BQG16 v Minister for Immigration
[2018] FCCA 931
•29 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQG16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 931 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Iran due to conflict with the Basij – applicant not believed – applicant receiving hearing invitation late – request for an adjournment denied – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) was biased or whether the refusal of an adjournment was legally unreasonable considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.360, 425, 425A, 427, 441A, 441C, 477 |
| Cases cited: Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1; [2004] HCA 62 CKA15 v Minister for Immigration [2017] FCA 1327 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 |
| Applicant: | BQG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1688 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 6 December 2017, 16 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Ms S Palaniappan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 6 April 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1688 of 2016
| BQG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 April 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the applicant’s written submissions filed on 3 April 2018.
The applicant is a 29 year old Iranian male, originally from Lorestan Province, later moving to Isfahan Province.
The applicant arrived in Australia on 28 March 2013 as an “irregular maritime arrival” and applied for a protection (Class XA) visa on or about 20 June 2013.
The visa application was accompanied by a statutory declaration dated 20 June 2013, in which the applicant said that in Iran he had worked at a factory which was run by current and past members of the Sepah, the Islamic Revolutionary Guard Corps, and, along with other employees at the factory, was asked to join the Basij[1] and present his Basij membership card at work.
[1] a paramilitary militia
The applicant said that he was one of a group of workers at the factory who did not want to join the Basij. He believed the Basij to be associated with human rights violations and did not subscribe to its way of thinking. There was an argument between the management and the group and some in the group began insulting the Basij and the Sepah. The Basij came to the factory and the applicant was detained and beaten. The applicant was made to sign a “promissory note” saying that he would comply with their demands from then on.
The applicant’s statutory declaration continues that, after his release, the Basij came and searched his home three times, each time appearing to be looking for an excuse for him to be punished and seeking to intimidate him for not joining the Basij.
The applicant feared for himself and his family, particularly his sick mother, and decided to leave Iran.
Lodged with the applicant’s visa application were copies of the applicant’s Iranian national identity card, drivers license and birth certificate, amongst other things.
The applicant attended an interview with the Minister’s Department in relation to his protection visa application on 9 September 2014 and participated with the assistance of an interpreter in the Farsi and English languages. At the interview, the applicant repeated his claims and also said that, since leaving Iran, his father and brother had been arrested in Iran and his brother was preparing to flee to Turkey to seek asylum.
On 7 November 2014, the delegate refused the applicant’s protection visa application.
The delegate found that the applicant’s testimony “appeared vague and lacked spontaneity” and was not “compelling”.[2]
[2] Court Book (CB) 102
Although accepting that the applicant had worked in a factory owned and managed by the Sepah and that he had been discharged due to his refusal to join the Basij, the delegate did not accept that the applicant had insulted the Basij and was beaten and detained, or that the Basij searched his home.[3]
[3] CB 103
The Tribunal review
On 26 November 2014, the applicant applied to the Tribunal for review of the delegate’s decision.
The court book includes an invitation to the applicant to attend a hearing on 31 March 2016, purportedly emailed to the applicant on 18 February 2016, which the applicant would later say he had not received.
The applicant did, however, confirm that he received an “SMS hearing reminder” on 30 March 2016 and, on 31 March 2016, appeared before the Tribunal and participated with the assistance, again, of an interpreter in the Farsi and English languages.
After making his standard introductory comments, the presiding member asked the applicant if there was something he wanted to say:[4]
[4] Transcript, page 3, line 13
Tribunal Member: … Now did you want to say anything to me before we get started into the hearing, into the hearing?
Interpreter: About what I have said previously, I only received a text message about today’s hearing only yesterday.
Tribunal Member: Mmm hmm. And then you did come in today, so thank you very much for that. But I also understand that, umm, you didn’t, even though you were advised to do so, you did not advise the Tribunal that you had, sorry even though the Tribunal’s letter asked you to advise it if you changed address, you failed to do that and you only advised the Department of Immigration. And in an effort to ensure that an applicant understands that there’s a hearing to be, that there’s a hearing scheduled, that’s one of the reasons we text, we text applicants to ensure that they know that a hearing’s been scheduled for them. Is there anything else you wish to say before we start the hearing?
Interpreter: Ah okay to tell…to tell you the truth, I was really at work and I came here today. I don’t really know what I should do. I’m not really fully prepared. I was going to get a lawyer because that’s a very important Tribunal for me.
Tribunal Member: Well I, I accept that, but but I’m not, when you say fully prepared, did you, do you recall the claims that you made to the Department and to the Tribunal? I mean these only relate to incidents that occurred within the last three or four years.
Interpreter: I do remember everything but I do not remember maybe exactly the dates.
Tribunal Member: That’s fine, that’s fine. If you remember everything however, I think if I prompt you throughout the course of the hearing, we may be able to proceed today and, and to hear your case.
Interpreter: No problem.
Tribunal Member: Okay, thank you very much …
The Tribunal then proceeded with the hearing, asking the applicant about his family in Iran, his departure through Imam Khomeini airport and the events he claimed to have taken place before he left.
However, through the course of the hearing, the applicant was asked about specific matters which he said he could not remember. The Tribunal put to him that his claim to have insulted the Supreme Leader was recorded in the delegate decision as having been made at the protection visa interview but was not mentioned in his statutory declaration. The applicant said in response he could not recall whether, at the time he prepared his statutory declaration, he had mentioned to his representatives that he had insulted the Supreme Leader and he had wanted to get a copy of the protection visa interview recording. The Tribunal also asked why he had not mentioned in his statutory declaration that he was released from detention on condition that he report to the authorities and the applicant responded that he could not recall whether this was mentioned.[5] The applicant was also asked about his brother’s arrest and departure to Turkey and he said he was unable to remember the dates.
[5] Transcript, pages 16 and 18
The hearing concluded with the Tribunal asking the applicant if there was anything else he wanted to say:[6]
Interpreter: Okay I just wanted to ask if it’s possible to give me another opportunity to come here and talk because as I said I just find out about…if it’s necessary. Because of the letters and timing.
