BRGAQ of 2008 v Minister for Immigration
[2009] FMCA 782
•14 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAQ OF 2008 v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 782 |
| MIGRATION – Refugee Review Tribunal – jurisdictional error – failure to consider an integer of the applicant’s claims. MIGRATION – Refugee Review Tribunal – asserted deficiencies in translation at Tribunal hearing – whether sufficient to constitute jurisdictional error. |
| Migration Act 1958 (Cth), ss.5, 422B, 424A, 425 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v The State of South Australia (1995) 184CLR163 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 77 ALD 541 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 NABE v MIMIA (2004) 144 FCR 1 Chan v MIMIA (2000) 106 FCR 157 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 WAFP v MIMA [2003] FCAFC 319 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 SZBELv MIMIA [2006] HCA 63 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 NBMB v Minister for Immigration & Citizenship [2008] FCA 149 SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 at [29] VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 |
| Applicant: | BRGAQ OF 2008 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 689 of 2008 |
| Judgment of: | Wilson FM |
| Hearing dates: | 30 January & 20 March 2009 |
| Date of Last Submission: | 25 May 2009 |
| Delivered at: | Brisbane |
| Orders Delivered on: | 14 August 2009 |
| Reasons Delivered on: | 19 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Dr Azzi |
| Solicitors for the Applicant: | N/A |
| Counsel for the first Respondent: | Ms Wheatley |
| Solicitors for the first Respondent: | Clayton Utz |
| Counsel for the second Respondent: | Ms Wheatley |
| Solicitors for the second Respondent: | Clayton Utz |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 15 September 2008.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the application before it according to law.
Any submissions on behalf of the applicant as to costs be filed and served on or before 28 August 2009.
Any submissions on behalf of the first respondent as to costs be filed and served on or before 4 September 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 689 of 2008
| BRGAQ OF 2008 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, a citizen of Nepal, arrived in Australia on 8 November 2007, on a tourist visa. On 7 February 2008 the applicant applied for a Protection (Class XA) visa, on the basis that he was a refugee. The application was declined by the Minister’s delegate on 29 February 2008. An application for review to the second respondent was unsuccessful. The Tribunal member affirmed the delegate’s decision on 15 September 2008. The applicant seeks to judicially review the Tribunal’s decision. As usually occurs, the Tribunal abides the order of the Court. The application was opposed by the first respondent.
A critical requirement to be satisfied on a successful application for a protection visa is that the applicant be a non-citizen of Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicant is a non-citizen, as that term is defined in s.5(1) of the Migration Act1958 (“the Act”). Reference to the Refugees Convention is to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. This was amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, referred to as the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a “refugee” as:
“any person who . . . owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”
The applicant was, until 31 October 2007 a serving police officer in Nepal. He had joined the police service in 1986 and had risen through the ranks to become a police inspector. The applicant had served in the United Nations Protection Force in the former Yugoslavia, for which he had received a commendation. The Tribunal member accepted (Reasons [55]) that the applicant experienced an ‘eventful and commendable career’ in the Nepalese police force. However, the Tribunal member did not accept that the applicant had the requisite fear of persecution, because she was not satisfied that the applicant was a truthful or credible person. The claim to a protection visa was therefore decided substantively on an adverse credibility finding against the applicant.
The applicant recognises that the Tribunal’s decision was a “privative clause decision” and, as a result, it can only be set aside on judicial review if jurisdictional error is shown: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-8, 511.
A general description of what constitutes jurisdictional error is to be found in the judgment of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184CLR163 at 179:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In the initiating application, filed by the applicant himself, the asserted grounds of jurisdictional error were that the Tribunal:
a)failed to comply with s.424A of the Act;
b)failed to comply with s.425 of the Act in relation to the issues arising in relation to the decision under review;
c)failed to give any weight to documentary evidence in support of the applicant’s claims by reason only of “credibility problems” with aspects of the applicant’s evidence;
d)dismissed evidence of threats to the family members because those family members had not been harmed.
No particulars were given of the grounds. By the time the matter was first listed for hearing (on 30 January 2009) the applicant, by then represented by experienced counsel, had re-formulated the grounds of the application as follows:
(1)The Tribunal committed jurisdictional error by not affording the applicant an opportunity to participate in the hearing in a meaningful way, as contemplated in section 425 of the Migration Act, by providing a competent interpreter to provide a reasonably accurate interpretation of the applicant’s evidence.
Particulars
(a)The applicant relies on the report prepared by Dr Pradhan annexed to his affidavit.
(2)The Tribunal committed jurisdictional error in failing to take into account relevant considerations in finding the applicant’s fear of persecution is not well-founded.
Particulars
(a)The applicant repeats and relies on Ground 1.
(b)It was not open to the Tribunal to find that threatening letters were not sent to the applicant because his wife did not move house (CB 24.9) when the applicant gave evidence that at the time of the second threatening letter his wife and children were at Nepalgunjs (T p 19).
(c)It was not open to the Tribunal to find implausible that had the applicant received any such letters he would not have provided them to his superiors (CB 24-25) when in fact the applicant said that he did (T 17.2, Q 216 CB 566).
