction between the circumstances of the applicant on the one hand, from the divergent path of the applicant’s wife and children respectively. Objectively, a suggestion that the conferral of Australian citizenship on his family members was evidence of his own ‘clear pathway’ to Australian citizenship was undermined in light of his having only held a temporary visa as a secondary applicant to his wife’s student visa and the successive cancellations of the two other temporary visas that had been issued to him thereafter.
Whether or not this represented a path of reasoning which another decision-maker or this Court might adopt, it was a path that a reasonable decision-maker could have taken and which was taken in this instance.
The Tribunal further concluded that if the applicant’s fear had been genuine, “he would have been motivated to seek a more immediate and durable way of remaining in Australia than a student visa”: [42].
In expressing its conclusions on credibility, the Tribunal did not accept many of the applicant’s claims, including that the applicant had gone into hiding for a number of years, despatched his wife and child to Australia because of his fears or that he had then come to Australia after being told that the police were looking for him: [45].
The applicant complained that the Tribunal had paid no regard to the fact that the ‘pathway’ had proved to be permanent for the rest of the applicant’s family. It was submitted that the fact the Tribunal entirely omitted any consideration of the citizenship status of the applicant’s family indicated that it had overlooked a key piece of evidence, in the sense that it failed to appreciate the significance of that evidence to its reasoning.[45] So understood, the issue of citizenship was presented as evidence answering why there was a reasonable explanation for the nine year delay in seeking protection. In my view, the Tribunal did pay regard to the citizenship certificates but regarded them as irrelevant to the applicant’s separate applications for a visa and ultimately, protection.
[45] Minister for Immigration v SZRKT (2013) 212 FCR 99.
The gravamen of the applicant’s complaint was that in characterising the applicant’s combined circumstances as being such that he would have been motivated to seek a more immediate and durable way of remaining in Australia than simply on a student visa, and would have done so more than nine years after his arrival, the Tribunal had no regard to the fact that his wife – the primary visa holder of the student visa – had attained Australian citizenship at the time of the Tribunal hearing.
I do not accept that submission. Contrary to the applicant’s submission that there were only two references to the citizenship documents, the Tribunal referred to the fact of the citizenship records at [18], [47] and [53]. The Tribunal acknowledged that the applicant had provided it with copies of those certificates: [18]. And at [47], the Tribunal stated:
I have had regard to the Australian citizenship conferral documents dated 24 September 2018 for his wife and sons. I consider that these have no bearing on his claims above.
The Tribunal also referred to the Australian citizenship of the applicant’s wife and sons and found that if the family were to return to India together, the Australian citizenship would not be a reason that would lead to a real chance of the applicant or his family being harmed: [53]. It is true that the last of those reasons was unrelated to the issue of delay; however, the matters referred to at [18] and [47] clearly formed part of the Tribunal’s analysis which led to the ultimate conclusion that the applicant’s suggested explanation for the delay in applying for protection had not been accepted and that this was one of the reasons why it was not satisfied the applicant held a well-founded fear of harm: [54]-[55].
Looked at more broadly, the Tribunal arrived at its decision after having considered the applicant’s response to the first s 424A letter in which he provided his answer to ‘Issue 1’ concerning the question of delay. The applicant then provided the certificates of citizenship to the second Tribunal in seeking to satisfy it of the cogency of his belief to a ‘clear pathway’ to citizenship. The issue was addressed in those precise terms by the Tribunal including its recognition of the applicant’s immigration history which involved his being a dependent upon a temporary student visa and the later issue, and cancellation, of two other temporary visas.
The Tribunal identified the applicant’s pathway argument. Contrastingly, the applicant did not adduce evidence of any attempts in the period 2008-2017 to demonstrate how he had sought to progress his own pathway to citizenship. Absent permanent residency he could not have done so. It was not satisfied of the applicant’s explanation for the nine year delay.
The path of reasoning, including the rejection of the certificates as being probative of the explanation for delay was a path open to be taken in this case. The impugned finding was not a finding which no rational or logical decision-maker could have arrived at on the same evidence.
Ground 2 is rejected.
Ground 3 – Apprehended bias (s 424A letter)
Ground 3 of the amended application reads:
The decision of the Tribunal was affected by apprehended bias, in that the Tribunal had before it and considered prejudicial information that was irrelevant to the review.