Tribunal Member: Well umm, that, that was something that I had, that I was thinking about at the commencement of the hearing. But I decided to proceed with the hearing because firstly you agreed with me proceeding with the hearing and secondly because umm, your claims weren’t that complicated and these matters occurred within the last three or four years. These issues are also, there’s also significant issues in your life so, I was satisfied given that I had no evidence that you were traumatised or otherwise your memory is failing, I was satisfied that you should be able to recall. No unless something unforeseen happens whilst I’m drafting, you know based on any discussion we now have or whilst I’m drafting my decision, I will not be providing a further opportunity to come and speak to the Tribunal. So, what else did you…so why…I had no problems, you can tell me if you think I’m wrong, that is not a problem but if I think I’m wrong you need to tell me now.
Interpreter: No it’s not wrong, it’s correct. But what can I do, that’s what I have to do.
[6] Transcript, page 21, lines 14-32
On 6 April 2016, the Tribunal affirmed the delegate’s decision.
The Tribunal at [9] noted that the applicant had “said he wanted an adjournment of the hearing”; but that it had “said it would (words to the effect) prompt [him] as necessary, and ask him questions about the claims he had provided”; and that “the applicant eventually agreed to this proposal” and it was accordingly satisfied he had been given a reasonable opportunity to put evidence and submissions in support of his case.
The Tribunal did not accept the applicant had insulted the Supreme Leader because “if the applicant had insulted the Supreme leader … this would have been included in his statutory declaration”[7] and in light of its finding as to the applicant’s general credibility. The Tribunal at [16] also did not accept the applicant’s brother and father had been arrested and that he had been subject to reporting conditions upon release because “if these claims were true … they would have been expressed in his … statutory declaration”.
[7] at [12]
The Tribunal accepted that the Sepah and Basij could have been engaged with the business in Iran and that in about February 2013 the applicant and his work colleagues could have had a dispute with management over Basij membership. However, the Tribunal reasoned that if his claims were true he would have been subjected to greater harm than claimed, would have taken greater steps to find out what had happened to the other members of the group of employees, and would have taken greater steps to ensure he was not detained at the airport than he said he had taken. Based on the “accumulation of difficulties” with the applicant’s evidence, the Tribunal concluded that his claim to have been in a dispute with the Basij or Sepah was false and that, even if there had been a dispute, the dispute would have been resolved before he left Iran and the applicant would not have any criminal conviction or political profile that would attract adverse attention.[8]
[8] Tribunal’s reasons at [29]-[31]
The present proceedings
These proceedings began with a show cause application lodged on 27 June 2016. The applicant required an extension of time for that application, which I granted on 6 December 2017 under s.477(2) of the Migration Act 1958 (Cth) (Migration Act). The applicant now relies upon a further amended application, which I granted leave for him to file and rely upon at the trial of the matter on 16 April 2018. There are three grounds in that application:
1. The second respondent (Tribunal) failed to afford the applicant a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the review and thereby breached section 425 the Migration Act 1958 (Cth) (Act).
2. Further or in the alternative, the decision of the second respondent was affected by a reasonable apprehension of bias.
Particulars
a. The circumstances were such that a fair-minded and informed observer would reasonably apprehend that the Tribunal was so predisposed towards a rejection of the applicant's claims that it was not open to be persuaded otherwise, including as follows:
b. At the start of the Tribunal hearing, when the applicant said he had not had sufficient time to prepare, the Tribunal suggested that he was only going to be asked about the claims he made to the department and Tribunal relating to events in the preceding 3 or 4 years and said that it would “prompt” him so that the hearing could proceed.
c. The Tribunal did in fact “prompt” the [applicant] through the hearing such as to give rise to the inference that it was not receptive to what the applicant wanted to say.
d. At other points, the [applicant] was unable to recall whether certain matters had been mentioned to his solicitors or mentioned at his interviews with the department in the past.
e. At the close of the hearing, the applicant sought a further opportunity to appear before the Tribunal and that request was refused either because it did not consider an explanation of the above matters would make any difference or without any independent consideration of the request at all. The Tribunal said that it had already decided at the commencement of the hearing to proceed that day and no further opportunity would be provided.
3. Further or in the alternative to 1 and 2, the second respondent's exercise of discretion to refuse the applicant a further hearing was legally unreasonable.
Particulars
The exercise of the second respondent's discretion under section 427 of the Act in refusing the applicant's request was legally unreasonable.
The applicant repeats particulars b to e of ground 2 above.
In addition to the court book filed on 1 September 2016, I have before me as evidence the affidavit of Lecia Maree Stark made on 19 January 2018, to which is annexed a transcript of the Tribunal hearing conducted on 31 March 2016.
I also received as an exhibit[9] a thumb drive containing the sound recording of the Tribunal hearing, limited to questions asked and answers given at that hearing concerning the applicant’s adherence to his Shia Islam faith. I have listened to the sound recording, which is entirely consistent with the transcript and adds nothing to it.
[9] Exhibit A1
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions.
Consideration
Ground 1 – did the Tribunal breach s.425 of the Migration Act?
Applicant’s contentions
Subsection 425(1) of the Migration Act provides that:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
It is well established that the obligation to “invite” is not discharged merely by the Tribunal inviting an applicant to an oral hearing: the obligation to “invite” under s.425 of the Migration Act requires that the applicant be given a meaningful and fair opportunity to present arguments and give evidence on issues relevant to the review.[10] Failure to afford such an opportunity can constitute jurisdictional error.[11]
[10] See SAAP v Minister for Immigration (2005) 215 ALR 162; [2005] HCA 24 at [17] per Gleeson CJ; Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1; [2004] HCA 62 at [27] (CLR 8) per McHugh, Gummow, Callinan and Heydon JJ; Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11; at [14] per Gleeson CJ and [147] per Hayne J; and Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [60]-[61] per Hayne, Kiefel and Bell JJ
[11] SZBEL v Minister for Immigration [2006] HCA 63; Minister for Immigration v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [38] per the Court (Gray, Cooper and Selway JJ)
The obligation to “invite” under s.425 of the Migration Act includes a requirement that the Tribunal put the applicant on notice of issues arising in relation to the review. As the High Court stated in SZBEL vMinister for Immigration:[12]
… Ordinarily … the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[12] SZBEL op cit at [36]
Section 425 of the Migration Act also requires that the applicant not be misled by the Tribunal into not taking up the opportunity to properly present his case. An applicant may be denied a meaningful opportunity to present his case if statements made by the Tribunal, though not unequivocally untrue, are capable of creating the expectation or giving rise to a natural inference that they are misleading.[13]
[13] BBS15 v Minister for Immigration (2017) 248 FCR 159; [2017] FCAFC 61 at [75]-[76] per the Court (Griffiths, Kerr and Farrell JJ). See also Applicant VBAB of 2002 v Minister for Immigration (2002) 121 FCR 100; [2002] FCA 804
In the present case, the Tribunal’s comments at the beginning of the hearing are said to have given the impression that the applicant would only be asked about “the claims that [he] made to the Department and to the Tribunal” and “only relate to incidents that occurred within the last three or four years”. The Tribunal also said that, if the applicant had difficulty recalling the matters about which he was asked, the Tribunal would “prompt” him. It was on this basis that the applicant “agreed” and the Tribunal decided on that basis to proceed with the hearing on the day.