(3)The Tribunal committed jurisdictional error in failing to accord the applicant procedural fairness and in not complying with sections 422B(3) and 425 of the Migration Act by not warning the applicant that material parts of his evidence would not be taken into account.
Particulars
(a)The applicant relies on and repeats Particulars pleaded in Ground 2 above.
(4)The Tribunal committed jurisdictional error in that its decision was affected by apprehended bias in circumstances where the Tribunal (i) constantly cut-short the applicant’s evidence, (ii) interrupted the applicant while he was giving evidence, (iii) did not construe the applicant’s evidence impartially, and (v) failed to seek clarification of critical evidence given by the applicant in finding that the applicant did no have a well-founded fear of persecution.
Particulars
(a)The applicant repeats and relies on Grounds 1-3 above.
(5)The Tribunal committed jurisdictional error by failing to consider critical integers of the applicant’s claim to fear harm because he belongs to a particular social group (“PSG”).
Particulars
(a)The applicant claimed that he feared persecution because he is a land-owning Pahadi Brahman which is a minority ethnic group in Rajapur (CB 79, 453 and 505).
(b)The applicant also claimed that he feared persecution because he belonged to a PSG comprised of community policemen attempting to establish human rights and equality in Kathmandu (CB 15).
As is apparent, the case sought to be argued at the hearing was substantially changed and enhanced, very shortly before the hearing date. Further, as is made clear by the particulars given of ground 1, the applicant sought to rely on the expert evidence of Dr Narayan Pradhan, an accredited interpreter, as to deficiencies in the interpretation provided at the hearing before the Tribunal.
An affidavit of Dr Pradhan, and a copy of the further amended application, was provided to the legal representatives of the first respondent only a couple of working days before the hearing. Not surprisingly, counsel for the Minister sought an adjournment of the hearing to enable the Minister to review the evidence of Dr Pradhan and determine whether to challenge it. The application for an adjournment was opposed by counsel for the applicant. On my intimating that I was disposed to grant the adjournment requested, in fairness to the first respondent, counsel for the applicant then did not seek to rely on the evidence of Dr Pradhan (T16/45). The challenge to the Tribunal’s decision on the ground of a breach of s.425 of the Act was maintained, but by general reference to the transcript of proceedings rather to specific instances of misinterpretation.
The first respondent was afforded the opportunity of hearing the submissions made by counsel for the applicant, and then to present written submissions in reply. Those submissions were filed on 20 February 2009. A further oral hearing was fixed for 20 March 2009. At that time, the parties had ‘competing’ versions of the transcript of the hearing before the Tribunal. Further, counsel for the applicant argued that the first respondent’s submission that any errors in translation were ‘small’ or ‘insignificant’ reinvigorated his reliance on the evidence of Dr Pradhan because, it was argued, a judgment could not be made as to what was small or insignificant without knowing what was mistranslated or not translated at all.
I admitted the expert evidence of Dr Pradhan, but allowed the first respondent to obtain its own expert evidence. I made orders on 20 March 2009 which effectively required the first respondent to identify which of the translation errors asserted by Dr Pradhan were controversial. The first respondent obtained evidence from Mr Ishwar Shrestha, an accredited interpreter. Many of the errors identified by Dr Pradhan were accepted by Mr Shrestha. Counsel for the first respondent has helpfully prepared a schedule, attached to the first respondent’s submissions dated 8 May 2009, which summarises the nine occasions on which the two interpreters disagreed. I do not intend to detail the nine instances of disagreement, as in my view none of them are of any significance or importance in the resolution of this application.
Neither party wished for there to be a further oral hearing, consequent on the evidence of Mr Shrestha, and their respective further submissions. In my view, a further oral hearing is unnecessary. There may, subject to my observations at the conclusion of these reasons, be a need for some further submissions and/or a hearing about costs.
I propose to deal with the applicant’s grounds of challenge to the decision of the Tribunal in the following order:
a)The failure to consider a critical integer of the applicant’s claim (Ground 5);
b)The challenge to the adverse credibility finding (Grounds 2 and 3);
c)The apprehended bias argument (Ground 4);
d)The s.425/translation argument (Ground 1).
The definition of ‘refugee’ referred to at paragraph [2] of these Reasons includes reference to a ‘particular social group’. The applicant contends that he formed part of two particular social groups, that were not considered by the Tribunal in its reasons:
a)As a member of an ethnic group known as Pahadi Brahmin;
b)As a member of the police force, specifically as a police officer involved in community policing with a view to recognising and maintaining human rights in Nepal.
What is contemplated by the descriptor “particular social group” was determined by the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 234 -7, Dawson J at 241, McHugh J at 257-8, Gummow J at 283 – 5, and Kirby J at 299 – 307, and by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 77 ALD 541 particularly at [36]. In my view, membership of a particular ethnic group such as the Pahadi Brahmin, or of a particular vocational group such as members of the police force, is capable of constituting a particular social group within the meaning of the Convention. In this matter, the Tribunal did not consider the potential existence and membership of the first group, and was dismissive of the police service being a particular social group (during the hearing on 26 May). A more discrete group, police involved in community policing and human rights, was not considered by the Tribunal.
