BOO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3461
•18 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
BOO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3461
File number(s): BRG 365 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 18 December 2020 Catchwords: CITIZENSHIP AND MIGRATION – Migration – apprehended bias – funded to consider evidence – no jurisdictional error established. Cases cited: ALA15 v MIBP [2016] FCAFC 30
Burgess v MIAC [2018] FCA 69
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
MH6 v Mental Health Review Board & Anor [2009] VSCA 184
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
MIMA v Jia Legeng (2001) 205 CLR 507
MIMA v Yusuf (2001) 206 CLR 323
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Singh v MIMA (1998) 53 ALD 571
Smits v Roach [2006] HCA 36
SZSMD v Minister for Immigration and Border Protection [2015] FCA 202
Number of paragraphs: 56 Date of last submission/s: 25 November 2020 Date of hearing: 25 November 2020 Place: Brisbane The Applicant: Self-represented Counsel for the First Respondent: Mr McGlade Solicitors for the First Respondent: Sparke Helmore The Second Respondent: Entered a submitting appearance ORDERS
BRG 365 of 2019 BETWEEN: BOO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
17 DECEMBER 2020
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs.
2.The amended application filed on 30 October, 2019 be dismissed.
3.The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
By his amended application filed on 30 October, 2019 the applicant seeks judicial review of a decision of the second respondent made on 19 March, 2019 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Safe Haven Enterprise (Subclass 790) visa.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
I have written submissions from both parties. The applicant’s submissions were prepared by his former lawyers who, by the time of the hearing before me, had ceased to act for him. The applicant made oral submissions in support of his application.
BACKGROUND
The background to the present application is set out in the written submissions filed by the first respondent. It was not suggested that that background was inaccurate in any way. Having regard to my own consideration of the material in the court book and the second respondent’s reasons for decision, I have formed the view that it is accurate.
The applicant is a citizen of Rwanda. He entered Australia on 4 April, 2018 as the holder of a Temporary Activity (subclass 408) visa associated with his work as a journalist covering the Gold Coast 2018 Commonwealth Games. Upon arrival at Brisbane Airport, the applicant disclosed that he had travelled to Australia to cover the Commonwealth Games but had possible intentions to apply for a protection visa after the Commonwealth Games had finished. His 408 visa was cancelled on the basis that he did not have a genuine intention to stay in Australia temporarily to carry out the work for which the 408 visa was granted and he was taken into immigration detention.
On 23 April, 2018 the first respondent’s Department received the applicant’s application dated 19 April, 2018 for a Safe Haven Enterprise (Subclass 790) visa.
The applicant’s claims for protection were advanced in his statutory declarations dated 14 May, 2018, 17 October, 2018 and 10 January, 2019 (the latter only being used by him before the second respondent). He claimed that he commenced working as a journalist for the Ingenzi newspaper in 2013. He said that the newspaper is independent, often reported on corruption and is viewed as suspicious by the government. He had written several articles about corruption in Rwanda. In 2017 his employer was arrested and detained for two days in relation to publications in the newspaper.
He claimed that in 2014 his cousin Emile Gafirita was abducted by unknown assailants in Kenya when he was scheduled to give evidence against President Kagame in a French inquiry. In 2014, he met up with his cousin. Shortly after, a Rwandan police officer arrested the applicant and accused him of being a supporter of the opposition party, the Rwandan National Congress. From 2014 through to late 2017, the applicant claimed that he had been detained roughly once per month by the authorities.
In summary, he claimed to fear persecution if returned to Rwanda based on:
(a)his reporting as a journalist; and
(b)his imputed membership of an opposition political party.
On 5 November, 2018 a delegate of the first respondent refused to grant the applicant the Safe Haven visa.
On 7 November, 2018 the applicant sought review of the delegate’s decision by the second respondent. On 18 January, 2019 the applicant appeared at a hearing before the second respondent with his agent and an interpreter.
On 19 March, 2019 the second respondent affirmed the delegate’s decision to refuse the visa.
In its reasons for decision, the second respondent recited the applicant’s written evidence and his oral evidence to the second respondent given at the hearing attended by the applicant. The applicant claimed that he had wanted to leave Rwanda since 2015 because he had troubles with the government.
