BWZ16 v Minister for Immigration
[2020] FCCA 1265
•11 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWZ16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1265 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Brazil – Tribunal overlooking an integer of a claim in respect of fear of criminal gangs and extortion – long period of residence in Australia and perception of wealth as returnees – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414, 438 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 Carrascalao v Minister for Immigration (2017) 252 FCR 352 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ETA067 v Republic of Nauru (2018) 92 ALJR 1003 Huang v Minister for Home Affairs (No 2) [2019] FCA 2092 Isbester v Knox City Council (2015) 255 CLR 135 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Home Affairs v Buadromo (2018) 267 FCR 320 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v MZYTS (2013) 230 FCR 431 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZQHH (2012) 200 FCR 223 Minister for Immigration v SZSRS (2014) 309 ALR 67 MZAEU v Minister for Immigration [2016] FCAFC 100 Sapkota v Minister for Immigration [2018] FCCA 3043 Tickner v Chapman (1995) 57 FCR 451 |
| First Applicant: | BWZ16 |
| Second Applicant: | BXA16 |
| Third Applicant: | BXC16 |
| Fourth Applicant: | BXE16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 135 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 May 2020 |
| Date of last submission: | 27 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp by video conference |
| Counsel for the Respondents: | Mr N Swan by telephone |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 23 March 2018 into this Court, for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 135 of 2019
| BWZ16 |
First Applicant
BXA16
Second Applicant
BXC16
Third Applicant
BXE16
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 March 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are Brazilian nationals. The first and second applicants are the parents of the third and fourth applicants, both of whom were born in Australia. The first and second applicants’ oldest child, who was also born in Australia, has been granted Australian citizenship,[1] and is not a party to this litigation.
[1] CB 638; I was informed after the hearing of this matter that the second child is also now an Australian citizen
The first and second applicants arrived in Australia on 29 November 2002.[2] They applied for protection visas on 7 January 2003[3] on the basis of the first applicant’s claim of political persecution.[4] That claim eventually dissipated due to the passage of time. Suffice to say that the application was rejected by the Minister’s Department on 30 January 2003,[5] and by the then Refugee Review Tribunal (RRT).[6] An application for Ministerial intervention was similarly unsuccessful.[7]
[2] CB 34, 37
[3] CB 1ff
[4] CB 30-31
[5] CB 43ff
[6] CB 51ff
[7] CB 79
The couple remained in Australia. Their first child was born in 2007, the third applicant was born in 2009, and the fourth applicant was born in 2011.[8]
[8] CB 134-136
The third applicant and fourth applicant lodged protection visa applications on 23 December 2011,[9] which were refused by a delegate on 3 July 2012.[10] The RRT affirmed that decision on 17 December 2012.[11]
[9] CB 85-125
[10] CB 160-176
[11] CB 180-198
The delegate recorded claims made on behalf of the children that they faced being kidnapped either for ransom, because having returned from abroad the family would be perceived as being wealthy, or for the purpose of organ harvesting.[12] The RRT noted[13] the claims of fear of kidnapping based on a perception that the family, having been overseas, is wealthy. It cited information, at [52]-[53][14] that people who are wealthy or perceived to be wealthy are targeted for kidnapping, and other information at [56][15] that the risk of kidnapping in Brazil was moderate, with certain areas of high risk.