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Gummow and Callinan JJ (with whom Hayne J agreed) said, at [26]:
“At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.”
The failure to decide the first question was regarded by their Honours as a failure to exercise jurisdiction. The applicant makes the same argument in this case.
If the applicant did advance a claim that he has a well founded fear because of his membership of either of these two particular social groups, a failure to address such claims is sufficient to amount to jurisdictional error rather than an error in the fact finding process.
In Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, the majority of the Full Federal Court (Allsop J, with whom Spender J agreed) said, at [42] after setting out two bases of claim in that case:
“This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s.414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Pejo-Wallsend (1986) 162 CLR 24 . . . It is to be distinguished from errant fact finding. . . If the sur place claim is, or is to be seen as, based on more than one foundation . . . both bases of the claim must be dealt with . . .”
Allsop J reached the conclusion that there had been jurisdictional error in not considering a claim, notwithstanding that it had not been highlighted in the hearing before the Tribunal, as long as it was not abandoned.
It is necessary, therefore, to determine whether the applicant did advance a claim that he belonged to the two particular social groups identified, and that he had a well founded fear of persecution as a result.
The Full Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 said at [8]:
“It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function `to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.' Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13].”
The leading authority on the extent to which the Tribunal must consider arguments not expressly advanced by an applicant is NABE v MIMIA (2004) 144 FCR 1. It is not enough that there be a factual error by the Tribunal in considering the claim. To constitute jurisdictional error the claim overlooked must be a substantial clearly articulated argument relying upon established facts. At [55] the Full Federal Court said:
“Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on a “substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v MIMIA (2003) 77 ALJR 1088 at [24] and [95]”
The Court endorsed the nature of the review function articulated by Allsop J in Htun v MIMIA at [42] namely that a review of the decision requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
Their Honours said at [58] that the review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chan v MIMIA (2000) 106 FCR 157 at [114]. Their Honours continued:
“It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v MIMIA (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”
At [63] their Honours concluded that it is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
Was such a claim raised in this case? At paragraph 2 of his initial statutory declaration that accompanied his application for a protection visa the applicant gave three bases for seeking refugee status:
a)His perceived political affiliation with the Nepali Congress Party;
b)His service as a police officer, and his taking action against members of the Maoist Party;
c)Because he is a Pahadi Brahman (“a caste that is disliked by some Maoist factions”).
This statement identifies the applicant as a member of a number of asserted social groups, and claims that he fears persecution because of it.
At paragraph 16 of the same statutory declaration the applicant contended, that members of the police force were targeted by the Maoists. At paragraphs 20 and 21 of the same statutory declaration the applicant linked his work in community policing with his receiving threats from the Maoists. This raises membership of the second social group identified earlier in these reasons.
As I will discuss in more detail when dealing with other grounds advanced by the applicant, I have listened to the audio recording of the hearing before the Tribunal on 26 May 2008 (exhibit 1).
During the hearing before the Tribunal, the applicant was asked (at 47:05) if he was targeted by the Maoists because he was an active police officer in the fight against the Maoist terrorists. The applicant’s response identified three reasons why he was a target, the first and third of which were:
a)“my enemies are with the police”
b)“relations between Tharu and our family”
The Tribunal member returned to who the applicant feared, and asked “who else do you fear”. The applicant made reference to the “Tharu”. This was spelt out for the Tribunal member at 51:28. The Tharu are a different social group (or caste) to the Pahadi Brahmin. The applicant explained that in the area where his family owned land, part of which was acquired by the former government to set up an army camp to combat the Maoist rebels, some 97% of the people were Tharu, and they were of the same mind as the Maoists (52.11). The applicant explained that the Tharu people were angry with him when the land was used to set up an army camp and they thought that the applicant and his family were supporters of the former government.
The applicant then went on to give an additional reason for his fear, being associated with his work in community policing.
In the applicant’s post-hearing submissions, at paragraph 8, reference is again made to the Tharu people and to the applicant’s ethnicity as Pahari Brahmin. At paragraph 9 of the submissions it was stated that with the support of the Terai people the Maoists had been attempting to seize lands owned by Zamindars for redistribution. The applicant said this latter group was part of the Pahadi Brahmin, to which he belongs. The uprising of the Tharu is referred to in article provided to the Tribunal at Bundle page 110ff.
Both Brahmin and Tharu are described as ethnic groups in the country information (Bundle page 349).
At paragraph 27 of the post hearing submissions, further reference was made to another threat to the applicant, being that the locals in Banke (where the applicant was posted) knew he was of Pahadi ethnicity and thus was perceived as an opponent to the Tharu people. It was said that the applicant’s ethnicity, profession and political affiliation made him a target in all three areas.
In my view, all of these references squarely raised a claim that the applicant was a member of a particular social group (Pahadi Brahmin) and held a well founded fear of persecution because of that membership, particularly from the Tharu people, but also from the Maoists.
Further, the applicant was plainly a member of the Nepalese police force, and squarely raised a claim that he was involved in community policing. That could in turn give rise to a claim that he was a member of another particular social group. The applicant linked the threats of harm to him by the Maoists as being related to his work in community policing.