The second respondent recorded that the applicant claimed that his passport was destroyed in a fire and he applied for a new passport prior to departing Rwanda. He told the second respondent that he had no difficulties leaving Rwanda or arriving in Australia. He claimed that his travel companion, a Mr O, had paid his (Mr O’s) cousin, an airport worker, to ensure that the applicant and Mr O were not on any security systems at the airport which would prevent their departure.
The second respondent did not accept any of the applicant’s claims. The second respondent found the applicant’s evidence to be lacking in detail and credibility and frequently implausible. Whilst the second respondent considered it understandable that the applicant may have been nervous at the hearing, it was satisfied that there was an able interpreter and that the applicant was given every opportunity to make his case both at the hearing and in subsequent written submissions. It considered that the cumulative effect of the deficiencies in the applicant’s evidence, together with the plausibility concerns, were so significant that they tainted the entirety of the applicant’s claims. The second respondent noted that despite the applicant claiming that he was in fear of his life and wanted to depart Rwanda from 2015, he did not depart until early April, 2018 once he was granted a valid visa to travel to Australia on 1 December, 2017. The delay in departing Rwanda following the grant of the relevant visa troubled the second respondent. The second respondent considered a submission made by the applicant in relation to the process for obtaining and receiving press accreditation for the Commonwealth Games for the purpose of explaining that delay but it noted that there was nothing in the documents provided to the second respondent to indicate that the visa was not valid for travel from the time it was granted to him. The second respondent considered that the press accreditation process was separate from the grant of the visa. The second respondent did not accept that the applicant could not have travelled prior to receiving his press accreditation. The second respondent formed the view that the applicant was content to remain in Rwanda until he received his accreditation because he had no fear of persecution, well-founded or otherwise.
The second respondent found that the applicant’s account of his departure from Rwanda and claims of bribing Mr O’s cousin in order to depart undetected was so implausible so as to be fanciful. It noted that the applicant was unable to provide any relevant detail about what Mr O’s cousin would do for the bribe provided. The second respondent recounted the applicant’s evidence that he maintained a quiet voice so as to not come to the attention of the authorities, but at the same time claimed that they could find him anywhere and at any time, and that the propositions could not both be true. The second respondent found that there was no plausible evidence before it to enable it to find that the applicant had an adverse profile with the Rwandan authorities such that they would be interested in seeking him out, preventing him from leaving the country or otherwise seeking to harm him for any reason.
The second respondent accepted that the applicant was a sports journalist with the Ingenzi newspaper. The second respondent considered the letter from the publisher confirming that he reported on political matters and that those articles were published in the publisher’s name in order to protect the individuals from harm. However, the second respondent found it difficult to understand how the applicant could be arrested and persecuted for an article that appeared in someone else’s name. It did not accept that the applicant wrote articles of concern to the authorities. It noted that the editor of the publication still publishes and has an online presence and it was therefore difficult to accept that the applicant or any of his colleagues faced persecution for articles that did not appear in their name in a newspaper that the government appears to, at the very least, tolerate.
Even if the applicant had written about sensitive political matters, the second respondent noted that they did not appear under his name and did not result in the government taking any action against the publisher of that newspaper or journalist who did put his name to the article. It considered that the account provided by the applicant of his journalism activities lacked relevant details and credibility.
Whilst the second respondent accepted that some journalists had come to the adverse attention of the authorities by reason of their writing and some had been arrested, detained and persecuted, it found that the applicant had not been arrested or charged with any crimes. It considered that his account of monthly harassment by the authorities was negated by his claim that he did not come to the attention of the authorities because he kept quiet and did not accept this account was plausible. The second respondent did not accept that the applicant faced persecution or significant harm of any kind by reason of his sports or political journalism should he return to Rwanda.