Particulars
(a)The Tribunal had before it information indicating that the applicant had been convicted of criminal charges relating to family violence.
(b)The Tribunal considered that the information could be the reason or part of the reason for affirming the decision under review and put the information to the applicant for comment.
(c)The information was prejudicial and was not relevant to the review.
(d)The Tribunal made a positive finding that the offending referred to in the irrelevant information occurred.
For reasons to be addressed below, it may be noted that the amended ground which introduced an allegation of apprehended bias was based solely upon the applicant’s convictions for family violence.
By Ground 3, the applicant contends that the fact of the Tribunal having issued a s 424A letter was demonstrative of apprehended bias by reason that it identified matters which the Tribunal had concluded, at least as a preliminary matter, would be the reason or a part of the reason for affirming the decision under review: Act, par 424A(1)(a).
Applicable principles – apprehended bias
The relevant principles as to apprehended bias are well settled and were essentially common ground. The ultimate question is whether a fair-minded lay observer might reasonably apprehended that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided.[46] This test is sometimes referred to as a “double might”.[47] Apprehended bias serves the fundamental object of preserving and promoting confidence in the integrity of decision-making.[48]
[46] Counsel cited Livesey v NSW Bar Association (1983) 151 CLR 288, 293-294; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [27]-[28]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, [31].
[47] CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47, [18] (Kiefel CJ and Gageler J), [132] (Edelman J).
[48] See, eg, Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, [62]-[63] and cases cited.
The applicant drew attention also to the statement by the majority in CNY17 v Minister for Immigration and Border Protection (CNY17)[49] who accepted that the possibility of a purely subconscious effect of irrelevant and prejudicial information on the decision-maker can give rise to a reasonable apprehension of bias.[50] Attention was also drawn to the statement in CNY17,[51] by Nettle and Gordon JJ who, albeit in dissent as to the result, held as follows:
The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later.
Next, the test for apprehended bias does not rest on a finding of actual bias or depend on the final decision actually made. One does not need to find that the irrelevant material affected the decision. One needs only to find that the fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits.
This reasoning confirms that the test is focused – not on the actual effect of the irrelevant information on the decision – but on whether the circumstances might lead a reasonable observer that there might have had the effect necessary to taint the decision-making process. Their Honour’s analysis underscores the importance of the Court giving consideration to what it is that is said might lead to determination other than on the merits of a case and whether a logical connection can be drawn between that complaint and a suggested deviation from the required determination of the case on its merits.
[49] CNY17, (2019) 375 ALR 47.
[50] CNY17, (2019) 375 ALR 47, [51], [92], [97] (Nettle and Gordon JJ), [142] (Edelman J).
[51] (2019) 375 ALR 47, [69]-[70] (original emphasis).
Resolution
It is necessary to recognise that the applicant’s submissions traversed matter going beyond the particulars within which the amended ground of apprehended bias was framed. Specifically, by those particulars, the applicant grounded the allegation of bias on his convictions for domestic violence – not the allegations stemming from the supposed fingerprint match to a 1985 case of handling stolen goods. In this connection, the Reasons made clear that the Tribunal was conscious of the remittal of the application by reason that account had been taken of the 1985 allegations and the decision-maker was unqualified in the view that those allegations were not relevant and that no weight should be attached to them: [3], [43]. In my view, insofar as it was sought to support the claim of bias by reference to the Tribunal’s treatment of the 1985 matching fingerprint allegations, it is appropriate to determine Ground 3 in the way in which it had been framed.
Although the question of apprehended bias is essentially factual, it is necessary to consider the facts of the individual case in light of the particular statutory context.[80] In this case, the bias allegation is raised in the context of a claim for a protection visa made under the Act. In that context, the grant or refusal of the visa turned upon the questions whether the Minister, and here, the Tribunal exercising the Minister’s powers, was satisfied that the applicant satisfied the criteria to be a refugee or otherwise being owed complementary protection by Australia. Those criteria entailed the consideration of the claims which the applicant had made and whether he had a well-founded fear of persecution or whether there were substantial grounds for believing that as a result of being returned to India, there was a real risk that he would suffer significant harm. The statutory context is also provided by Pt 7 of the Act and in particular, the operation of s 424A. As noted, Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the obligations of procedural fairness for the purposes of a merits review under Pt 7.