[12] CB 172
[13] at CB 181-182, and CB 186
[14] CB 189
[15] CB 189
The applicants then sought Ministerial intervention. The brief to the Minister included[16] references to the claim that the children faced being kidnapped for ransom because the family would be perceived as being wealthy. The request for Ministerial intervention was refused.[17]
[16] Supplementary Court Book (SCB) 7
[17] SCB 6
On 21 May 2014, in light of SZGIZ v Minister for Immigration,[18] all of the applicants lodged a further protection visa application.[19] It is this application which is the subject of the present proceeding. The applicants alleged that:
a)while residing in Brazil, the first applicant worked as a software engineer for the Department of Electoral Information, and was harassed and detained by the police as a result;[20]
b)Brazil is a dangerous and violent country.[21] The first and second applicants are concerned about the safety of their children in Brazil, and the government cannot protect their children from being kidnapped, trafficked and exploited. The authorities and the police are also often responsible for criminal activities.[22]
[18] (2013) 212 FCR 235
[19] CB 249-305
[20] CB 269; 388; 397
[21] CB 271
[22] CB 272; 394-396
Included in the applicants’ submission[23] was a UK Home Office report which extracted information to the effect that the Brazilian Federal Police estimate that 250,000 children are exploited for prostitution, although NGOs estimated that the figure was close to 500,000. It was submitted that the first and second applicants have every right to be concerned about the safety of their children. The submission continued[24] that if removed to Brazil the children would find themselves in a strange place where they do not understand the language and where there is a culture of criminality and corruption which is so great that they will suffer harm simply by being there.
[23] at CB 394
[24] at CB 395
Also submitted was the transcript of a “60 Minutes” programme on kidnapping in Brazil, which focused on child kidnapping,[25] and a letter from a family friend describing what might be described as the breakdown of society as he had observed it during a visit.[26] On 5 September 2014 the first applicant wrote to the Minister’s Department expressing her fear that her children would be kidnapped because they come from another country and that, “in Brazil this is related to people who have money”. In that letter the first applicant also referred to her children mostly speaking English.[27]
[25] CB 484-487
[26] CB 491-492
[27] CB 493
The visa application was refused on 29 October 2014.[28] The delegate noted the claim that the children speak little Portuguese and would be very vulnerable to kidnapping and sexual exploitation.[29] The application to the RRT was lodged on 26 November 2014.[30] Prior to a decision being made the RRT was incorporated into the Tribunal
[28] CB 497-525
[29] CB 508-509
[30] CB 530ff
The first Tribunal decision
The first Tribunal decision was made on 3 June 2016.[31]At [11][32] the Tribunal noted that a very detailed summary of the applicants’ claims appeared in the delegate’s decision, and that the parents did not dispute that summary. It also noted that they no longer relied on the claims of political persecution that were made in the initial application as they were no longer relevant.[33]
[31] CB 624-629
[32] CB 626
[33] CB 626 [13]
The parents’ claim, as recorded by the Tribunal, concerned the safety of their children all of whom were born in Australia. It summarised those claims as being that the children would have difficulty adjusting to life in Brazil and may suffer harm, including emotional and psychological problems as a result. It continued at [14] that:[34]
They suggest that their children might be more vulnerable to exploitation in Brazil due to a relative lack of familiarity with conditions there, but they also indicated to me that they could only speculate about this. They said they fear for their children being forced overnight to start life fresh in Brazil.
[34] at CB 626
The Tribunal then referred to independent reports submitted by the applicants about crime in Brazil and also about the general vulnerability of minors, particularly in poorer communities to exploitation, abuse, kidnapping and so forth. It recorded that the parents suggested that their children might be more exposed to socio-political instability and poor law and order, but both parents, “… appeared to acknowledge that the arguably poor law and order situation in Brazil affects the population generally”.[35]
[35] CB 626-627 [15]-[16]
After what appears to have been a discussion in which the Tribunal member informed the applicants about the relevant law, the Tribunal invited them to comment, specifically on the past findings that neither they nor their children faced a “real chance” of persecution. It put to them that their concerns about their children being significantly affected by generalised societal law and order issues appeared to be purely speculative. It recorded that:[36]
In response, [the first applicant] said that she did not think that her family would face a “real risk” of significant harm. She added however that she would not like to put her children in a situation where they are closer to the kind of crime related events that they read and hear about in the media.
[36] CB 627 [21]
The first Tribunal concluded by stating:[37]
Having considered all the evidence before me, having considered the situation of the children in particular, having taken into account the significant extent to which the concerns raised are baldly speculative, and giving weight to the evidence that the risk of harm described in this matter is a risk faced by the Brazilian population generally and not faced by the applicants personally …
it did not consider that the applicants met the “real risk” criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).