Neither of these claims was dealt with by the Tribunal. The Tribunal did not seek to determine whether the applicant was a member of either of the particular social groups to which I have made reference.
It is possible, although it is not necessary to decide, that a third claim was raised of a fear of harm due to persecution by allegedly corrupt officials in the police department (referred to at paragraph [18] of the applicant’s post hearing submissions). On further investigation, it may be found that this was related to the applicant’s claim to be a member of a particular social group, namely police officers involved in community policing.
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 the Full Federal Court said at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In her reasons, the Tribunal member has focussed on the applicant’s asserted fear of harm from the Maoists, because of his work as a police officer. It is fair to describe that as the principal claim advanced by the applicant. However, in my view, the claims of feared persecution by reason of membership of the two particular social groups identified were squarely raised on the material before the Tribunal.
The Tribunal cannot be said to have dealt with either of those claims, simply by reciting the contents of the applicant’s statutory declaration at paragraphs [22] and [24] of the Reasons. No other reference is made to these claims in the Reasons. In my view, the compelling inference is that the claims have been overlooked. It cannot be said that findings on these matters have been subsumed into more general findings made by the Tribunal, because they address a different issue. There is no reference at all in the reasons to the conflict between the Tharu people and the Brahmin people. At paragraph [52] of the Reasons, it is clear that the Tribunal member considered only the applicant’s claims based on his work as a police officer generally involved in the investigation and prosecution of Maoists, and his imputed political opinion.
Counsel for the Minister submitted that there was no need to expressly consider the additional claims, because the Tribunal concluded that the applicant did not have the requisite fear. Therefore, it was argued, if the applicant was disbelieved as to having the requisite fear, it did not matter on what basis the fear was said to be based, because the applicant could never make out an essential element of the Convention definition.
However, as Jacobsen J said in SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [53] the Tribunal has a duty to consider the totality of the case put forward. His Honour referred to the judgment of Weinberg J in MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] that the Tribunal was bound to consider each incident of alleged persecution, not merely in isolation, but also in conjunction with the others.
In my view, by failing to consider at least two of the applicant’s claims, the Tribunal has failed to properly exercise its jurisdiction.
It follows that the decision of the Tribunal must be set aside, and remitted to be dealt with according to law.
I turn to the second basis on which the applicant’s claim is advanced contained in grounds 2 and 3 of the further amended application. I have already referred to the fact that the decision of the Tribunal to refuse the applicant’s claim was largely based on an adverse credibility finding.
Although a finding as to credibility is ordinarily a matter within jurisdiction, that is not a universal truth. As is made clear in decisions such as WAFP v MIMA [2003] FCAFC 319, relied upon by the applicant, if the decision of the Tribunal on an issue of central or critical importance is made on an erroneous understanding of the evidence, that can constitute jurisdictional error. That much is made clear in the passage from Craig, extracted at the outset of these Reasons.
In the present case, the determinative factor on which the claim to a protection visa was disallowed was because the Tribunal was unable to accept the applicant’s evidence that he had a well founded fear of persecution. The issue of credibility was dealt with in two paragraphs of the Reasons of the Tribunal, at paragraphs [53] and [54]. If the determination of the credibility issue was made by taking into account irrelevant considerations, or by failing to take into account relevant considerations, or was not supported by the evidence relied upon, this would, in my view, amount to jurisdictional error.
At paragraph [53] the Tribunal member sets out five matters that are said to have lead to the Tribunal concluding that the applicant was not truthful or credible. These are:
a)Doubts as to the authenticity of a letter dated 18 February 2008 produced by the applicant in support of his claim;
b)That despite the alleged threats of harm, the applicant’s wife and children have remained living safely in Kathmandu;
c)The failure of the applicant to provide copies of the letters threatening harm to his superiors in the police service;
d)The absence of harm to members of the applicant’s family who have remained living in Nepal; and
e)The applicant’s delay in leaving Nepal and seeking refugee status.
The Tribunal member does not state whether more weight was given to one factor or the other, nor whether each factor taken individually would have lead to the adverse finding on credibility. Rather, the way in which the matter is dealt with suggests that it was an accumulation of factors that has lead the Tribunal to conclude that the applicant was not a credible witness. That puts in context the submission of counsel for the Minister that an erroneous finding of fact on one or two of the matters relied upon would not be sufficient to amount to jurisdictional error, because the finding could be supported by the remaining evidence. The difficulty with accepting that submission is that the Tribunal member has not exposed any detailed consideration of the reason why she disbelieved the applicant. Was it primarily because of the doubt about the authenticity of the letter dated 18 February 2008? Or was it because of the combination of factors referred to, each reinforcing the other in the mind of the Tribunal member? Or was it for some other reason? In the absence of any explicit reasoning as to the process which lead the Tribunal member to reach the conclusion that she did, in my view, the challenge to the credibility finding cannot proceed on any assumption that one factor had greater or lesser influence or weight than another.
At paragraph [54] of the Reasons, it is stated:
“Overall, the Tribunal is not satisfied that the applicant fears persecution for any Convention reason should he return to Nepal. The Tribunal is not satisfied that he was targeted by the Maoists or that demand letters were sent to his home and to his brother and father. The Tribunal does not accept that the applicant or any of his family members are or were the targets of harm because of their actual or imputed political opinion. The Tribunal is not satisfied that the applicant received phone threats as claimed.”