[80] CNY17, (2019) 375 ALR 47, [93] citing Isbester v Knox City Council (2015) 255 CLR 135, [20].
Within Div 4 of Pt 7, s 424A(1) of the Act obliges a Tribunal in the circumstances where it is engaged to:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Attention was not drawn to any other provision of the Act.
The applicant’s submissions focussed exclusively upon par 424A(1)(a) of the Act as serving to demonstrate that the Tribunal must have formed a preliminary view that his conviction and sentence of imprisonment for offences of domestic violence would be the reason or a part of the reason for affirming the delegate’s decision.
However, at least for the purposes of undertaking the factual examination which is required in the relevantly statutory context, it is also necessary to note two other features of s 424A(1). First is that the requirements of the section are cumulative and distinct. Secondly, par 424A(1)(b) of the Act obliges the Tribunal to ensure that the applicant understands why the information is relevant to the review – why it would be the reason or a part of the reason for affirming the decision under review – and what the consequences of reliance on it may be. Thirdly, and importantly, par 424A(1)(c) of the Act obliges the Tribunal to invite the applicant to comment on or respond to the adverse information.
Taking account of those other features, it is not unimportant to imbue the reasonable lay observer with knowledge that where s 424A is engaged, a Tribunal is obliged to afford the applicant an opportunity to comment on the adverse information. A reasonable lay observer would be taken to know that the purpose of making that invitation would be to allow the applicant an opportunity to rebut the adverse information. And inherent in the obligation to issue the invitation is that the reasonable lay observer would recognise that the Tribunal would be obliged to give proper consideration to the response given in answer to the adverse information. Having regard to the cumulative requirements of s 424A, a reasonably properly informed observer would understand that a decision-maker may be dissuaded of the preliminary view that the information would be the reason or a part of the reason for affirming the decision on review.
Stated in other terms, I consider that the applicant’s submission left out of account the significance to the evaluation of a claim of apprehended bias under Pt 7 of the Act that the reasonable lay observer would recognise at least the following matters:
a)first, that in the discharge of its core function of review, the Tribunal is to be expected to arrive at the correct or preferable decision whether it is satisfied that the criteria for a visa have been established and the visa should be granted or refused;
b)secondly, inevitably, a Tribunal may come into possession of adverse information which may or may not be of any relevance;
c)thirdly, the very fact of possession may engage an obligation to put the information to the visa applicant where it would be the reason or a part of the reason for affirming the decision under review;
d)fourthly, the observer would know that the recipient was to be afforded an opportunity to respond.
This statutory context is relevant to an evaluation of the significance of the particular facts on which an allegation of apprehended bias is advanced. It also serves to underline that apprehended bias is an aspect of a lack of procedural fairness and that the test depends upon a finding that there was a real possibility that the decision-maker might not be open to persuasion or so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. That is to be determined objectively from the perspective of how a reasonable properly informed lay observer might view the matter.
In this case, that is precisely what the s 424A letter said would occur. The adverse information was not hidden but explained to the applicant and who was told that the use of that information would be subject to any response which he provided. As resort to a decision-maker’s reasons if now accepted, it is clear from the Reasons that the Tribunal took steps to conscientiously put it out of his mind and so nullify, withdraw or qualify the effect of the admission of such conviction and sentence.
In addressing the essential first step of identifying what is being said to indicate that a decision was not impartially made, account must be taken of the particular conduct or event that is said to give rise to an apprehension of bias. In this case, the type of conduct said to engage principles of apprehended bias was disqualification by conduct, where the decision-maker’s conduct “either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias”.[81] More precisely, the conduct that was sought to be impugned was the conduct outside of the hearing in sending the s 424A letter shortly afterwards.
[81] AMA16, (2017) 254 FCR 534, [66], citing Ebner, (2000) 205 CLR 337, [24].
In relation to the family violence conviction, the s 424A letter stated that the information was:
. . . relevant because it may lead the Tribunal to the view . . . that you have been convicted more recently of family violence offences, and that your criminal offending indicates you have little respect for Australian laws which may lead the Tribunal to consider that you are not credible.
The consequence of this information being relied on is that this, subject to any comment or response you make, would be the reason, or a part of the reason for affirming the decision that is under review.