[37] CB 628 [23]
That decision was set aside by consent by this Court on 27 August 2017, because of the non-disclosure of a s.438 certificate.[38]
[38] CB 630-631
The remitter to the second Tribunal
Prior to the second Tribunal decision the first and second applicants’ older son was withdrawn from the application because he had obtained Australian citizenship.[39]
[39] CB 649-652
Country information was also lodged in the form of an article entitled, “Adolescents exposed to physical violence in the community: a survey in Brazilian public schools”.[40] The article recorded that almost all adolescents in the survey had witnessed some kind of violence, and many had experienced violence.[41] It also stated that[42] direct and indirect exposure to violence results in aggressive behaviour, negative emotions, symptoms of post-traumatic stress, and difficulties in interpersonal relationships.
[40] CB 660ff
[41] CB 663-665
[42] at CB 661
The second Tribunal decision
The second Tribunal was constituted by the same member who made the first decision. The Tribunal summarised the applicants’ claims by reproducing [12]-[22] inclusive of the first decision.[43] It may be noted that those paragraphs canvass some of the applicants’ claims, but also expressed the Tribunal’s doubts about whether s.36(2)(aa) of the Migration Act applied. This can be seen at [20] of the first decision.[44]
[43] CB 709-710
[44] reproduced at CB 710
The Tribunal then explained that it had not disclosed the s.438 certificate because it did not believe that it was valid,[45] referred to the oldest child being granted Australian citizenship and summarised some of the evidence given at hearing pertaining to the difficulties that the children may experience in school and society.[46] The applicants were given time to adduce further information, and the Tribunal summarised that information at [24]-[25].[47] The Tribunal’s conclusions were expressed as follows at [26]-[29]:
[45] CB 710 [17]
[46] CB 710-11 [20]-[21]
[47] CB 711
To sum up the applicants’ claims, they essentially continued to speculate that their children might witness or suffer student harassment and/or gang violence in Brazil. They also claimed that whereas they did not want to have to take their Australian citizen child … back to face possible harm in Brazil, they also felt it would be unreasonable to leave him behind in Australia without their close care and support.
Findings in relation to s.36(2)(aa) of the Act
I have considered all of the evidence before me, separately and cumulatively, taking account of the son … having recently become [an] Australian citizen. I have given some weight to [the first applicant’s] claim during the earlier Tribunal hearing to the effect that she did not think her family faces a “real risk” of significant harm in Brazil, her main worries being that she was reluctant to have her children live in a society where people witness violence and other crime. I have considered that the applicants do not wish to leave their son … in Australia and that in the event of removal to Brazil they would not want to be separated from him, the logical outcome being that they would take him with them in such a circumstance.
Overall, I find that the applicants’ claims about being directly or indirectly harmed due to law and order conditions in Brazil are bald speculations. As described by the applicants, and as discussed in reports they have submitted, the risk of harm to them is a risk faced by the Brazilian population generally and not faced by any of them personally.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Brazil, there is a real risk that they will suffer significant harm. Accordingly they do not meet the criteria of s.36(2)(aa) of the Act.
The decision under review was affirmed.
The Tribunal set out the procedural background to the applicants’ various visa applications and its previous decision (which had been set aside, by consent, in this Court).[48] The Tribunal recorded that, after the matter had been remitted to it, a further hearing had been held, at which the first and second applicants gave evidence and also spoke on behalf of their children (the third and fourth applicants).[49] The Tribunal summarised the applicants’ claims, by reference to what it had written in its earlier decision.[50] The Tribunal also summarised the matters raised by it and the applicants during the hearing, as well as the applicants’ post-hearing submissions.[51]
[48] CB 707-708 [2]-[14]
[49] CB 708 [14]
[50] CB 708-710 [16]
[51] CB 710-711 [17]-[25]
The Tribunal placed some weight on the first applicant’s evidence, given during the previous hearing, that she “did not think her family faces a ‘real risk’ of significant harm in Brazil, her main worries being that she was reluctant to have her children live in a society where people witness violence and other crime”. It also referred to the applicants’ desire not to leave their oldest son (an Australian citizen) in Australia, if they were required to depart, and that the likely outcome would be that he would return to Brazil with them.[52]
[52] CB 711 [27]
The Tribunal found that the applicants’ claims that they would be “directly or indirectly” harmed due to law and order conditions in Brazil were “bald speculations”. It also observed that the risk of harm to the applicants in Brazil “is a risk faced by the Brazilian population generally and not faced by any of them personally”.[53] The Tribunal concluded that, having considered all of the evidence before it, it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants returning to Brazil, there is a real risk that they will suffer significant harm.[54] The Tribunal thus found that the applicants did not satisfy s.36(2)(aa) of the Migration Act, and affirmed the delegate’s decision.