At paragraph [55] of the Reasons it was said, in part:
“. . . given the degree of credibility problems with the evidence of the applicant, the Tribunal cannot give any weight to the statements provided in the documents which support the applicant’s claims that he has been the target of harm and is fearful of persecution should he return to Nepal. In light of the fundamental lack of credibility with the applicant’s evidence, the Tribunal is not satisfied that the statements relating to the applicant’s material claims in the documents are true.”
The Tribunal member contends that there is a “fundamental” lack of credibility with the applicant’s evidence. However, as I have said little analysis was given to the credit issue, although it formed the cornerstone of the decision. Parts of the applicant’s evidence were accepted. However, as has been made clear many times, the decision of the Tribunal should not be overly scrutinised with a view to finding error. This approach must be tempered with the approach, also expressed many times, that a decision maker must take to a claim for refugee status (recognised at paragraph 48 of the Tribunal’s reasons).
The applicant’s counsel attacked the Tribunal’s decision in two ways. First, it is said that the conclusion as to credibility was derived from a flawed analysis of the evidence. Secondly, it is said that the Tribunal was obliged to, but did not, put to the applicant the bases on which it proposed to disbelieve him and seek his comment or response.
When one analyses the five matters expressly relied on by the Tribunal, I conclude that there is merit in the first argument, but not in the second.
In documents provided to the Tribunal shortly before the hearing on 26 May, the applicant provided a letter purportedly under the hand of Police Inspector Ram Hari Sharma dated 18 February 2008. It has a reference number. It purports to be on the letterhead of the District Police Office Banke, Nepalgunj, where the applicant was last posted before he left Nepal. It reads:
“Based on our record, this is to certify that ex-Police Inspector [applicant] has imminent threat from the Maoists and its sister organization “Young Communist League”. For having undertaken the nature of responsibilities during his job; especially for conducting criminal investigation against Maoists’ rank and file, for having involved in war-like armed confrontation with Maoists guerrillas in Dolpa district of Nepal and for being used his personal land property by the government against the Maoists’ movement, [the applicant] has remained under Maoists’ hit list and therefore has become Maoists’ prime target.
[The applicant] was an honest and dutiful Police Officer with pleasant disposition. He resigned from the police force on October 31, 2007.
Any cooperation rendered to [the applicant] shall be greatly appreciated.”
Without explaining why suspicion was raised, the Tribunal, through the Department of Foreign Affairs, asked the Post in Nepal to make discreet inquiries as to whether the letter from Police Inspector Sharma was genuine. In response it was advised that enquiries of District Inspector Govinda Pariyar revealed that no police inspector of the name Ram Hari Sharma was stationed, or had been stationed at Banke. This lead the Tribunal to send a letter, pursuant to s.424A of the Act, to the applicant on 11 July 2008. Reference was made to the letter of 18 February supplied by the applicant. The letter concluded:
“This information is relevant to the review because it could lead the Tribunal to find that you are not being targeted by the Maoists or any other group in Nepal as a consequence of your work as a police officer or your political affiliations. This could lead the Tribunal to a finding that you did not leave Nepal because of a fear of persecution. If the Tribunal makes this finding it will not be satisfied about your claims and may affirm the delegate’s decision not to grant a protection visa.”
In response, by letter dated 25 July 2008, the applicant’s adviser stated that the letter relied upon was submitted honestly and the applicant had no reason to doubt its genuineness and integrity. A further statutory declaration of the applicant was provided. In it he says that the disputed letter was arranged by Mr Sharda Prasad Chaudhary, who is now an officer in charge of the Administration and Records Section of the Police Office in Banke. The applicant said that it would have been more appropriate for the Department of Foreign Affairs to make its inquiry with a person in administration rather than a District Police Inspector. A second letter from Inspector Sharma was provided together with a letter from the person who collected the letter from him, a Mr Gautam. Contact details were provided for Mr Gautam. The applicant submitted that Inspector Sharma may be known by some other name, or may be using an alias to protect his identity. Reference was made to ethnic tensions in the police force and to a mutiny in early July.
This additional material was disposed of by the Tribunal in one sentence: “The Tribunal does not find the applicant’s response to be convincing”. No explanation is given as to why it was not convincing. There is no evidence of any attempt to contact either Mr Chaudhary or Mr Gautam. No details of what enquiries were carried out by the Post are revealed on the record. The Tribunal was provided with two other documents supporting the applicant’s claim. A letter dated 19 May 2008 signed by Purushottam Sigdel, a journalist now living in the USA, stated that the applicant’s life was in jeopardy in the latter years of his service, and he was targeted by the “outlawed armed outfit known as Maoists and therefore was compelled to flee the country . . . “. This letter was referred to at paragraph 28 of the reasons of the Tribunal. A further letter in support from the vice President of the Nepalese Association Queensland states that police officers were threatened because of their occupation. Neither of these letters was questioned in any way, nor did the Tribunal explain why it disbelieved the authenticity of one letter but not of another two.