The second respondent considered whether the applicant would face harm as a failed asylum seeker. It referred to the applicant’s evidence that the Rwandan Sports Minister had commented that any member of the Commonwealth Games team who remained in Australia had committed an act of treason. The second respondent noted that the Minister did not refer to journalists in his comments and it was difficult to see how his return to Rwanda would come to the attention of the authorities for any reason. It noted that there was no reason to believe that the Rwandan government would become aware that the applicant had sought asylum, particularly given he had done nothing in Australia to raise his profile such that anyone would form an adverse opinion or detain or arrest him.
The second respondent was not satisfied that the applicant would be at risk for the reasons he claimed or for any reason if he returned to Rwanda, having considered all of his claims cumulatively and individually. It rejected his claims for refugee protection.
On the basis of its findings concerning the matters upon which the applicant relied to establish his refugee protection claims, the second respondent was not satisfied that the applicant was a person to whom Australia owed complementary protection obligations and, accordingly, affirmed the decision to refuse the grant of the visa.
THE GROUNDS OF REVIEW
The amended application for judicial review filed on 30 October, 2019 contains two grounds of review. The first ground is in the following terms:
1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error because the circumstances in which the Tribunal's decision was made give rise to a reasonable apprehension of bias:
(a) On 18 January 2019, the Tribunal conducted a hearing and heard oral evidence from the Applicant about various issues, including:
(i) His travel to Australia with his colleague, the applicant in Case Number 1832693.
(ii) His claim that he joined the applicant in Case Number 1832693 in bribing the applicant in Case Number 1832693's cousin, who worked at the airport, to facilitate their safe departure from Rwanda in 2018.
(b) On 25 February 2019, the Tribunal made a decision regarding the applicant in Case Number 1832693's visa application and made findings that included:
(i) Rejection of the applicant in Case Number 1832693's credibility generally.
(ii) A conclusion that the applicant in Case Number 1832693 "concocted" his account of bribing his cousin, who worked at the airport, to facilitate safe departure from Rwanda in 2018.
(c) The Tribunal issued its decision regarding the Applicant's visa application on 19 March 2019.
(d) The Tribunal did not at any point disclose to the A from Case Number 1832693 or that it had made adverse findings about the a lil Case Number 1832693's credibility or his claim about bribing his cousin.
(e) A fair-minded, properly informed lay observer might reasonably apprehend that the findings the Tribunal made regarding the applicant in Case Number 1832693 might have influenced its determination of the same issue in the Applicant's case.
It is common ground between the parties that administrative decisions such as that presently under consideration are liable to be set aside on review on the basis that the decision-maker was affected by a reasonable apprehension of bias: MIMA v Jia Legeng (2001) 205 CLR 507.
In his generally accepted formulation, the test requires the Court reviewing an administrative decision to ask whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; see also Burgess v MIAC [2018] FCA 69.
In Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 the plurality summarised the test in the context of administrative decision-making in the following terms at [37]:
An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425 at [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14]-[21] per Allsop J, with whom Moore and Tamberlin JJ agreed.
Establishing apprehended bias generally requires an applicant to:
(a)identify a matter which is said might lead a decision maker to decide a matter other than on its merits; and
(b)identify a connection between that matter and the feared deviation from a course of deciding a case on its merits.
ALA15 v MIBP [2016] FCAFC 30 at [36].
The test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias.
Here, the applicant points to the following matters, none of which are controversial, which are said might lead the second respondent to decide a matter other than on its merits:
(a)the applicant left Rwanda in the company of a ‘Mr O’;
(b)Mr O applied for a protection visa in Australia and was refused that visa at first instance. He sought review of that decision by the second respondent;
(c)the Tribunal member who heard the applicant’s matter also heard Mr O’s matter;
(d)the applicant’s matter was heard by the Tribunal on 18 January, 2019, with further written submissions provided on 14 February, 2019;
(e)Mr O’s matter was determined on 25 February, 2019 and a hearing before the second respondent in relation to his matter took place prior to the hearing in the applicant’s matter;
(f)the second respondent gave its decision in the applicant’s matter on 19 March, 2019 after it had determined Mr O’s matter; and
(g)at no time did the Tribunal member disclose that she had heard and determined Mr O’s matter.
The applicant submits that if a fair minded observer was aware of the above as well as the commonality between the applicant’s case and Mr O’s, they would conclude that the second respondent’s member would not bring an impartial mind to deciding the applicant’s matter because they would necessarily make the same decision twice, and so had not come to the applicant’s matter with an open mind.