[53] CB 711 [28]
[54] CB 712 [29]
The current proceedings
These proceedings began with a show cause application filed on 21 January 2019. The applicants continue to rely upon that application. There are two grounds in it:
1.The Tribunal failed to comply with s. 414 of the Migration Act.
Particulars
(a)The Tribunal failed to consider and make findings about claims made by the first and second applicants that their children (the third and fourth applicants and their son … (date of birth 4 April 2007) who is a citizen of Australia) would face a real risk of significant harm in Brazil for reason of having been abroad for a considerable period of time and thus considered to be wealthy.
2.The decision of the second respondent was affected by a reasonable apprehension of bias.
Particulars
(a)The member of the second respondent whose decision is now under challenge was the same member who made the Tribunal's decision on the applicants' application for review on 3 June 2016, and in the course thereof made findings of fact adverse to the applicants.
I have before me as evidence the court book in two volumes filed on 28 March 2019 as well as a supplementary court book filed on 30 May 2019.
I have also been assisted by the written and oral submissions provided on behalf of the parties.
Consideration
Did the Tribunal fail to comply with s.414 of the Migration Act?
Applicants’ contentions
In considering whether the Tribunal complied with its review function as required by s.414 of the Migration Act it is first necessary consider the claims actually made by or on behalf of the applicants. Those claims included that the children would be of increased danger of kidnapping for ransom because the family have come from overseas and would be perceived to be wealthy. That claim was recorded in the delegate’s decision on the children’s application of 3 July 2012,[55] in the subsequent request for Ministerial intervention,[56] in the first applicant’s letter to the Minister’s Department at CB 493, and in the delegate’s decision of 29 October 2014.[57]
[55] CB 165-176
[56] SCB 7
[57] CB 508-509
It may be accepted that the applicants’ claims were to a certain extent unfocused, which was understandable in view of their not being legally qualified and English being a second language to the first and second applicants. But the claim that the children faced kidnapping because of the perceived wealth of their parents, the family having come from overseas, was clearly made. It was not abandoned. The applicants contend that it was a claim individual to this family and could not be dismissed on the basis that the danger was faced by the population generally. The Tribunal’s finding that the risk of harm to them is a risk faced by the Brazilian population generally[58] is said to have been irrelevant to this claim.
[58] at CB 712 [28]
The applicants contend that also irrelevant to this claim was the first applicant’s recorded concession that she did not think that her family would be facing a real risk of significant harm.[59] That is because the concession related not to the individual claim but to the Tribunal’s putting to them its opinion of the effect on them of the generalised law and order conditions in Brazil.
[59] see [20] of the first Tribunal decision reproduced by the second Tribunal at CB 710
In Minister for Immigration v SZSRS[60] at [34] the Full Federal Court stated:
… where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material.
[60] (2014) 309 ALR 67
The claim that the children would be of increased danger of kidnapping for ransom because the family have come from overseas and would be perceived to be wealthy was not mentioned by the Tribunal in either decision. In the applicants’ submission it was a claim clearly made that was required to be specifically addressed. The Tribunal is said to have failed to consider it in the sense of directing an active intellectual process to it.[61] Indeed the Tribunal is said to have failed to engage with the claim at all.