However, the applicant submits that the Tribunal proceeded to ask the applicant about matters, which cannot reasonably be considered to be limited to the “claims” he had previously made, and events in the preceding three or four years. The Tribunal asked the applicant about the control the Sepah had of the factory and the checks the Sepah would have undertaken in relation to the applicant before he started working at the factory in 2011.[14] The Tribunal referred to the delegate’s decision, which recorded the applicant as having said at the protection visa interview that he had insulted the Supreme Leader, that his father had been arrested, and that reporting conditions were placed on his release from detention, and asked him why he had not mentioned these matters in his statutory declaration. The applicant was unable to recall whether he had in fact mentioned these things to his representatives at the time he made the statutory declaration and said that he wanted to, but had been unable to, listen to the recording of his interview with the delegate.[15] The applicant was also asked about the dates of his brother’s subsequent travel to Turkey, which he said he did not exactly know,[16] and about country information relating to Iran.
[14] Transcript, pages 8-9
[15] Transcript, pages 16-18
[16] Transcript, page 19
The applicant submits that moreover, the Tribunal’s statement of reasons contains findings on factual matters that were never raised with the applicant at the hearing or the subject of findings by the delegate. One of the “cumulative difficulties” relied upon by the Tribunal in rejecting the applicant’s claims was that it was not plausible that he would have “been subject to far greater harm, if he was detained for the reasons he claimed” and that, whereas the applicant said he did not know how to contact the other workers involved in the dispute at the factory, it was not plausible “that his father would not have been able to find out what had happened to them”.[17] The applicant’s evidence on these matters was not challenged at the hearing. Another of the “cumulative difficulties” was that the Tribunal found that, even if there had been a dispute at the factory, “any dispute the applicant had with Basij/Sepah, was finally resolved prior to the applicant departing Iran” and therefore there was no “outstanding issue arising from the factory dispute”.[18] No mention is made in the Tribunal’s reasons or at the hearing as to how the dispute would have been resolved. The Tribunal also found that the applicant did not have “any political conviction” and it was not satisfied he “would wish to engage in any behaviour or activity in Iran that would bring him to the adverse attention of the authorities”.[19] These were also matters that were not raised with the applicant at the hearing.
[17] Tribunal’s reasons at [23] and [24] (CB 155), respectively
[18] Tribunal’s reasons at [30] (CB 157)
[19] Tribunal’s reasons at [31] (CB 157)
The applicant contends that he agreed to proceed with the hearing on a false premise and issues, material to the ultimate reasons of the Tribunal, were raised at the hearing to which the applicant was unable to meaningfully respond, or were not raised at all. In the circumstances, the applicant submits that he was accordingly denied a reasonable opportunity to present his case in breach of s.425 of the Migration Act.
Minister’s contentions
The Minister accepts that s.425 of the Migration Act requires that an applicant be given “a sufficient opportunity to give evidence, or make submissions, about…determinative issues arising in relation to the decision under review”.[20]
[20] SZBEL at [44]
The Minister contends, however, that the applicant here was afforded such an opportunity. He was invited to appear before the Tribunal by notice under s.425A(1), by letter dated 18 February 2016.[21] The notice was sent to the applicant via email.[22] This is a method specified in s.441A(5)(b) for the purposes of s.425A(2)(a). The applicant was thus taken to have received that document the same day.[23] Importantly, given the method by which the hearing invitation was dispatched, the applicant advising the Minister’s Department that he had changed his address but failing to advise the Tribunal was irrelevant because the email address had not changed.[24]
[21] CB 129-137
[22] CB 129
[23] Section 441C(5)
[24] Tribunal’s reasons at [9] (CB 151) and CB 110
The applicant in any event received a text message the day before the hearing,[25] and attended the hearing. Though the applicant stated to the member at the commencement of the proceeding that he was “not fully prepared”, the following exchange occurred:[26]
[25] CB 138
[26] Transcript, pages 3-4
Tribunal Member: …when you say fully prepared, did you, do you recall the claims that you made to the Department and to the Tribunal? I mean these only relate to incidents that occurred within the last three or four years.
Interpreter I do remember everything but I do not remember maybe exactly the dates.
Tribunal Member: That’s fine, that’s fine. If you remember everything however, I think if I prompt you throughout the course of the hearing, we may be able to proceed today and, and to hear your case.
Interpreter: No problem.
The Minister submits that, although the Tribunal’s decision[27] records this as the applicant “eventually” agreeing to the proposal, the above exchange evidences that in fact the applicant was quite readily agreeable. Similarly, though the Tribunal’s decision records that the “Tribunal then said it would (words to the effect) prompt the applicant as necessary, and ask him questions about the claims he had provided”,[28] this again is to omit the context in which that exchange occurred. The applicant had stated to the Tribunal that he remembered “everything” except maybe exact dates. The Tribunal member then said in response to that, “if you remember everything” then he could prompt the applicant. In circumstances where the applicant volunteered that he remembered everything and where the Tribunal expressly noted that, the Tribunal’s comments regarding any prompting should be seen as directed only to the matter of dates. That the applicant proceeded on that basis, that is, that he was able to recall everything other than dates, is reiterated by the final exchange he had with the Tribunal:[29]
Interpreter: …I just want to ask you please to accept what I have said. Whatever I said has really happened, I didn’t lie at all. Regarding the dates, I may have made mistakes regarding the dates, but I would really ask you to give me the opportunity to live in this country.