The applicant argues that there is a significant overlap between his case and Mr O’s case and the way in which the second respondent dealt with each case. The overlap is conveniently summarised in the applicants written submissions in the following way (footnotes omitted):
The applicant’s claims
14. As set out by the Tribunal, the applicant relevantly claimed:
(a) to be a journalist who had written about corruption and political issues at the Ingenzi newspaper in Rwanda;
(b) the editor of the newspaper was arrested and detained, and the newspaper was closed for three months; and
(c) to have left Rwanda ‘with a colleague’ (Mr O) to cover the Rwandan Commonwealth Games team.
15. He claimed that Mr O had bribed an official (Mr O’s cousin) as they left Rwanda. At paragraph 20 of the Reasons, the Tribunal recorded:
Later on the applicant told the Tribunal that his travel companion, ‘Mr O’, had paid his cousin, an airport worker, some money to ensure that he and Mr O were not on any security systems at the airport which would prevent their departure. Asked what security systems he was referring to and what Mr O’s cousin had undertaken to do to help them, the applicant said that the systems could record if you had been arrested and, since both he and Mr O had been arrested in the past, they would be stopped.
16. That account was rejected by the Tribunal in these terms:
The applicant’s account of his departure from Rwanda and claims of bribing Mr O’s cousin in order to departed undetected is so implausible as to be fanciful. He was unable to provide any relevant detail about what Mr O’s cousin would do for the bribe provided…
17. Finally, while the Tribunal accepted that the applicant was a journalist, it did not accept that he was persecuted by reason of his journalistic activities because:
(a) the articles to which he referred were published under another name;
(b) it did not accept he wrote articles of concern to the authorities; and
(c) the Ingenzi newspaper ‘still publishes and still has an online presence’.
18. The Tribunal thus expressed the opinion that ‘it is difficult to accept that the applicant or any of his colleagues face persecution for articles that did not appear in their name in a newspaper that the government appears to, at the very least, tolerate’ (emphasis added).
Mr O’s claims
19. Like the applicant, Mr O claimed:
(a) to be a journalist ‘covering sensitive political and other stories’ at the Ingenzi newspaper;
(b) the editor of the newspaper was arrested and the publication suspended for three months; and
(c) he travelled to Australia to cover the Commonwealth Games.
20. The Tribunal set out Mr O’s claim that he bribed his cousin as follows:
The applicant told the Tribunal that the only way he was able to depart the country on his passport was to bribe officials at the airport. He said that he paid his cousin, who worked [in Occupation 1], a large sum of money to ensure that he and his friend would be able to depart without being shopped. When asked why he thought he wold be prevented from leaving, and what his cousin would be able to do to ensure that he could leave, the applicant was unable to explain anything other than stating that his cousin was in “[details deleted]” and could ensure his departure.
21. It rejected the claim at paragraph 63 of its reasons on Mr O’s application:
The Tribunal does not accept this explanation. The Tribunal does not accept that the applicant bribed anybody to obtain clearance to depart Rwanda or that he was of interest to the authorities such that they would prevent his departure. It seems to the Tribunal that if the applicant did have a genuine fear of being detained upon his departure he would have sought to obtain a guarantee or at least a sound explanation from his cousin about what measures had been taken on his behalf. At the very least, such information would ensure the applicant would provide consistent information if asked, for example. He did not do so. The Tribunal finds that the applicant concocted this account in order to support his protection claims. [emphasis added]
22. Regarding Mr O’s journalistic activity, the Tribunal:
(a) did not accept that he could have been arrested for an article not published in his name; and
(b) pointed out that the newspaper ‘was still publishing and operating a website’, such that Mr O ‘had nothing to fear if he returned to Rwanda’.
23. In similar terms to the view it would later express in the applicant’s matter, the Tribunal said of the Ingenzi newspaper:
…the fact that [Workplace 1] continues to publish and have an online presence is at significant odds with the applicant’s claim that [Workplace 1] is opposed to the Government. In the Tribunal’s mind, if this was the case and the government as opposed to political opposition as the applicant claims, [Workplace 1] would have been shut down and its publisher charged and convicted with a crime and imprisoned or, at least, forced to flee.