[61] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [46]; Tickner v Chapman (1995) 57 FCR 451, 462, 495; cf Minister for Immigration v MZYTS (2013) 230 FCR 431 at [38]
Minister’s contentions
In a letter dated 5 September 2014, which was provided by the applicants’ migration agent to the delegate, the first applicant stated that “we fear for our kids’ safety [in Brazil]. They would be targets for kidnappers just because they come from another country and in Brazil this is related to people who have money”.[62] This is the document relied on by the applicants in support of the present ground. Notably, this specific matter was not otherwise referred to in the applicants’ visa application[63] or their agent’s submissions (dated 5 September 2014) in support of the application,[64] or in any other document later given to the Tribunal. However, their agent’s submission did claim, among other things, that the applicants feared for their children’s safety on return to Brazil, including by reason of being trafficked, sexually exploited and/or kidnapped, and that the Brazilian state authorities were unwilling or unable to protect them. Included with the submission was country information which was said to “demonstrate the violent culture prevalent in Brazil”.[65] It is readily apparent that the claim the subject of the present ground (ie. the children would be the target of kidnappers) was a part of the applicants’ more general fear that their children faced harm arising out of the “violent culture” that was alleged to exist in Brazil.
[62] CB 493
[63] CB 249-305
[64] CB 399-412
[65] cf. CB 408-411
There is no obligation on the Tribunal to refer to every piece of evidence before it or every contention advanced by an applicant.[66] Nor is the Tribunal required to give a “line-by-line refutation” of a review applicant’s evidence. The Tribunal must “give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence”.[67] The fact that a matter is not referred to in the Tribunal’s reasons does not necessarily mean it was not considered at all.[68] A matter may not be referred to because it is subsumed in findings of greater generality or because a factual premise upon which it rests has been rejected,[69] or because it was not considered to be material.
[66] ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at [13] per Bell, Keane and Gordon JJ; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [49]
[67] Buadromo at [48]
[68] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [31] per French CJ and Kiefel J (Heydon and Crennan JJ agreeing, at [91] and [92]
[69] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]-[47]
In this case, the Minister submits that the Tribunal was plainly aware of the nature of the applicants’ claims, especially their claims to fear harm arising from the lack of law and order, and prevalence of violence, in Brazil. The Tribunal summarised the claims before it, at [16][70] (by quoting the summary of them contained in its earlier decision). Relevantly, the Tribunal’s reasons show that it was aware of and referred to the documents in which the applicants’ claims were set out,[71] which includes the letter, noted above.[72] The Tribunal also referred to the applicants’ claim that their children faced harm from the “generally poor law and order situation in Brazil”, that their children “might be more vulnerable to exploitation in Brazil due to a relative lack of familiarity with conditions there” and that they would be “more exposed to Brazil’s…poor law and order standards because they would be relatively unfamiliar with Brazilian society”.[73] It further referred at [15] to country information provided by the applicants about crime in Brazil, including “about the general vulnerability of minors, particularly in poorer communities, to exploitation, abuse, kidnapping, addiction and criminalisation” and stated that it had “considered all this material”.[74]
[70] CB 708-710
[71] cf. CB 709 [14]
[72] see also CB 711 [27] where the Tribunal stated that it had “considered all of the evidence before me” (and see further at CB 712 [29])
[73] at CB 709 [14]-[16]
[74] see also at CB 710 [20] its reference to the first applicant’s oral submission, made during the second hearing, that “there is a more pervasive criminality in Brazil compared with Australia”
The Tribunal stated at [28] that, “I find that the Applicants’ claims about being directly or indirectly harmed due to law and order conditions in Brazil are bald speculations”. The Minister submits that, fairly read, this is a broad non-acceptance of all the applicants’ claims that arise out of the “law and order conditions”, or the prevalence of violence, within Brazil. That general finding is said to subsume, and necessarily deal with and reject, the applicants’ more specific claim to fear that their children will be kidnapped on return to Brazil (an issue which plainly concerns the “law and order conditions in Brazil”), including because they had returned from overseas.[75] The Minister submits that the Tribunal did not need to do any more to deal with the issue the subject of this ground. There is said to have been no proper basis to infer that the Tribunal has overlooked, or failed to deal with, this matter.