In my view, a Tribunal is entitled to disbelieve the applicant. However, where evidence is produced that, on its face, supports the applicant’s claim, a Tribunal acting within jurisdiction ought to do more than peremptorily disbelieve the applicant without giving cogent reasons for doing so. This is particularly so where there is further corroborative evidence of the applicant’s claim of persecution and fear, that is not dealt with at all by the Tribunal. A finding that the applicant cannot be believed, without providing reasons for that conclusion, in this case, amounts to a failure to properly exercise its jurisdiction.
Therefore, the Tribunal’s reliance on a finding of incredulity about the applicant’s response to its question about the letter from Inspector Sharma, could arguably amount to jurisdictional error in reaching the ultimate finding against the applicant’s credit, particularly when taken in conjunction with the following matters.
As to the second element relied on by the Tribunal, there was evidence available to it to conclude that the applicant’s wife and children were living in Kathmandu at the time of the hearing before it. However, the applicant’s counsel submits that the Tribunal’s finding was erroneous in so far as it accepted as a fact that the applicant’s family were in Kathmandu when the second and third threatening letters were sent to the applicant at his Kathmandu address. The applicant’s counsel refers to the applicant’s evidence that at the time the second letter was received, the applicant’s wife and children had moved to Nepalgunj (43:58 of audio recording).
That may be so but in my view, the Tribunal was entitled to be sceptical of the applicant’s claim that three threatening letters were received, but his wife and children remained living at a residence in Kathmandu, at an address known to the Maoists. On its own, reference to this matter does not evidence jurisdictional error.
The Tribunal found it “implausible” that the applicant did not provide the threatening letters to his superiors in the police force. In my view, this conclusion is based on a mistaken understanding of the evidence. In his interview before the Tribunal the applicant plainly said that he did give the threatening letters to his superiors. It is not clear on what basis the Tribunal concluded that the applicant did not. The finding that the applicant’s evidence was implausible is a strong indication that the Tribunal relied on it as adverse to the applicant’s credibility. Although it could be classified as an erroneous finding of fact, as counsel for the Minister contended, if it was used as part of a matrix of evidence to lead the Tribunal to come to an adverse conclusion about the applicant’s credibility, then a mistaken view of the evidence forming part of that matrix could amount to jurisdictional error.
Although not as strong as the preceding mistaken view of the evidence, the conclusion that the applicant’s family were unharmed was also a misstatement of the evidence of the applicant. When asked (46:40 of audio) whether his wife and children had been harmed, the applicant replied that they had “been mentally tortured”.
The final piece of the factual matrix relied upon by the Tribunal, namely the delay in leaving Nepal, was properly able to be used by the Tribunal in assessing the applicant’s credit.
Therefore, the Court is left in the position that the Tribunal has reached a conclusion as to the applicant’s credit based on five stated reasons. Two of those reasons involve a clear misunderstanding of the evidence. A third involves a failure to give any explanation why the applicant’s response was not convincing. In those circumstances, the Tribunal’s conclusion that the applicant’s credit was fundamentally lacking cannot be supported. As it was the basis on which the application for review was dismissed, in my view the Tribunal failed to properly exercise its jurisdiction in determining the applicant’s claim.
As earlier stated, the applicant also alleges that the Tribunal committed jurisdictional error by not putting to the applicant for his comment those pieces of evidence, or deficiencies in evidence that it intended to rely upon in reaching an adverse finding as to his credibility. Reliance is placed on decisions such as WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 and SZBELv MIMIA [2006] HCA 63.
In my view, the Tribunal member did sufficiently raise with the applicant those matters upon which she ultimately relied to find against the applicant on the issue of credibility. The genuineness of the letter of 18 February was specifically raised in a letter of 11 July sent by the Tribunal to the applicant following the hearing. The fact of harm to members of the applicant’s family, the provision of the threatening letters to his superiors, and the applicant’s reasons for delay in leaving Nepal was all canvassed during the hearing on 26 May. The applicant was given the opportunity to respond to questions about each of these matters. Whilst I have concluded that the Tribunal mistook important aspects of the applicant’s evidence, and thereby committed jurisdictional error, I do not accept that the Tribunal failed to give the applicant the opportunity to deal with those matters. That challenge to the decision is rejected.
The next ground of challenge requires me to consider the apprehended bias argument. In my view, this ground is not made out.
At the outset, I record that I have listened to the audio recording of the hearing before the Tribunal in its entirety and to some portions thereof more than once. In my view, throughout the hearing the Tribunal member acted entirely appropriately. She was both courteous and patient.
The test of apprehended bias, as reaffirmed by the Full Court in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14] is:
“The test is whether a hypothetical fair-minded lay observer, properly informed about the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the question to be decided.”
In my view, there is nothing in the way in which the proceedings were conducted that gives rise to an apprehension of bias. I reject the submission that the Tribunal member constantly interrupted the applicant’s evidence. The audio recording simply does not bear that out. There was nothing in the conduct of the hearing that should have alerted the Tribunal member to the possibility that there were persistent difficulties in translation. The applicant’s argument then devolves to the Tribunal member having a predisposition as to outcome evidenced by irrational and unreasoned findings. This argument relies upon the decision of the Full Federal Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, particularly at [115].
