CDO16 v Minister for Immigration
[2017] FCCA 6
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDO16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 6 |
| Catchwords: MIGRATION – Review of International Treaties Obligations Assessment (ITOA) – applicant claiming a fear of harm in Senegal on religious grounds, having converted from Islam to Christianity – previous consideration of claims by a delegate of the Minister, the former Refugee Review Tribunal and the United Nations Human Rights Committee – previous domestic consideration not including a complementary protection assessment – whether the ITOA was procedurally unfair considered – reviewable legal error established. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5K, 5J, 5M, 36, 46A, 48B, 54, 195A, 417 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Cases cited: Ashmore v Commissioner for Superannuation [2000] FCA 1816 Chen v Minister for Immigration (1994) 48 FCR 591 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 Isbester v Knox City Council (2015) 89 ALJR 609 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 WZARH v Minister for Immigration (2014) 230 FCR 130 |
| Applicant: | CDO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | DAVID HUME, IN HIS CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
| File Number: | SYG 2077 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | Labour Pains Legal |
| Counsel for the Respondents: | Mr M J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the applicant is not to appear on the transcript of proceedings.
The Court declares that the International Treaties Obligations Assessment made on 21 July 2016 was not made in accordance with law.
The Minister is restrained, by himself or by his Department, officers, delegates or agents from relying upon the International Treaties Obligations Assessment.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2077 of 2016
| CDO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| DAVID HUME, IN HIS CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of an International Treaties Obligations Assessment (ITOA) made on 21 July 2016. The Assessor found that Australia does not have non refoulement obligations in respect of the applicant. The applicant claims that he was denied procedural fairness in the ITOA because he was not allowed an oral hearing and because the Assessor misconceived his claim concerning relocation. He also asserts an apprehension of bias and a failure to take into account relevant information. For the reasons which follow, I am satisfied that the ITOA is affected by reviewable legal error.
The following statement of background facts is derived from the applicant’s submissions filed on 25 November 2016.
The applicant is a national of Senegal. He was born in 1978 and is 38 years old.
The applicant entered Australia on 14 October 2008 on a valid transit visa and applied for a protection visa on 9 April 2009.
The applicant claimed[1] to fear persecution in Senegal as an apostate from Islam, having converted to Christianity in 1994. The applicant claimed members of his family in his home town severely beat him for the shame and disgrace he had brought upon them by his conversion. He also claimed that “Mourides”[2] members had participated in the beating. He claimed he was kept in his father’s home without food for three days after this and that his father wanted him dead unless he was prepared to convert back to Islam. The applicant claimed he ran away to the town of Kaolack in Senegal where he lived for some time, working as a welder. He claimed to the Refugee Review Tribunal (Tribunal) that two of his brothers and their associates (relatives, and other Mouride Brotherhood members) located him there, beat him up and left him for dead. He fled to South Africa in 1998 and in 2006 returned to his home town in Senegal but found that his problems there had not subsided. He fled to South Africa again and from there came to Australia. He claimed to fear harm from his family and the Mouride Brotherhood because they tried to kill him and saw him as someone who deserved to die as a traitor who had left his religion to become a Christian.
[1] Court Book (CB) 8-10
[2] an Islamic Brotherhood organisation in Senegal
On 8 July 2009 a delegate of the Minister (delegate) refused his application[3]. The delegate was not satisfied the applicant genuinely feared being persecuted for religious reasons.[4]
[3] CB 55-64
[4] CB 61
The applicant applied to the Tribunal for review of the delegate’s decision.
On 28 October 2009 the Tribunal affirmed the delegate’s decision, but on different bases.
The Tribunal found[5] the applicant to be a credible witness who spoke convincingly about his conversion and his commitment to Christianity. The Tribunal found his knowledge of Christianity to be commensurate with someone who had converted, moved churches extensively and was not very well educated. The Tribunal accepted the applicant came from a devout Muslim family which was part of the Mouride Brotherhood, and that he converted to Christianity in 1994.
[5] CB 65-95 at [151]-[152]
The Tribunal also accepted[6] that the applicant’s family opposed his conversion and that following his baptism some members of his family and their neighbours attacked him and kept him at home for three days without food, telling him that the Mourides leader would kill him or place a fatwa on his head.
[6] at [153]-[154]
The Tribunal accepted[7] the applicant ran away from his home town to Kaolack where he was located by two of his brothers and their associates (relatives, and other Mouride members), and they beat him up. The Tribunal accepted when the applicant returned to his home town from South Africa he heard his family were looking for him so he returned to South Africa. The Tribunal accepted at [167] that the applicant’s family wished to punish the applicant for no longer practising Islam and for changing religion, and that the family was still angry with the applicant.
[7] at [155]-[156]
On the basis of country information the Tribunal did not accept the Mouride Brotherhood had or would harm the applicant[8].
[8] at [162]
In answer to the question the Tribunal put to itself at [169], “whether the government failed or is unable to protect the applicant from persecution”, the Tribunal found at [176] that the applicant did have adequate or effective state protection available to him and that consequently his fear of persecution was not well founded. The Tribunal did not express its findings in terms of relocation.
The Tribunal made no explicit findings with respect to the applicant’s claims at the Tribunal hearing at[9] that he would not be safe anywhere in Senegal because of the presence of a large family, which would find him wherever he went.
[9] CB 87 at [125]-[126]
Following the Tribunal decision, and upon the reference the Tribunal had given to the Minister that the applicant’s devout Muslim family had attempted to harm him on two occasions and had made threats on his life[10], the Department initiated a Ministerial Intervention request for consideration under s.417 of the Migration Act 1958 (Cth) (Migration Act)[11].