[75] see Applicant WAEE at [47]
Furthermore, the Tribunal also found that the risk of harm faced by the applicants is a risk of harm faced “by the Brazilian population generally and not faced by any of them personally”.[76] The Minister asserts that that particular finding is not alleged by the applicants to involve jurisdictional error. It is said to be an additional general finding by the Tribunal and also is said to subsume the alleged fear of their children being kidnapped. There was, in the Minister’s submission, no need or obligation on the Tribunal to here specifically refer to the issue of kidnapping. The consequence of that finding is said to be, by reason of s.36(2B)(c) of the Migration Act, that there is taken to be no real risk of significant harm being suffered.
[76] also at CB 711 [28]
Resolution
This ground alleges that the Tribunal “failed to consider and make findings about” the applicants’ claims that their children faced a risk of kidnapping because they had come from overseas after a long period of absence.
I find that this ground has been established. A consistent claim made by the applicants was that they would be at risk of harm from criminal elements should they return to Brazil. The claim thus expressed generally was dealt with by the Tribunal but, in my view, an integer of the claim was overlooked. That integer was that the applicants would be viewed differently to the general population of Brazil because they would be returnees who had been absent for a long time and might be perceived to be wealthy. This would, so the argument runs, place them at higher risk to the general population because they would present as a more attractive target. It was not sufficient to dismiss the claim simply on the basis that the risk facing the applicants was one shared by the population of Brazil generally. The Tribunal needed to grapple with the integer of the claim that sought to draw on the particular characteristics of the applicants which would be apparent to criminals should they return to Brazil. Further, it is the fact that the family would be returning to Brazil, in effect, as foreigners that arguably would distinguish them from the population of Brazil generally.[77]
[77] After the hearing, counsel for the applicant provided a note on the interpretation of s.36(2B)(c) of the Migration Act and two authorities referred to by the Minister. In my view this case turns on its particular facts and no general issue of principle arises
By failing to consider that integer of the applicants’ claims, the Tribunal fell into error, which goes to jurisdiction.
Ground 2 – is the decision of the Tribunal vitiated by an apprehension of bias?
Applicants’ contentions
As noted above, the second Tribunal decision was made by the same member as the first. This is not necessarily a matter of concern. If for example the first Tribunal member misconstrued the law on a particular issue without reaching findings of fact adverse to an applicant, or if the findings of fact were inevitable, there being nothing to contradict them, there may be no legal difficulty in a subsequent Tribunal being constituted by the same person. That however is said to be not the case here.
In this case the presiding member, sitting as the first Tribunal, had put to the applicants[78] that their concerns about being significantly affected by the generalised law and order conditions in Brazil were purely speculative. He concluded that those concerns were “baldly speculative”.[79] The applicants submit that at that point it would be evident to an independent observer with knowledge of the case that the Member had formed a clear view about whether the applicants, or any of them, faced a real risk of harm upon being removed to Brazil. In Livesey v New South Wales Bar Association,[80] the High Court stated, at 300:
It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.
[78] CB 627 [20]
[79] CB 628 [23]
[80] (1983) 151 CLR 288
In the current case there was plainly no necessity, and the accumulation of evidence about for instance kidnappings and violence in Brazil could have led another Tribunal member to consider the applicant’s fears to be considerably more than “purely speculative” or “bald speculation”.
The applicants do not contend that the presiding member was actually biased. However, they submit that the evidence establishes that he had expressed clear views about a question of fact which constituted a live and significant issue in the remitted review. As such, the applicants submit that he should, upon his appointment, have recused himself on the basis that there was a reasonable apprehension that he had predetermined a significant issue in the proceedings.