(Emphasis added)
In light of the advice of the Tribunal in the s 424A letter, it was said that there could be little doubt that a reasonable observer might have the requisite apprehension. I do not agree. In the context of the whole of the s 424A letter the Tribunal stated that the consequence of the information being relied on was made expressly “subject to any comment or response you make”. Its statement was not made in unqualified terms. It did not say that the information would be the reason, or a part of the reason for affirming the decision that is under review irrespective of any response received from the applicant. The tenor of the letter did not indicate that its mind was so committed to a conclusion that its mind was incapable of alteration whatever the applicant’s response might turn out to be.
Further, having received the information, the Tribunal was not obliged to maintain a neutral state of mind during the entire course of review. If adverse information came into its possession, it was obliged to address it, either in the terms provided by ss 424AA or 424A of the Act. Here, it did both, thereby allowing the applicant an opportunity to address the information during and following the hearing. Treating apprehended bias as an aspect of procedural fairness, the Tribunal observed the requirements of both ss 424AA and 424A. It was not submitted that the Tribunal had not adequately explained to the applicant the consequences of the information being relied upon. The substantive complaint was that having sent the s 424A letter, the decision-making process was irrevocably tainted by an apprehension of bias and in a way that was forever incapable of being redressed.
In the decision record at [44], the Tribunal concluded in relation to the family violence conviction:
The applicant has admitted these and I find that they did occur, but I give no weight to this information in making this decision.
Viewed objectively, the Tribunal could not have done more to indicate that it had conscientiously put the information out of its mind.
The applicant further submitted that the fact that the Tribunal “took the step of making a positive finding” that the family violence offence ‘did occur’ indicated that the Tribunal did not simply put the whole issue aside as irrelevant to the review. This was said to constitute further evidence that the irrelevant information may have had an actual impact on the review, whether consciously or subconsciously, despite the assertion at the end of [44] that the Tribunal had given the information no weight. I do not accept that the Reasons, fairly read, involved the Tribunal in making any such positive finding. The issue was properly put to the applicant for comment. Relevantly, by the letter it had sent on 12 December 2018, the applicant was invited to comment on information held on the departmental file indicating that he had been charged in 2009 with family violence offences for which he had been convicted and imprisoned. By his response, the applicant admitted those allegations, without qualification. Seen from this perspective, I do not agree that the Tribunal made any positive finding. To the contrary no finding was required. The adverse fact was not in issue. It was admitted.
I agree in the applicant’s submission that this allegation of apprehended bias fell for consideration at the point before the Tribunal came to decide the review assessment. The impugned conduct arose from the transmission of the Tribunal’s s 424A letter. Nonetheless, the parties’ submissions seemed to conflate the events surrounding the issue of the s 424A letter with the reasons given by the Tribunal that, having put the allegation to the applicant during the hearing, it was recorded that the applicant admitted the allegation so put. While the resort to reasons now seems to be an acceptable method of evaluating the question of apprehended bias in some case, the adoption of an approach which involved focus on the reasons, ignores that the test does not depend on anything which happens at the time of decision: CNY17.[82]
[82] (2019) 375 ALR 47, [69] (Nettle and Gordon JJ), cf [135] (Edelman J).
I agree that the question of apprehended bias in this case fell to be considered at the time the s 424A letter was despatched to the applicant. Contextually, in this case the s 424A letter was sent to the applicant on 12 December 2018, being the day following the hearing at which the applicant had admitted the allegations but sought the opportunity afforded to him to respond to the issue in writing.
Before the s 424A letter was sent, the Tribunal had both acknowledged that it had before it material relating to the applicant’s charges and convictions for family violence and that they were irrelevant: [44].
Having regard to the foregoing matters, I am not satisfied that in this case, the fact of having sent the s 424A letter raising the applicant’s conviction and sentence for domestic violence was of such a nature as to suggest the Tribunal might have been led to decide the merits review of the application other than on its legal or factual merits. As the applicant’s post-hearing submission accepted, while procedural fairness is codified by Pt 7 of the Act, the Tribunal is obliged to put adverse information to an applicant and afford him or her an opportunity to comment “where the Tribunal has already considered that, subject to anything that applicant had to say in response, such information would be a part of the reason for affirming the decision under review.”