[27] Tribunal’s reasons at [9] (CB 151)
[28] at [9]
[29] Transcript, page 22
The Minister submits that there is no question that the Tribunal was clearly aware of its obligations under s.425.[30] The applicant is said to have been afforded a fair hearing, and accepted as much.[31]
[30] Tribunal’s reasons at [8]-[10] (CB 150-151)
[31] Transcript, page 21 (“No it’s not wrong, it’s correct.”)
The applicant alleges three further aspects to an error under s.425.
The first is that the applicant asserts that misleading statements made by the Tribunal created an expectation (amounting to a denial of procedural fairness).[32] The Minister contends that nowhere, as the applicant asserts, did the Tribunal give the impression that the applicant would “only be asked” about his claims as made to the Minister’s Department and the Tribunal and only relating to incidents that occurred within the last three or four years.[33] When the transcript exchange is read as a whole, it is said to be clear that the Tribunal’s concern was with ensuring that the applicant could properly present evidence going to the crux of the hearing, being the claims on which he claimed protection, which occurred primarily in the three or four years before the Tribunal hearing. The Minister contends that the Tribunal could not fairly be understood to have made any representation that it would not test the veracity of the applicant’s claims, for example by putting to him inconsistencies in his evidence, or relevant country information.
[32] applicant’s submissions at [34]
[33] cf applicant’s submissions at [35]
The applicant then appears to be alleging a denial of procedural fairness in requesting, but being unable to listen to, his recording of the interview with the delegate. The Tribunal’s concern, however, as the applicant himself notes,[34] was that the applicant had not raised matters in his statutory declaration. There is said to be no suggestion as to how being unable to listen to the recording of the interview with the delegate would have impacted on the Tribunal’s concern with the absence of information from the statutory declaration submitted with the protection visa application.[35]
[34] applicant’s submissions at [36]
[35] found at CB 71-74; see eg relevant finding at Tribunal’s reasons at [12] (CB 152) and at [16] (CB 153)
As stated by Mortimer J in BVW17 v Minister for Immigration:[36]
Procedural fairness…must always focus on the realities of how a litigant was treated and what opportunity, in a practical sense, has been lost or what effects, in a practical sense, have been visited upon a litigant.
[36] [2017] FCA 1508 at [35]
To put it simply, as per Gleeson CJ in Re Minister for Immigration; Ex parte Lam:[37]
[37] (2003) 214 CLR 1 at [37]
…the concern of the law is to avoid practical injustice.
Finally, under this ground, the applicant asserts that the Tribunal’s decision was based on issues not raised with the applicant at the hearing.[38]
[38] applicant’s submissions at [37]
In addition to what has already been set out above, the Minister notes a few further matters. First, it is said not to be necessary for the Tribunal to “put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events”.[39] Secondly, consideration of the delegate’s findings and decision are crucial in determining whether the applicant was on notice of an issue.[40] Thirdly, the Tribunal is not required to expose all of its thought processes or evaluations.[41]
[39] SZBEL at [47]
[40] SZBEL at [47]
[41] see eg SZHKA v Minister for Immigration (2008) 172 FCR 1; [2008] FCAFC 138 at [7]
With those principles in mind, the Minister submits that it can be seen that none of the matters raised by the applicant give rise to any jurisdictional error on the part of the Tribunal. In particular:
a)the Tribunal’s finding that it was not plausible that the applicant “would not have been subject to far greater harm, if he was detained for the reasons he claimed” was raised directly with him at the hearing where the Tribunal stated “the Basij are capable of extreme brutality in, in Iran. I’m wondering why they would then have released you after one week … you said you were mistreated in detention but you haven’t claimed you have received any medication attention after your release”.[42] In any event, the applicant was sufficiently on notice through the delegate’s decision that it was not believed that he was beaten and detained for a week;[43]
b)the finding that it was not plausible that “his father would not have been able to find out what had happened to [the other persons detained with him]” is directly answered by the Tribunal stating, “I understand what you’ve said but it may not appear to be plausible”;[44]
c)the Tribunal’s finding at [30][45] that “any dispute the applicant had with Basij/Sepah, was finally resolved prior to the applicant departing Iran … I am not satisfied there is any outstanding issue arising from the factory dispute” was based on the Tribunal’s findings earlier that the applicant had arranged a passport without a problem, that he left via plane, and that he was not detained at the airport.[46] As is evident from those paragraphs, these are matters that were discussed with the applicant at the hearing; and
d)the Tribunal’s finding at [31][47] that the applicant did not have any political conviction was raised with the applicant, as the Tribunal itself noted at [31]. The applicant confirmed before the Tribunal that he did not have any “political activities”.[48]
[42] Transcript, page 12
[43] CB 103
[44] Transcript, page 11
[45] CB 157
[46] Tribunal’s reasons at [26]-[27] (CB 156)
[47] CB 157
[48] Transcript, page 20
The Minister contends that the applicant attended the hearing, and as the transcript and the decision record evidences, the Tribunal provided the applicant with a meaningful hearing in which the applicant was able to give evidence, and provide submissions, on his claims in relation to which he himself stated that he “remembered everything”, except, as he reiterated at the end, dates. The applicant agreed to the procedure put forward by the Tribunal.[49] The Minister submits that the applicant should not now be entitled to complain about that (fair) procedure, after having received the adverse outcome; as noted by Flick J in CKA15 v Minister for Immigration[50] in relation to a complaint about the procedure followed by the Tribunal.[51]
[49] Transcript, pages 3-4 at line 21
[50] [2017] FCA 1327 at [55]
[51] at [37]
Belated objections raised to procedural decisions taken by an administrative decision-maker have the potential to only foster the prospect of claimants taking such benefit as may follow from the course proposed but reserving unto themselves the ability to later voice objection if the course turns out to be prejudicial to their interests.
Resolution
The asserted breach of s.425 of the Migration Act in this case centres upon the applicant’s stated unpreparedness for the Tribunal hearing (made clear at that hearing) and the measures taken by the Tribunal to deal with that unpreparedness.