The applicant directs my attention to the decision in Singh v MIMA (1998) 53 ALD 571, where on a factual scenario which the applicant contends it is analogous to his case, the Federal Court found that there was a reasonable apprehension of bias on the part of the decision-maker in that case. The applicant submits that Singh is an example of the operation of the principle that is instructive in the present proceedings. The applicant argues that, in the context of the present case and its facts the test for apprehended bias might best be considered as posing the question “whether the relationship between two matters is such that a fair minded lay observer might apprehend that the Tribunal member might not bring an open mind” to the resolution of the later matter.
It will be observed from ground one that the assertion that the second respondent’s decision was affected by apprehended bias is based upon the proposition that the second respondent dealt with Mr O’s case and determined that case before it determined the applicant’s case. It rejected Mr O’s case and his credibility generally and found that Mr O concocted his story about bribing his cousin who worked at the airport to facilitate his safe departure from Rwanda in 2018. The applicant asserts that he was not informed by the second respondent that it had decided Mr O’s case or that it made adverse findings about him or his claims. The applicant argues that the core features of each case, namely that Mr O and the present applicant both claimed:
(a)to be journalists in Rwanda;
(b)to have written articles on political subjects for the same newspaper;
(c)to have come to the attention of the authorities; and
(d)to have bribed Mr O’s cousin in order to leave Rwanda without coming to the attention of the authorities
were dealt with by the second respondent in the same way in each case. The applicant submits that a fair minded lay observer would conclude that when it came to decide the applicants matter, the second respondent would inevitably decide those matters adversely to the applicant, given that it had already decided them adversely to Mr O. It had “formed and expressed a judgment” about them, such that a fair minded lay observer would conclude that the second respondent had closed her mind on those issues. The submissions conclude:
30. More particularly, a fair minded lay observer who was acquainted with both decisions would conclude that the Tribunal member had not brought an open mind to the applicant’s case, given that she had already concluded (in her decision concerning Mr O) that:
(a) the account of bribing Mr O’s cousin had been ‘concocted’; and
(b) because the Ingezi newspaper was still permitted to publish, none of its employees could be subjected to persecution by reason of their journalistic activity for that newspaper.
31. The hypothetical observer would conclude that there was little to no prospect the Tribunal member would issue inconsistent decisions on the same facts, and that the rejection of Mr O’s credibility inexorably entailed the rejection of the applicant’s credibility. In the mind of that observer, there would be little if any possibility that the applicant could have said anything to make her reverse her previous conclusions. That is sufficient to establish a reasonable apprehension of bias and jurisdictional error.
Thus, by reference to what the second respondent actually decided in the applicant’s case, he argues that the fair minded lay observer would conclude that the second respondent had not or would not bring an open mind to the resolution of the applicant’s case.
However, as the first respondent demonstrates an argument, to reason in that way is impermissible. Why that is so is explained by the High Court in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 at [32]-[33] and [67]:
As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”
Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
….
...An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.
Michael Wilson was applied in SZSMD v Minister for Immigration and Border Protection [2015] FCA 202 at [126] – [131] in the context of an administrative decision made under the Migration Act. Recourse to the second respondent’s decision in the present case so as to compare the similarities between it and Mr O’s case does not assist the applicant’s argument. The assertion of apprehended bias must be determined by reference to the objective facts available before the second respondents decision was made in the present case. As the applicant submissions made clear they are limited to the matters that I have ready extracted above.
In my view, a fair minded lay person might not think that the second respondent in this case might not bring a fair and impartial mind to the making of a decision and the applicant’s case. A decision and the applicant’s case would require a consideration of the evidence presented by the applicant to the second respondent and, even in respect of the “common issues” between the applicant’s case and that of Mr O, it is highly likely that the evidence would differ. Whilst the second respondent found that Mr O was not a credible witness, that did not carry with it the proposition that the second respondent would therefore find the applicant was not a credible witness. Fair minded lay observer is entitled to take into account that the decision-maker is acting in a professional capacity and bound by an oath of office.