In my view the conduct of the Tribunal in this case is a very long way removed from that in NADH. A reasonable apprehension of bias must be firmly established: NBMB v Minister for Immigration & Citizenship [2008] FCA 149 at [18].
A distinction needs to be drawn between erroneous fact finding, or a mistaken understanding of the evidence, and a predisposition, unreasoned or irrational findings and selective use of evidence that would give rise to an apprehension of bias. In my view, the present case falls into the former category and not the latter. Although the reasons of the Tribunal leave a lot to be desired, particularly in the manner in which the credibility determination was made, it is a long way from having persuasive evidence that the Tribunal member was predisposed to a particular outcome.
Although one may have a sense of unease that the Tribunal member was determined to disbelieve the applicant, and looked for any skerrick of evidence to support that conclusion, that is not sufficient to substantiate a reasonable apprehension of bias. The Tribunal is entitled, if the evidence permits, to form a strong adverse view of the applicant and no inference of bias can be drawn from the mere adverse findings in the Tribunal’s decision: SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 at [29], citing VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. The onus of establishing perceived bias is a heavy one, and in my view it is not discharged in this case.
The final ground of review relied upon concerns the quality of the translation services provided by the Tribunal at the hearing on 26 May. This ground was one that generated considerable heat during the course of the hearings and lead to the prolonged nature of the proceedings.
The Tribunal provided a Nepalese interpreter for the hearing on 26 May. A video link was used. As the evidence of Dr Pradhan reveals, as confirmed by that of Mr Shrestha, there were a number of errors in translation during the course of the hearing before the Tribunal. That is not enough, in itself, to amount to a failure to comply with s.425 of the Act, and to afford the applicant procedural fairness. In SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 at [46] – [48] McKerracher J said:
“46. By s 425 of the Act, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 the Full Court held at [37] that s 425 requires the Tribunal to extend an objectively real and meaningful invitation to the application to attend the Tribunal’s hearing. This statutory obligation is upon the Tribunal whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. The Full Court stated [at 37] that circumstances where the invitation will not be real and meaningful include:
circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
47. In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Mansfield and Selway JJ held [at 17] that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that either the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or that errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
48. The interpretation before the Tribunal must be so incompetent that it effectively prevents the appellant from giving his or her evidence; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]. Further, the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant’s case in the Tribunal as well as to the Tribunal’s decision: Perera [at 45]. While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen (1960) 104 CLR 419 at 433. The translation must be sufficiently accurate to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [66]. As stated by Kenny J in Perera [at 25] reliable interpretation is no mere mechanical exercise but involves ‘both technical skill and expert judgment’. Her Honour observed [at 26] that perfect interpretation may be impossible as there is very rarely an exact lexical correspondence between the two languages being used.”
As Kenny J explained in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [21] the failure to provide appropriate translation services may lead to the conclusion that the Tribunal has committed jurisdictional error. Much turns on whether the applicant was able to participate effectively in the hearing, understand what was occurring and effectively present his case to the Tribunal. In Perera at [41] Kenny J said:
“41. What are the factors that might lead a reviewing court to conclude that the transcript of a tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, among others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evidence confusion in exchanges between the tribunal and the interpreter: cf Gonzales v Zurbrick 45 F 2d 934 at 936-7; United States v Urena 27 F 3d 1487 at 1492 (10th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F 2d 1056 at 1062.”
As I have said, I have listened to the audio recording of the hearing before the Tribunal. Apart from one instance it does not, on its face, disclose any obvious problems in the interpretation offered to the applicant. That one instance occurred at 17:20 - 18:07 when the Tribunal member was endeavouring to understand what the applicant’s fear was based on. The discussion culminated at 18:07 with the Tribunal member asking “Are you alright Mr Advisor?” The response was “there seems to be some communication problem”. However, the hearing proceeded and no further instances of that type occurred.
The Tribunal member did not ask the interpreter if he had spoken to the applicant and whether they were able to effectively communicate. The applicant’s voluntary adviser was not fluent in the Nepalese language. The applicant has some proficiency in English. In his application the applicant said that he could speak, read and write English (Bundle pp 491 and 47). However, he also ticked the box indicating that he required an interpreter.
A perfect translation or interpretation is not required: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [66]; Perera at [26]. This accords with the Full Court’s decision that the applicant must establish that he was effectively prevented from giving his evidence or that the translation errors were so material as to cause the decision making process to miscarry: WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29].
As is made clear by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37] – [38] s. 425 of the Act imposes an objective requirement on the Tribunal to provide a “real and “meaningful” invitation to participate in the hearing. See also SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 at [19]. The obligation for the Tribunal to act in a manner that is fair and just is now enshrined in s.422B(3) of the Act.
It must be a matter for determining in each case whether the applicant was objectively given a real and meaningful opportunity to present his case to the Tribunal. Of course, the misinterpretation of a critical question or answer, which is then utilised by the Tribunal as part of the basis of its decision, may be sufficient to demonstrate an absence of that opportunity. Much will turn on the circumstances of each case.