At the outset, it is plain that the applicant was properly notified of the Tribunal hearing. The hearing invitation was sent to the email address given by the applicant in his review application.[52] The applicant raised at the Tribunal hearing his change of address, but that was a change of residential address, not the email address.
[52] See CB 110 and CB 129
Nevertheless, the applicant claimed not to have received the hearing invitation sent to his email address, although he admitted receiving the SMS reminder of the hearing, sent to the applicant the day before the hearing. It was in this context that the applicant claimed to be unprepared.
The Tribunal accepted[53] that the applicant was unprepared for the hearing but sought to deal with that by noting that the facts of concern to the Tribunal were events that occurred within the last three or four years and by undertaking to prompt the applicant in relation to matters of detail. Further, the Tribunal did not proceed, from the outset, in the unequivocal belief that the hearing opportunity afforded the applicant would be a fair one. The Tribunal stated:[54]
We may be able to proceed today and, to hear your case.
(emphasis added)
[53] Transcript, page 3 at line 32
[54] Transcript, page 4 at lines 6-7
It was on that basis that the applicant agreed to proceed with the hearing. In other words, the applicant’s agreement was contingent upon an assessment of how the hearing progressed, in relation to the fairness of it.
The Tribunal was diligent, during the hearing, in prompting the applicant in relation to matters of detail concerning his claims, and pointing out to the applicant those aspects that the Tribunal had difficulty with. All of this supports an assessment of a fair hearing opportunity. There was an issue in relation to the applicant’s religion, which was peripheral to the applicant’s main claim, to which I will return in relation to Ground 2.
One issue of real concern to the Tribunal was its belief that critical elements of the applicant’s claims were not mentioned in the applicant’s initial written claims for protection but were raised for the first time in the applicant’s interview with the delegate. The applicant draws attention to the fact that he had raised with the Tribunal at the hearing that he had asked for the sound recording of his prior interviews but had not received them.[55] The Minister responds that whether or not the applicant had received access to the sound recording, the Tribunal was relying on the delegate’s record of what the applicant said at the interview and the issue was whether or not the claims in issue had been set out in the applicant’s written claims for protection.
[55] Transcript, page 16, lines 22-24
In my opinion, the issue is not as simple as that. The Tribunal, in a lengthy passage commencing on page 16, line 25 of the transcript and concluding on page 17, line 13 of the transcript, examined three documents handed up by the applicant. It appears that at least one of those was a request for the sound recording of earlier interviews. The presiding member noted that one of them was dated 5 June 2015 and the bundle also included a response dated 26 June 2015, which stated, in essence, that the request was denied because the applicant had not at that stage lodged a protection visa application. From that, it is tolerably clear that the applicant and the Tribunal were at cross purposes. The applicant was not complaining about a lack of access to the sound recording of his interview with the delegate, but, rather, to his being denied access to the sound recording of his initial arrival interview. The applicant was contesting the Tribunal’s supposition that the interview with the delegate was the first time that the applicant had raised the claims in issue. In my view, what the applicant was attempting to tell the Tribunal was that he thought that he might have mentioned some of these claims at his initial arrival interview. This was not explored further with the applicant either at the Tribunal hearing or otherwise.
Towards the end of the hearing, the presiding member asked the applicant whether there was anything that had not been discussed that the applicant wished to raise.[56] The applicant answered in the negative. The Tribunal member then offered the applicant a few minutes to reflect on what had transpired during the hearing to see if there was anything he wished to discuss further.[57] In response, the applicant asked for a further hearing opportunity, because of his lack of preparedness.
[56] Transcript, page 20, lines 25-30
[57] Transcript, page 21 at lines 11-13
The Tribunal declined to offer a second hearing on the basis that, with the benefit of the experience of the hearing, the presiding member was satisfied that the hearing opportunity was a fair one. In other words, the contingency on the conduct of the hearing specified by the presiding member at the outset of the hearing had been, in his view, met.
In my view, the Tribunal viewed the matter too narrowly. The Tribunal took the view that the hearing had proceeded satisfactorily and that the only reason to invite further input from the applicant would be if something occurred to the Tribunal in the course of preparing its reasons on which the applicant’s comment was required. This would have been an unimpeachable position if this were a case where the applicant had received adequate notice of the hearing, had prepared for it and if the applicant had been assisted by a representative. In the present case, the applicant had arrived at the Tribunal hearing unprepared, having only found out about the hearing the day before. The applicant should have known that his credibility was in issue, having received the delegate’s decision, and the applicant was put on notice of some particular issues of concern during the hearing by the Tribunal. However, as the applicant had pointed out, he had not had the opportunity to review the sound recording of either of his two previous interviews and, so, he was not in a position to contest the adverse credibility findings made by the delegate.
In these circumstances, in order for the applicant to be afforded a fair hearing opportunity, he needed to have clearly explained to him the issues that the Tribunal considered likely to be dispositive of the review. To the extent that this could not be done at the hearing, it needed to be done either by letter or at a resumed hearing. While some issues of concern were addressed by the Tribunal at the hearing, there was no summation of those issues at the end of the hearing. It was insufficient in the circumstances of this Tribunal hearing for the Tribunal to give a final invitation to comment at the end of the hearing following a series of apparently unconnected questions and answers about factual matters. The applicant properly accepted[58] that the Tribunal had not said anything wrong to that point, but it was plain that the applicant was at a loss to know what he needed to do to persuade the Tribunal of his claims for protection. What the Tribunal needed to do was to explain to him what it saw as the dispositive issues and to invite his comment on them. That is what the Tribunal failed to do.
[58] T, page 21, line 31
I find that, because of the applicant’s unpreparedness for the Tribunal hearing, and his inability to access the sound recordings of the two prior interviews and because the Tribunal in these circumstances failed to summarise for the applicant the issues it considered likely to be dispositive of the review and invite his comment, the hearing opportunity in this case was not a fair one, with a result of a breach of s.425 of the Migration Act occurred. Ground 1 has been established.
Ground 2 – a reasonable apprehension of bias?
Applicant’s contentions
In NADH of 2001 v Minister for Immigration,[59] Allsop J, as his Honour then was, stated:[60]
The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision.