Turning to the second and no less essential element of the test (that there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits), the applicant’s submissions were cast in terms which admitted of no possibility other than that the fact of the s 424A letter, in and of itself, meant that a fair minded lay observer might reasonably regard the Tribunal as irrevocably fixed in its preliminary view that the applicant’s conviction for family violence was the reason or at least a part of the reason why the Tribunal would affirm the decision under review.
I do not accept that this represents the view which would be taken by a reasonable lay observer with a sufficient understanding of the statutory context in which such letters are despatched. More specifically, I consider that such a person would recognise that: (1) the Tribunal had first raised the issue with the applicant in the course of the hearing pursuant to its obligation under s 424AA of the Act; (2) the Tribunal had accorded the applicant the opportunity to defer the provision of his response to the matter; (3) the Tribunal’s letter was framed in terms which acknowledged that its preliminary view of the significance of the family violence convictions was subject to any response which the applicant might provide; (4) at the time of sending the letter the Tribunal had not received any such response; (5) the Tribunal was not required to maintain a neutral state of mind during the entire course of review of a delegate’s decision; (6) the Tribunal would be taken to be conscious of its obligation to consider any response received from the recipient of the letter. In addition to my lack of satisfaction as to the first essential element of the test being made out, those considerations persuade me that the essential logical connection between the fact of having issued that letter and a feared deviation from the course of deciding the case other than on its merits is also not made out.
I also accept that the present case differs markedly from the two cases relied upon by the applicant: namely, CNY17 and FSG17.
In CNY17, the Court was concerned with the Authority – not a Tribunal – and a statutory context in which the Authority had to consider information provided by the Secretary. CNY17 arose in the statutory context of Pt 7AA of the Act, not Pt 7. Further, as Nettle and Gordon JJ noted, the information which was prejudicial to the applicant had been hidden from the applicant.[83] Nor had it been referred to in the Authority’s reasons. Nettle and Gordon JJ, who stated that their conclusion depended “on the facts of this case”,[84] accepted that where a decision-maker had the power to invite an applicant to comment on information, in some cases “that would be the best way of avoiding an apprehension of bias”.[85] This is precisely what occurred in this case.
[83] CNY17, (2019) 375 ALR 47, [100].
[84] CNY17, (2019) 375 ALR 47, [101].
[85] CNY17, (2019) 375 ALR 47, [101].
In a similar vein, in FSG17, the Authority had “cogently explained why the information was irrelevant to the decision and stated that the Authority would disregard the information in making its decision”.[86] The Full Court noted that in “many cases, those actions by the Authority would be expected to assure a fair-minded lay observer that the Authority has brought an impartial mind to its decision”.[87]
[86] FSG17, [2020] FCAFC 29, [39].
[87] FSG17, [2020] FCAFC 29, [40].
The present case can also be properly distinguished from FSG17 in that the impugned information was there found to be “of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa”.[88]
[88] FSG17, [2020] FCAFC 29, [42].
In neither FSG17 nor CNY17, had the Authority invited the applicant to comment on the irrelevant and prejudicial information.
In this case, the Tribunal adopted precisely the course suggested as being appropriate in some cases to counteract an apprehension of bias – it invited the applicant to comment on it. Consequently, the Tribunal did not keep the information ‘hidden’. Insofar as resort to the Reasons was considered permissible and appropriate, the Tribunal expressly referred to the information in its Reasons and gave a clear and logical explanation as to why the information was given no weight: [43]-[44]. I agree that in doing so, the Tribunal thereby assured a fair-minded lay observer of its impartiality. Its Reason’s made plain that it had taken account of the applicant’s response and disregarded the conviction and sentence.
I also accept that the information in this case was not of such a highly prejudicial nature that the taint of apprehended partiality was incapable of being redressed. In this case, the information related to convictions for family violence offences and a breach of bail. Offending of that kind is in sharp contradistinction to the prejudicial information in FSG17.
On the facts of this case, I do not accept that a properly informed fair minded observer might reasonably consider that the Tribunal’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” I am not satisfied that the applicant has demonstrated a logical connection between the impugned conduct and the feared deviation from the merits merely by the issue of the s 424A letter.[89]
[89] CNY17, (2019) 375 ALR 47, [69] (Nettle and Gordon JJ).
Ground 3 is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 17 December 2020
2