The apprehension that the presiding member had predetermined an issue of fact is said to be reinformed by his adoption in his second decision of [20] of his first decision and that he again concluded, in his second decision, that the applicants’ claims were “bald speculations”.[81]
[81] CB 711 [28]
Minister’s contentions
There may be an apprehension of bias if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial or open mind to the resolution of the question to be decided.[82] An allegation of apprehended bias must be “firmly established” before it is made out.[83] The fair-minded lay observer is aware of the nature of the decision and the context in which it was made, as well as having knowledge of the circumstances leading to it.[84] The fact that a decision maker has previously thought about, or even expressed a view on the same or a similar issue does not, of itself, give rise to an apprehension that the decision maker will not bring a fair and impartial mind; there is no requirement that the decision maker has “a blank or empty mind” on the topic(s) at hand. The question is whether the decision-maker has approached his or her task with a mind “open to persuasion”.[85]
[82] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; Minister for Immigration v SZQHH (2012) 200 FCR 223 at [37]
[83] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [135]
[84] Isbester v Knox City Council (2015) 255 CLR 135 at [23]
[85] SZQHH at [38], [81]
It is true that the same presiding member made the Tribunal’s first decision (in June 2016) and the second decision (in March 2018). Significantly, however, the first and second applicants (ie. the adult applicants) attended the hearing that took place in June 2016, before the Tribunal’s first decision.[86] The applicants plainly received the Tribunal’s first decision (given that they sought judicial review of it) and, it can be inferred, were aware of its contents, including the findings made by the presiding member. The first and second applicants also attended the January 2018 hearing, which took place after this Court’s remittal but before the second Tribunal’s decision (in March 2018).[87] It would have been readily apparent to the first and second applicants that the same presiding member was again hearing their review application. Notwithstanding, there is no evidence that the applicants raised any concern about, or objection to, the same presiding member again presiding, either during the January 2018 hearing itself, or in the almost two-month period after the hearing but before the Tribunal’s second decision was made. In these circumstances, the Minister contends that the applicants have waived any right to object to the same Tribunal member hearing the matter on the second occasion.[88] This alone is said to be sufficient for the ground to be dismissed.
[86] CB 602-605
[87] CB 654-657
[88] cf. Huang v Minister for Home Affairs (No 2) [2019] FCA 2092 at [44]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76]
In any event, for the following reasons, the Minister submits that no reasonable apprehension of bias is established. The fact that the same Tribunal member hears and determines the matter on remittal is not, of itself, sufficient to establish an apprehension of bias.[89]
[89] Sapkota v Minister for Immigration [2018] FCCA 3043 at [23]; MZAEU v Minister for Immigration [2016] FCAFC 100 at [39]-[48]
The nature of the findings made by the presiding member in the Tribunal’s first decision are also important. This is not a case where the presiding member made critical and adverse findings (or comment) about the applicants themselves or their claims. There was, for example, no finding (or even a suggestion) that the applicants lacked credibility, were unreliable witnesses or had invented aspects of their claims.
Rather, the Tribunal’s first decision simply turned on its view, on the basis of the evidence and claims then before it, that the applicants’ concerns as to harm they might suffer on return to Brazil were “speculative” and because the risk of harm raised by the applicants was one faced by the population of Brazil generally.[90] It should be noted that this was put to the applicants by the Tribunal and, in response, the first applicant stated that she “did not think that her family would be facing a ‘real risk’ of significant harm” on return,[91] The fact that the presiding member expressed these views in the first decision, on the basis of the material then before him, does not give rise to a reasonable apprehension that he might not approach the second decision with a “mind open to persuasion”, especially when account is taken of the course of the remitted review application before the Tribunal (see below). As noted above, a decision maker is not required to have a “blank or empty mind” before making his or her decision, and the fact that the decision-maker has previously expressed a view on the same or similar subject does not, of itself, give rise to a reasonable apprehension of bias.