[59] (2004) 214 ALR 264; [2004] FCAFC 328
[60] at [14] per Allsop J, as his Honour then was (Moore and Tamberlin JJ agreeing), referring to Webb v R [1994] HCA 30; (1994) 181 CLR 41, 70-71; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 90-92; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 343-45; and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, 434-35 at [27]-[32]
His Honour continued:[61]
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.
[61] NADH of 2001 op cit at [20]
The Full Court of the Federal Court noted in Sharma v Minister for Immigration[62] that the Tribunal only embarks upon a hearing if it is unable to decide the review on the papers and that context underscores the distinction between the formation of a concluded view, on the one hand, and a preliminary reaction or inclination for or against an argument or conclusion, on the other. The Full Court continued:[63]
… [T]he Tribunal, in the performance of its … statutory task of review under the Act is not precluded from testing the applicant’s case by posing questions which challenge the version of facts put forward by the applicant. That questioning may be robust and even confrontational. The reasonable bystander must also be taken to know that the Tribunal is entitled to express doubts about the answers given by the applicant in order to provide the applicant with the opportunity to supply further explanations. Robust questioning or the expression of doubt designed to allow the applicant to respond do not necessarily raise an apprehension of bias because they do not necessarily demonstrate that the decision maker is determined in a view against the applicant. That said, the nature and extent of questioning and the expression of doubt may amount to a level that gives rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude.
[62] [2017] FCAFC 227 at [23]-[24] per the Court (North, Logan and Charlesworth JJ)
[63] at [24]
First, the applicant contends that it may be observed that the Tribunal’s offer, in the present case, to “prompt” the applicant when he was giving evidence, so that they “may be able to proceed today … and … hear [his] case” in itself suggests a level of pre-judgement. The offer to “prompt” the applicant is said to weigh in favour of the inference that the Tribunal had made assumptions about what the applicant’s oral testimony would be and was not proposing to receive his evidence in a fair and open-minded manner. It is one thing to test the applicant’s evidence and another to offer to in part give the evidence for him.
Secondly, as the hearing proceeded, the Tribunal did in fact “prompt” the applicant. In relation to the Basij visit to the applicant’s factory, the following was said:[64]
[64] Transcript, page 10, line 18 to page 11, line 18
Interpreter: We didn’t have a fight, we just complained and we said that we can not join a group that we do not agree with and we cannot be forced to do so.
Tribunal Member: But you did have a fight though, didn’t you? Because when the Basij tried to detain you, people started to resist and that’s when the fighting started. And then, then the Basij arrested all seven or eight of you and took all of you away, is that correct?
Interpreter: Yes
Tribunal Member: Okay. I understand what you’ve said. Now you were all detained for around one week and mistreated. And then you were released after you, or had all signed a note that you would not umm, not again refuse to do as you are asked.
Interpreter: Yes
Tribunal Member: Now after that, [clears throat] do you, do you still keep in contact with anybody from your business in, in Isfahan?
Interpreter: No
Tribunal Member: So you don’t know what happened to the other people who were arrested?
Interpreter: No
Tribunal Member: Why not?
Interpreter: When I came here I didn’t have any contact number from anybody.
Tribunal Member: I’m not sure, I’m not sure why, I mean I thought if you were arrested with seven or eight people you might be interested to know what happened to the others.
Interpreter: Yes that’s correct. To tell you the truth I would like to get in touch with them but there is no way that I can have their number, I do not have their number here and I asked my father to get their number for me but he wasn’t able to.
Tribunal Member: Alright, just, alright. I understand what you’ve said but it may not appear to be plausible. You father was not able to identify what had happened to the other people who you were arrested with in February 2013. Given, given some of them were in the same predicament as yourself, I may have thought you would have been interested to know, you know, if they had, if they were still subject to harm in, in Iran.
Thirdly, as the above passage demonstrates, having prompted the applicant’s evidence, the Tribunal is said to have almost immediately formed a judgement, in this instance as to the plausibility of the evidence without taking time to explore the applicant’s answers. It is also said to be relevant in this regard that the Tribunal ultimately found that the applicant’s father would have been able to find out what happened to the other workers, yet this was never raised at the hearing.[65] Circumstances, like the present, where the applicant was unrepresented and showed signs of not understanding all that he was being asked, called for particular attention to be given by the Tribunal to the need to draw out from the applicant what he was seeking to say. The Tribunal did not do so, creating the impression that it was not interested in hearing what the applicant wanted to say, but rather was intent on determining the matter against the applicant in any circumstances.[66]
[65] Tribunal’s reasons at [24] (CB 155)
[66] Sharma op cit at [56], [58]. See also Transcript at pages 9-10, where the applicant says the factory was originally privately owned and the Tribunal immediately responds that it might not accept that to have been so and that the Sepah had in fact been in control of the factory “for some time”.
Fourthly, and moreover, the applicant submits that the “prompting” became overbearing, such as to give rise to the inference that nothing the applicant said would change the Tribunal’s view. On the issue of religion, the applicant claims that he clearly said that he no longer considered himself to be a Shia Muslim:[67]
[67] Transcript, pages 13-14
Tribunal Member: Okay well let’s talk about that claim, not to have any religion. … [W]hat I understand you’re now saying is, you’re still a Shia Muslim but you just do not perform your Shia Muslim activities in Iran, is that correct? Just yes or no, I want a yes or no for that one. I’m sorry, just yes or no.
Applicant:Okay sorry. No
Tribunal Member: So it’s not correct. Okay no that’s fine. I don’t mind you saying it’s not correct.
Interpreter: Sorry can you repeat the question please.
Tribunal Member: Oh, my apologies. You’re still a Shia Muslim?
Interpreter: No I’m not.
However, the applicant asserts that the Tribunal continued to “prompt” him into conceding that he considered himself to be a non-practising Shia:[68]
[68] Transcript, page 14
Tribunal Member: Yes, you’re still a Shia Muslim, you simply do not practice Shia Muslim.
Applicant: No
Tribunal Member: No no, tell me, am I correct? Is that, am I correct, yes or no?
Applicant:Yeah
Tribunal Member: Okay, so you agree, you just agreed with me that you’re a Shia Muslim but you do not practice your faith. Is that correct?
Applicant:Yeah
Tribunal Member: Okay so you’re not saying you don’t believe in god. Is that correct?