In my view, the applicant has not firmly established his allegation of a reasonable apprehension of bias on the part of the second respondent in this matter.
In any event, as the first respondent points out, the factual basis upon which the applicant builds his apprehended bias case is not accurate. The evidence before me demonstrates that the same migration agent that represented the applicant here, also represented Mr O. There is no dispute between the parties about that. That agent was aware that the same Tribunal member was dealing with both cases. That two is uncontroversial. As the first respondent points out, over three weeks passed between:
(e)Ms Hogarth, as Mr O’s authorised representative, receiving the second respondent’s decision in Mr O’s review application on 25 February, 2019; and
(f)the second respondent delivering its decision in the applicant’s review application on 20 March, 2019.
A right to object on the grounds of bias may be waived if a litigant who is aware of the circumstances constituting a ground for such objection fails to object: Smits v Roach [2006] HCA 36 at [43]. The applicant is to be imputed with the knowledge possessed by his solicitor Ms Hogarth as to the second respondent’s findings in Mr O’s matter, even though Ms Hogarth gained that knowledge in a capacity other than as the applicant’s solicitor. Smits v Roach at [47]. I also accept the first respondent submission that in addition to the applicant being imputed with his solicitor’s knowledge of the content of Mr O’s decision, his solicitor is also to be imputed with “the extent of knowledge of [her] client’s basic legal rights which a reasonably equipped solicitor and counsel would have.”: MH6 v Mental Health Review Board & Anor [2009] VSCA 184 at [48].
I am satisfied that even if it was the case that the matters identified by the applicant here result in a conclusion that a fair minded lay observer might reasonably apprehend that the second respondent would not bring an impartial mind to the resolution of the applicant’s claims, the applicant has waived his right to object to the second respondent dealing with his application. He was possessed of all of the relevant facts which he now contends demonstrate an apprehension of bias on the part of the second respondent. Nonetheless, he stood by and took no issue with the second respondent determining his application for review. He has only raised these matters after the unfavourable decision from the second respondent. In the circumstances of this case, he should not be permitted to do so.
For these reasons, ground one of the amended application for review does not reveal jurisdictional error on the part of the second respondent.
The second ground of review is in the following terms:
2. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error because the Tribunal failed to properly consider an important part of the Applicant's claims or an important part of the material relied on by the Applicant:
(a) In support of his claim for protection, the Applicant relied on video recordings of certain media reports that he had presented in Rwanda (at least one of which related to a report regarding political matters).
(b) The First Respondent's delegate, in the course of deciding the Applicant's visa application, accepted that the Applicant did present the programs depicted in the video recordings.
(c) The Tribunal failed to consider or make any findings about the video recordings
(d) The Tribunal failed to consider the Applicant's risk profile having regard to the video recordings.
As to this ground, again, the principles are not in dispute. The failure to consider material in a manner which affects the exercise of power amounts to jurisdictional error: MIMA v Yusuf (2001) 206 CLR 323 at [82]-[84]. However, the test for determining whether jurisdictional error has occurred by reason of a failure to consider evidence is different to the test for determining whether jurisdictional error has occurred by reason of a failure to consider claims made by the applicant: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [112]; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]. In the case of corroborative material, whether a failure to consider that material rises to the level of jurisdictional error will depend on the cogency of the material and its place in the assessment of the applicant’s claims: SZRKT at [112].
Here, the applicant contends that the second respondent failed to have regard to three (although the applicant contends in his written submissions there were two) video recordings evidencing his work as a political journalist which he claimed cooperated his claims about the nature and extent of his journalistic work in Rwanda. It is not alleged that the second respondent failed to consider a particular claim made by him.
The relevant evidence that the applicant claims was not considered appear to be three video recordings, the first recording was a “report on the last days of campaigning in the Kenyan presidential election in 2017, in which the focus was “on the mood of Kenyans before the election” and on two candidates, namely “Uhuru Kenyatta and the opposition leader Raila Odinga. The second recording concerned “the United Nations’ sanctions against North Korea. The third recording was not mentioned by the applicant in the statutory declaration that referred to the other two recordings. His solicitor told the Department that the third recording concerned “passengers’ complaints about poor service delivery by Royal Express, which is said to be a “transport company in Kigali”.