In this case, the applicant submitted a lengthy statutory declaration and a number of supporting documents before the hearing, and a statutory declaration and further documents following the hearing. Counsel for the Minister accepts that the translation that occurred during the hearing was not perfect. However, viewed objectively, in my view, the errors in translation were not such as to deny the applicant a real and meaningful opportunity to present his case.
The instance referred to at paragraph [82] of these Reasons was perhaps the high point of there being difficulties with translation, but the matter was dealt with and the hearing moved on. No similar instances recurred. The applicant, in his affidavit evidence, says that he was frustrated by the process, and by his having to frequently interrupt and correct the interpreter. However, the question of whether there was a failure to accord procedural fairness to the applicant and to allow him to meaningfully participate in the hearing is one that needs to be looked at objectively; otherwise every disappointed applicant will resort to an assertion of not believing they received a fair hearing on the grounds of interpretation difficulties.
If one listens to the audio recording, and reads the applicant’s documents submitted to the Tribunal, in my view the applicant was given the real and meaningful opportunity to participate in the hearing that the statute requires.
I have had regard to the evidence of both Dr Pradhan and Mr Shrestha. The deficiencies in translation are not such, as in my view, as to lead to the conclusion that there has been jurisdictional error in this case. The applicant’s case as to the bases on which he feared persecution, the particular social groups to which he belonged, and as to link between the fear of harm and membership of those social groups was sufficiently explained before the Tribunal. It is not possible to say that mistranslations infected the applicant’s credibility before the Tribunal because, as I have already concluded, the Tribunal erred in its jurisdiction in that regard in any event.
Some of the more obvious errors in translation were referred to by counsel for the applicant. It is obvious from the record that Nepal uses a different calendar to Australia. There was some confusion as to dates on which critical events occurred. However, I have listened to the audio recording and it is clear that the Tribunal member was aware of the different calendars being used, and of the difficulty that caused. On occasions the Tribunal member herself can be heard calculating the conversion from one calendar to the other. Counsel for the applicant referred to the fact that a lengthy hearing produced a short transcript. There were delays between questions and answers. However, this was not due to any problems in translation, but rather was taken up with the member making notes or formulating questions. As I have already said, I do not accept that the member constantly or evenly regularly interrupted the proceedings. It is correct to observe that in some instances the member did not pursue certain lines of questioning, or seek clarification of incomplete answers, but on the face of the record, it cannot be concluded that the only reason for that occurring was because of a deficiency in translation, or because the member became frustrated at the process. The audio recording does not support such a conclusion.
In my view, the applicant has not demonstrated jurisdictional error arising from the translation of the applicant’s evidence before the Tribunal. As the matter is to be remitted to be determined according to law for other reasons, it would be appropriate for the Tribunal to take care in the appointment of an interpreter for any further hearing to be conducted, and to ensure that the interpreter and the applicant are able to effectively communicate, and that the interpreter is able to properly and effectively interpret so that the same problems do not arise again.
There then remains the issue of costs. At the conclusion of the oral hearings, counsel for the applicant sought an order for costs, if the applicant was successful, fixed in the sum of $25,000 (applicant’s further submissions at [52]). The Federal Magistrates Court scale of costs would ordinarily allow an amount considerably less than that, but there is an acknowledged power to allow costs at a higher figure.
In support of his submission, counsel for the applicant referred to the need to master the three volumes of the agreed bundle of documents, to listen to the audio recording of the Tribunal hearing, and to obtain the evidence from the expert witness, Dr Pradhan. Further, there were two oral hearings, and the preparation of a number of written outlines of submissions.
On the other hand, the first respondent is entitled to refer to the fact that the applicant has been unsuccessful in relation to ground 1 of the further amended application, and it was the pursuit of this ground that necessitated the second oral hearing, the obtaining by it of expert evidence from Mr Shrestha, and the preparation of further written submissions.
Counsel have requested the opportunity to make further submissions on the issue of costs. However, I thought that it may assist the parties if I were to reveal my provisional view on this issue, and perhaps save the incurring of further costs.
In my view, the applicant is entitled to recover some of his costs. He has succeeded on the application. The application was opposed by the first respondent in respect of each of the grounds argued. It was therefore necessary for the Court to determine the matter. However, the applicant has not succeeded on grounds 1 (interpretation point) or 4 (the apprehended bias point). It was those two grounds that would have required considerable attention to the evidence of the expert witnesses, the transcripts and the audio recording of the Tribunal hearing. The applicant should not recover his costs of pursuing those grounds. It was also the pursuit of ground 1 that led, in my opinion, to the adjournment of the hearing on 30 January, and necessitated the further hearing on 20 March, and further submissions from the parties. It is strongly arguable that, in those circumstances, the first respondent ought to be entitled to all or part of its costs pertaining to ground 1.
In those circumstances, in an effort to do justice to both parties, it is my provisional view that the applicant should recover his costs fixed in the sum of $3,000.
If the parties wish to seek alternative costs orders, I will give directions to facilitate the filing of further written submissions.
Otherwise, orders will be made quashing the decision of the Tribunal, and remitting the matter to be heard and determined according to law.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 19 August 2009