Interpreter: Correct
Finally, the applicant contends that the Tribunal’s predisposition towards rejecting the applicant’s claims, irrespective of what the evidence might be, may be inferred from the Tribunal’s attitude to the evidence the applicant had not been able to access. The applicant said at the hearing that he had wanted to listen to the recording of his interview with the delegate and had unsuccessfully requested the recording three times. The Tribunal acknowledged that its understanding of what was said at the interview was based upon the delegate’s decision.[69] The recording of the interview with the delegate would have been evidence relevant to whether or not the applicant’s claims regarding insulting the Supreme Leader, his father’s arrest and the reporting conditions had been in fact been first raised at that interview. However, the Tribunal does not refer to the audio recording in its reasons and appears to have made its decision without listening to it. Moreover, in circumstances where the applicant said that he had difficulty recalling other matters and said that he wanted an opportunity to give further evidence, it may be inferred in the absence of any reasonable justification that the Tribunal refused the applicant’s request for an adjournment because it had made up its mind and no further evidence would dissuade it from the conclusion it had reached.
[69] Transcript, page 16
Minister’s contentions
As the applicant notes, questioning by the Tribunal “may be robust and even confrontational”.[70] Similarly, as noted in Minister for Immigration v WAFJ:[71]
[t]hat the Tribunal conducted the hearing on a question and answer basis directed to issues of concern to the Tribunal member [does] not deprive the process of procedural fairness.
[70] applicant’s submissions at [41] citing Sharma at [23]-[24]
[71] (2004) 137 FCR 30 at [68] (per French J, as he then was, dissenting as to the result)
The applicant, in claiming apprehended bias on the part of the Tribunal, first complains that the Tribunal’s reference to “prompt[ing]” the applicant suggests a level of pre-judgement. The Minister refers above to the discussion as to the context in which that statement was made; that is, in response to the applicant’s concern that he might not remember exact dates. There was no “offer” by the Tribunal to give the applicant’s evidence for him.[72] As the transcript records, there was simply a fair and mutual exchange between the applicant and the Tribunal as to claims raised by the applicant and matters which the Tribunal wanted to test.
[72] cf applicant’s submissions at [42]
Apparently by reference to the Full Court’s judgment in Sharma, the applicant then extracts in particular two exchanges between the Tribunal and the applicant.[73]
[73] applicant’s submissions at [43], and then again at [45]-[46]
In relation to the first of those exchanges, the Minister submits that the exchange simply records the Tribunal putting to the applicant aspects of his claims, with which the applicant agreed; the Tribunal testing the applicant’s evidence (eg “Why not?”); and then the Tribunal putting the applicant on notice that it might not necessarily believe his evidence. This is said to be a textbook example of how a hearing should proceed.
The applicant claims pre-judgement by the Tribunal’s comments, particularly its comment that it might not find the applicant’s evidence plausible, while at the same time complaining that certain issues, including plausibility of the applicant’s evidence, were not put to the applicant. The Minister notes that the Tribunal necessarily has to form some level of judgement if it is going to put matters as issues to an applicant in compliance with s.425 and SZBEL, whether at or after the hearing.[74]
[74] See also, eg Sharma at [23] (“that is not to say that a decision maker must be free of a preliminary reaction or an inclination for or against an argument or conclusion”)
In relation to the second exchange set out, the Tribunal is said to have been simply clarifying the evidence of the applicant as regards his religion. In any event, there can be no reasonable apprehension of bias on the part of the Tribunal generally, on the basis of this specific exchange, when the purpose of the Tribunal’s questioning appeared to be to allow it to diligently ensure, despite not being raised as a claimed fear, that the applicant would not have a real chance of suffering serious harm on the basis of religious beliefs.[75]
[75] see Tribunal’s reasons at [38]-[40] (CB 158)
Finally, the Minister submits that the recording of the interview with the delegate was irrelevant evidence when the Tribunal’s concern was the absence of material from the applicant’s statutory declaration, as discussed above. Further, contrary to the applicant’s submissions, there was no express request made by the applicant for further time to obtain and listen to the delegate's interview, and the applicant only said that he had made requests for the information from the Minister’s Department.
Resolution
I am not persuaded by the applicant’s contentions and, subject to the following observations, I accept the Minister’s submissions on this ground. First, the transcript suggests, and the sound file of the Tribunal hearing confirms, that the testing of the applicant’s claims at the hearing was entirely proper. The presiding member’s tone was moderate and not suggestive of any pre-judgement.
Secondly, the issue of the applicant’s religion, upon which the applicant relies for the purposes of this ground, is mischaracterised by the applicant in his submissions. This was not a case of the Tribunal seeking to “shoe horn” the applicant into a particular position for the Tribunal’s purposes. Rather, it was a case of the Tribunal seeking to resolve a conflict or inconsistency between the applicant’s written and oral statements. This is clear from the transcript where the Tribunal member stated:[76]
Okay well let’s talk about that claim, not to have any religion. The country information that I have seen indicates that umm, amongst other things, Iran has the lowest rate of mosque attendance in the Islamic world. Now the mere fact that somebody does not perform Shia Islam rituals doesn't mean that, you know, the country information that I have seen indicates that they do not get into trouble merely because they do not, for instance perform Shia Islam rituals. I'm just looking at folio fifty-seven (57) of the Department file where you said that your, your religion is Shia, a Shia Muslim. So I'm, what I understand you're now saying is, you're still a Shia Muslim but you just do not perform your Shia Muslim activities in Iran, is that correct? Just yes or no, I want a yes or no for that one. I'm sorry, just yes or no.
[76] Transcript, pages 13, line 33 to page 14, line 5
The Tribunal was simply seeking to reconcile two apparently inconsistent statements: the first being that the applicant claimed to be a Shia Muslim in his protection visa application but later stated that he had no religion. The applicant ultimately agreed with the Tribunal’s hypothesised resolution of that conflict in the terms that the applicant was a non observant Shia Muslim.
Both in this instance and, more generally, the Tribunal’s prompting of the applicant was not indicative of any pre-judgement on the part of the Tribunal but was a fulfilment of the Tribunal’s undertaking to prompt the applicant where necessary in order to explore his claims.
I reject this ground.
Ground 3 – an unreasonable refusal of an adjournment?