There is no dispute that the second respondent did not refer to these three recordings in its reasons for decision. The applicant argues that it cannot be suggested that the recordings were “considered, but not mentioned because [they] were not material”. The first respondent argues that the appropriate inference to be drawn from the absence of any explicit reference to the three recordings in the second respondent’s decision record is that the second respondent did not consider that evidence to be relevant. The fact that matter is not referred to in the second respondent’s reasons does not necessarily mean that the matter was not considered by the second respondent. A court is entitled to infer that any matter not mentioned in the second respondent’s reasons was not considered by the second respondent to be material: Yusuf at [69]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] - [34]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67.
The applicant claimed to fear harm from the Rwandan government because the newspaper that had employed him had published “sensitive material about politics in Rwanda and the government”. The applicant did not claim to fear harm from the Rwandan government because he had published, apparently independently of the newspaper, the recordings or because his journalistic work covered foreign affairs. In his statutory declaration made on 17 October, 2018 and witnessed by his solicitor, the applicant said:
Online presence as a sports journalist
4. I am a sports and political journalist and have written many different articles. However, my online presence as a journalist is mostly in relation to articles I have written about sport, particularly football. It is not safe for me to publicise that I am a political journalist. I can give my opinions publically about sport but not about politics. It is too dangerous. Even on social media I am unable to do write political posts because there is no Freedom of Speech in Rwanda and the government will be able trace the posts back to me.
5. Being a journalist in Rwanda comes with risks. In general, though, reporting about sport is not as controversial as reporting about politics and the government. For this reason, many of my articles online have been written about sport and not the government. However, not all of them are about sport.
6. I have attached a video file where I report on the last days of campaigning in the Kenyan presidential election in 2017. The focus of the report is on the mood of Kenyans before the election. The report focused on two of the candidates, Uhuru Kenyatta and the opposition leader Raila Odinga. The video file also contains a story I reported on about the United Nations' sanctions against North Korea.
7. In Rwanda, the use of voice work via radio and videos by journalists is a normal practice as it is a popular way to receive international news.
8. I also reported about the government. However, these newspaper articles were never published using my own name. It was common practice for news reports on the government or politics to be published under the name of the boss of the Ingenzi Newspaper, Ephrem Nsengumuremvi.
9. When articles were uploaded onto the website, they would often be published under one of the editors' names. For example, one of the editors of the website is Louis Murenzi, another is Claude Kimenyi and a third editor is Francois Nsabimana.
10. The reason that my articles were often published under boss' name or the editors' names was for security reasons. It was a way minimise the exposure of the journalists working for the paper and protect their identities.
11. In December 2017, I was detained because of a sports story.
12. I never used my name for political articles however, the authorities would still be able to trace me because of an article I wrote about misused money. The police did an investigation of this article and in doing so, they questioned people who gave their stories for me to report on. These people would be able to identify me if the authorities asked them to.
The first respondent points out that the newspaper articles the applicant had published through the newspaper (albeit not under his name) about the Rwandan government, not the recordings, were the basis of the applicant’s claim to fear harm from the Rwandan government. On a fair reading of the applicant’s claims, I think that is correct. If he claimed to fear harm because of the three recordings there would have been no need for him to explain the anonymous manner in which his newspaper articles were published because his statutory declaration does not suggest that his identity was concealed in the video recordings.
As I have set out above, the applicant, through his solicitor, made a post-hearing submission to the second respondent. In that submission, the applicant claims that he was a journalist that reported on politically sensitive topics was reiterated. Over the course of 2 ½ pages of that submission, the applicant emphasised the evidence upon which he relied to make good that claim. He provided further evidence. However, not once did he refer to the video recordings is evidence of him reporting on politically sensitive issues. In his submissions to this Court, the applicant claims that the videos demonstrate him reporting on politically sensitive issues. But that the content of those videos is “politically sensitive” is not immediately apparent. There was no explanation before the second respondent or this Court as to why one might conclude that the content of those videos was “politically sensitive”. The failure by the applicant to refer to that material in his post-hearing submission tends to underscore that the content of those videos was not “politically sensitive”.