[90] see CB 628 [23]
[91] see CB 627 [20]-[21]
As was observed in Isbester at [23], the fair-minded lay observer is aware of the context of the decision and the circumstances leading to the making of it. Importantly, in this case:
a)after this Court remitted to matter to the Tribunal, the applicants were invited to attend a further hearing before the Tribunal and to give evidence and present argument;[92]
b)the Tribunal explained that it had, at this second hearing, “allowed the applicants a fresh opportunity to raise any new concerns or information that they might consider relevant to their case”.[93] That included inviting the applicants to “describe the harm [their] children would suffer in the event of removal from Australia to Brazil”, and asking the applicants to “comment on whether the risk of harm described in their testimony was a real risk, as their claims appeared to be purely speculative”.[94] The Tribunal also stood the hearing down for a period to allow the applicants to “gather their thoughts” and then present any other information they might wish;[95] and
c)the Tribunal granted the applicants an opportunity to provide, within 14 days, any further submissions or evidence that they wished, which was taken up, and considered by the Tribunal.[96]
[92] CB 640-641
[93] CB 710 [18]
[94] CB 710-711 [20]-[21]
[95] CB 711 [22]
[96] CB 711 [22]-[25]
The Minister submits that a fair-minded lay observer would view the totality of the circumstances as showing that the presiding member approached the second decision with a “mind open to persuasion”, ensuring that the applicants had the opportunity to put forward whatever new evidence or claims they wished, and then considered the totality of the material before him in the course of making his decision afresh. No reasonable apprehension of bias is said to be established in all the circumstances.
Finally, the applicants allege that the apprehension that the presiding member had predetermined an issue of fact is reinforced by his adoption of paragraph [20] of his first decision in the second decision, and also that he again concluded that the applicants’ claims were “bald speculations”. Paragraph [20] of the first decision described questions asked and answers given in the first hearing. It was quoted in the second decision at [16], as part of a longer quotation of [12]-[22] of the first decision. In [12]-[22], the first Tribunal had described the applicants’ claims and also the evidence given during the first Tribunal hearing. It is said to be entirely unsurprising that the presiding member might choose to quote those paragraphs, given that they recite historical matters, rather than unnecessarily redraft them. The course taken does not in any way suggest that the Tribunal’s mind was not open to persuasion when approaching the second decision. Further, no reasonable apprehension of bias could arise simply from the Tribunal’s use of the words “bald speculation” in both decisions. Also, the applicants’ reliance on the Tribunal’s use of quotes, and findings made, in the second decision record, so as to confirm an apprehension of bias, is an approach warned against by the High Court, because it runs the risk of inverting the proper order of inquiry, by first assuming the existence of a reasonable apprehension.[97]
[97] see Michael Wilson & Partners Ltd at [67]
Resolution
This ground alleges that the Tribunal’s decision was affected by a reasonable apprehension of bias. A reasonable apprehension of bias is said to have arisen because:
a)the same presiding member made the Tribunal’s first decision and then also made the second decision (after the first had been set aside by consent in this Court);
b)in the first decision, the presiding member described the applicants’ concerns about returning to Brazil as “baldly speculative”, which amounted to the expression of “clear views about a question of fact”, and gave rise to a reasonable apprehension that “he had predetermined a significant issue in the proceedings”.
I prefer the Minister’s submissions on the question of an apprehension of bias. First, there is no reason in principle why the Tribunal needs to be reconstituted with a different member on remittal. Whether there is a reconstitution must depend on the circumstances. In the present case, the remittal was based upon an error identified concerning a non disclosure certificate which was dealt with by the Tribunal in its reasons in the decision currently in issue. No complaint was raised about that aspect of the Tribunal’s reasons.
Secondly, there is no reason in principle why the Tribunal should not on remittal have regard to its earlier reasons. Those earlier reasons can, and did, appropriately frame the issues necessary to be considered upon further review. The mere fact that the Tribunal referred at some length to its earlier reasons does not give rise to a reasonable apprehension of bias.
Thirdly, the Tribunal at the hearing which the applicants attended on 31 January 2018 specifically invited comment from the applicants on the most contentious aspect of its earlier reasons, that being the finding that the concerns of the applicants concerning the risk posed by criminal elements was mere speculation. This satisfies me that the presiding member maintained an open mind both on that issue and the case more generally and the circumstances would be thus regarded by a fair minded observer.
I reject the second ground.
Conclusion
The applicant have succeeded in establishing that the Tribunal fell into error in the manner alleged in the first ground. They should, therefore, receive the relief they seek. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 June 2020
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