Applicant’s contentions
Section 427 of the Migration Act is headed “Powers of the Tribunal etc.” and provides, relevantly:
(1) For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time; …
By his third ground of judicial review, the applicant alleges that the exercise of the Tribunal’s discretion to reject the applicant’s request for a further hearing was legally unreasonable.[77]
[77] Transcript at page 21
In Li,[78] the High Court held that the refusal of the Migration Review Tribunal (MRT) to adjourn proceedings to allow a visa applicant to obtain evidence was not legally reasonable and constituted a jurisdictional error. That case concerned an application for a skilled visa, a criterion for the grant of which was a favourable skills assessment from Trades Recognition Australia. The visa applicant in Li, after obtaining a second unfavourable skills assessment, applied for internal review of the skills assessment and an adjournment from the MRT pending the outcome of the internal review. The MRT refused the adjournment, stating that the visa applicant had “been provided with enough opportunities to present her case”. The plurality held that there is a presumption that the legislature intends a discretionary power to be exercised reasonably;[79] that the legal standard of reasonableness went beyond what might be considered Wednesbury unreasonableness;[80] that there are many paths which may lead to a final conclusion that a statutory discretion has been exercised unreasonably;[81] and that, even where some reasons have been provided, unreasonableness is a conclusion which may be applied to a decision which “lacks an evident and intelligible justification”.[82] The plurality concluded that it was not apparent how the MRT’s conclusion had been reached, having regard to the facts and the statutory purpose to which the discretion is directed (namely that of providing an opportunity to present evidence and arguments pursuant to s.360 of the Migration Act), and that, though it was not possible to say which error the MRT had made, the result itself bespoke error.[83]
[78] Li op cit at footnote 10
[79] at [63]
[80] at [68]
[81] at [72]
[82] at [76]
[83] at [82]-[85]
In Minister for Immigration v Singh,[84] the Full Court of the Federal Court applied Li in the context of a decision of the MRT not to adjourn proceedings to allow the visa applicant to obtain a remark of part of an International English Language Test System test. The Court (Allsop CJ, Robertson and Mortimer JJ) rejected the Minister’s submission that the correct approach was to engage in a comparison between the facts in Li and those in the case before it:[85]
It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.
[84] (2014) 139 ALD 50; [2014] FCAFC 1
[85] Singh at [42]
The MRT in Singh gave no reasons, at the time, for refusing the adjournment; however, in its reasons for decision, it stated that it had previously told the visa applicant at the hearing “it would not agree to wait for further evidence after that date, as he had made his visa application over 2 years before and he has had many opportunities to sit several English language tests”. The Full Court inferred that, at the time of refusing the adjournment, the MRT was implementing what it had said at the hearing and did so without any independent, active consideration to the request;[86] and concluded that there was no objective or intelligible justification given for refusing the adjournment.[87]
[86] at [65]
[87] at [75]
In the present case, at the close of the hearing the applicant asked for “another opportunity to come here and talk … because of the letters and the timing” and the Tribunal refused, noting that the applicant had “agreed” to proceed with the hearing and also that his “claims weren’t that complicated and these matters occurred within the last three or four years”.[88] In substance, the applicant had requested an adjournment, which was denied.
[88] see above at [20]
The applicant contends that, like Li and Singh, the present was a case where the Tribunal’s response was only to say that the applicant had had his opportunity and no further opportunity would be given. There was no independent and objective consideration of the request in light of the matters, discussed above, that had transpired during the course of the hearing and no “evident and intelligible justification” for the request being refused. The applicant submits that the decision to refuse the request was legally unreasonable.
Minister’s contentions
The Tribunal offered the applicant the opportunity at the end of the hearing of “some time to think about if there’s anything else you wish to tell me”[89] which the applicant did not avail himself of. The Minister submits that the Tribunal was right to note that the applicant had “agreed” to proceed with the hearing[90] and that there was no evidence before it as to the applicant’s memory failing or that he was traumatised.[91] Moreover, the Tribunal clearly indicated that it was open to a further hearing if, in the drafting of reasons, something unforeseen was to happen, and the applicant accepted what the Tribunal said and did not press for any adjournment.
[89] Transcript, page 21
[90] cf applicant’s submissions at [53]
[91] Transcript, page 21
This discourse is said thus entirely to evidence an “intelligible and evident justification” for the Tribunal proceeding to make a decision on the review.[92]
[92] cf applicant’s submissions at [54]; Li at [76]
As Gageler J noted in Li, the approach to unreasonableness remains a stringent one.[93]The Tribunal’s decision to not conduct a further hearing was plainly a decision, in direct contrast to the facts of Li, which fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[94]
[93] at [105]-[113]
[94] Li at [105] per Gageler J
Resolution
The final ground alleges an unreasonable refusal of an adjournment under s.427(1)(b) of the Migration Act by virtue of the “applicant’s request for a further hearing”.[95]
[95] applicant’s submissions at [49]
It is not strictly necessary to address this claim, in view of my finding above that a breach of s.425 occurred. Nevertheless, I do not accept that it was unreasonable, in the context of this case, for the Tribunal to refuse a further hearing. The Tribunal reasoned that a further hearing was unnecessary because the hearing conducted by the Tribunal had proceeded to its satisfaction and it left open the possibility that it may need to raise something further with the applicant in the course of preparing its reasons. This was a rational, though flawed, analysis by the Tribunal. Secondly, procedural fairness in this case did not necessarily call for a further hearing. Hypothetically, the Tribunal could have set out clearly for the applicant, at the end of the hearing it conducted, the issues that the Tribunal considered likely to be dispositive of the review. It was apparent, however, that the Tribunal did not consider itself in a position to do that.[96] While the Tribunal kept open the possibility of raising something further with the applicant in the course of preparing its reasons, this did not occur. Procedural fairness would have been met if the Tribunal had written to the applicant setting out the issues that the Tribunal considered likely to be dispositive, following the hearing, and inviting the applicant to comment or make submissions. Procedural fairness did not necessarily require a further oral hearing.
[96] Transcript, page 22, lines 4-10
It follows, in my view, that the Tribunal’s refusal of a further oral hearing was not legally unreasonable.
Conclusion
I find that ground 1 of the application has been established. The applicant should receive the relief he seeks. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 May 2018
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