Some of the evidence upon which the applicant relied to prove this claim did not refer to the video recordings in circumstances where one might have expected them to do so. As the first respondent points out, the letter of support from the newspaper owner made no mention of the recordings, despite the function of that letter being to corroborate the applicant’s claim that his journalistic endeavours had led to him coming to the attention of the Rwandan government. The letter said this: “[The applicant] is one of our staff members who faced serious problems because of news he covered in our newspaper among them an article he wrote in 2017 on disappearance of funds dedicated to the needy and the poor”.
The first respondent argues and I accept, that in light of the evidence before the second respondent and the submissions made to it, it is likely that the second respondent considered that the applicant provided the recordings to it to prove he was a journalist that commented on matters other than sport in light of the evidential issues he faced in proving his non-sport-related journalistic work with the newspaper by reason of the anonymous manner in which those articles were published. The applicant did not claim that by reason of the publication of the video recordings any particular action was taken against him or threatened against him. That seems consistent with the proposition that the content of the videos was not politically sensitive and that the provision of them to the second respondent was for the purposes of demonstrating the applicant’s journalistic endeavours in fields other than sport.
I accept the first respondent’s submissions that that the second respondent did not need to engage with the recordings to resolve whether the applicant undertook journalistic work on topics other than sport. The second respondent resolved the broader claim of whether the applicant faced persecution or significant harm by reason of his “sports or political journalism or journalism of any kind should he return to Rwanda” by assuming, in his favour, that he had written about sensitive political matters:
53. The Tribunal accepts that the applicant was a sports journalist with the Ingenzi newspaper. The Tribunal also notes a letter from Ephrem Nsengumuremyi, director of the Ingenzi Newspaper which affirms that the applicant reported on political issues and that he faced problems in relation to articles that he wrote about corruption and also about a general in the army.
54. The applicant has also provided a copy of a letter from Mr Fred Muvunyi, an exiled journalist, affirming that it is common practice to have articles signed by the editors when reporting sensitive information. The letter does not mention the applicant's name. The Tribunal gives this letter no weight as supporting evidence.
55. There is also a letter purportedly by a colleague of the applicant who was forced into exile in 2014. That colleague states that the applicant is one of many journalists who have been forced into exile because of political articles that they have written. However it seems to the Tribunal that the author of this letter was not in Rwanda at the time the applicant claims to have written the articles for which he is now being persecuted. The Tribunal places little positive probative weight on this letter.
56. The applicant claims that journalists in Rwanda who report on sensitive political matters are targeted and he does not like the lack of freedom and the restrictions that are placed on what he can report on. He has la (sic) letter allegedly from his publisher Ephrem that confirms that he reported on political matters and that those articles were published in his Ephrem's name in order to protect the individuals from harm. He states that the applicant wrote an article which caused him to be arrested. The letter is not on letterhead.
57. It is difficult to understand how the applicant could be arrested and persecuted for an article that appears in someone else's name. The Tribunal does not accept that the applicant wrote articles of concern to the authorities. The editor of the publication still publishes and still has an online presence. It is difficult in such circumstances to accept that the applicant or any of his colleagues face persecution for articles that did not appear in their name in a newspaper that the government appears to, at the very least, tolerate.
58. Even if the applicant has written about sensitive political matters, they did not appear under his name and did not result in the government taking any action against the publisher of that newspaper or the journalist who did put his name to that article. The account by the applicant of his journalism activities lacks relevant details and credibility.
Having regard to those paragraphs and the way in which the applicant presented his case to the second respondent for determination, I am satisfied that the omission of any reference in the second respondent’s reasons for decision to the recordings can and should be sensibly understood as a matter considered, but not mentioned because it was not material.
In my view, ground two does not establish any jurisdictional error on the second respondent’s part.
CONCLUSION
The grounds of the amended application pursued by the applicant do not reveal jurisdictional error. The amended application must be dismissed with costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 18 December, 2020t. Dated: 18 December 2020
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