[10] at [180]
[11] CB 96
On 4 June 2010 the applicant was informed that the Minister had decided not to intervene[12].
[12] CB 114
On 27 September 2010 the applicant, through his pro bono advisors, made a further request for Ministerial Intervention under ss.417 and 48B[13]. The requests included a statutory declaration of the applicant made 21 October 2010 in which at [7] the applicant set out his fears of his family upon relocation within Senegal, separate from and in addition to his fears of the Mouride Brotherhood[14].
[13] CB 116-128
[14] CB 122-123
On 4 February 2011 the applicant was informed that the request would not be sent to the Minister[15].
[15] CB 131
Between 10 February 2011 and April 2011 the applicant, through his pro bono advisor, made further representations to the Department and the Minister[16].
[16] CB 133-143
On 19 April 2011 the applicant submitted a communication to the Human Rights Committee of the United Nations for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)[17]. The communication included a statutory declaration made by the applicant on 10 April 2011 in which at [4] he reiterated his fears of his family upon relocation in Senegal[18].
[17] CB 145-155
[18] CB 173
On 24 March 2012 complementary protection under s.36(2)(aa) of the Migration Act commenced by proclamation under the Migration Amendment (Complementary Protection) Act 2011 (Cth). The applicant has not made a fresh protection visa application in reliance upon that provision.
On 8 December 2014 the United Nations Human Rights Committee decided that the applicant’s removal to Senegal would not violate his rights under Articles 6, 7 or 18 of the ICCPR on the basis that the factual conclusions of the Tribunal were not shown to be manifestly unreasonable. The Committee recognised the applicant’s claim that he feared harm from his family on relocation[19] and it concluded at page 11[20]:
it was not shown that the authorities in Senegal would not generally be willing and able to provide impartial, adequate and effective protection to the author against threats to his physical safety, and that it would not be unreasonable to expect him to settle in a location, especially one more distant from [his home town], where such protection would be available to him. Provided that the author would only be returned to such a location where the State party determines that adequate and effective protection is available, the Committee cannot conclude that removing him to Senegal would violate the State’s Party’s obligations under article 6 or 7 of the Covenant.
[19] at 4.3, 7.2
[20] Decision included in Supplementary Book of Documents at pages 2-12
On 16 February 2015 the applicant made a further request for Ministerial intervention[21].
[21] CB156-194
On 18 April 2015 Part 2 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy) Act 2014 (Cth) commenced by proclamation. These amendments apply to protection visa applications made on or after 16 December 2014[22]. These items included changes to the Migration Act in ss.5H, 5J, 5K and 5M which provided the core of the new statutory framework by which the government provided its interpretation of terms and concepts in relation to refugees. The effect of s.5J(1)(c) of those amendments was that relocation did not have to be shown to be “reasonable”.
[22] table items 14 and 22 of s.2 and item 28 of Schedule 5; Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation dated 16 April 2015 (FRLI F2015L00543)
On 4 August 2015[23] a Departmental officer, a Ms Bousamra, wrote to the applicant notifying him of the commencement of an ITOA. This letter stated the ITOA would consider “Australia’s non-refoulement obligations” under the Refugees Convention, the Convention Against Torture and the ICCPR. The letter also referred to “Various provisions of the Migration Act 1958” containing “concepts relevant to the assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations. Therefore this assessment will use relevant provisions contained in the Act…”. The letter did not specify the “various provisions” it referred to.
[23] CB 195-196
Between 28 August 2015 and 11 September 2015 the applicant’s pro bono advisor received assurances from the manager of the ITOA team that he would be provided with the sections in the Migration Act referred to in the letter of 4 August 2015 as he had requested[24].
[24] Affidavit of J Weingarth made 31 October 2016 at [7]-[11]
On 16 September 2015 the applicant’s advisor provided written submissions dated 14 September 2015[25]. The submissions at page 4 refer to the Department’s failure to provide the sections.
[25] Annexed to Affidavit of J Weingarth made 31 October 2016
On 20 May 2016[26] Ms Bousamra wrote to the applicant’s advisor inviting comment on information. The letter referred to the proposition that the applicant could relocate to Dakar “to avoid any harm feared from your family in [your home town]. Dakar is 188 kilometres from [your home town]. It appears unlikely you would encounter your family in Dakar.” [27] The letter gave the applicant 14 days to respond.
[26] CB 198-200
[27] CB 200
Some time between 20 May 2016 and 6 June 2016 the carriage of the assessment was taken over from Ms Bousamra by the second respondent, David Hume, then Acting Assistant Director of Onshore Protection NSW, Team 3 (the Assessor).
On 6 June 2016[28] the applicant’s advisor, Mr Weingarth, describing himself as a “retired senior aged Solicitor with very limited resources at my disposal”, responded to the Minister’s Department’s letter of 20 May 2016 and made a number of requests, including for Departmental guidelines or policies to be relied on, and for a further eight weeks to respond calculated from the date of receipt of the documents sought by him, “having regard to the substantial work now involved”. The letter indicated that “a great deal of work is involved, including interviewing and taking statements…as well as obtaining, where possible, pertinent information/evidence from Senegal (translating such material)”.
[28] CB 203-204
On 7 June 2016[29] the Assessor emailed Mr Weingarth allowing a further two weeks (to 28 June 2016) to respond to the invitation to comment of 20 May 2016. The Assessor stated it was not “our practice to provide hard copies of … departmental policies and procedures…. LEGENDcom is an electronic database of Migration and Citizenship legislation and policy documents which is available to members of the public on a subscription basis: The Assessor also confirmed receipt of “your submission of 4 (sic) September 2015”.
[29] CB 205
On 29 June 2016 at 2.25pm[30] Mr Weingarth emailed the Assessor seeking additional time to 15 July 2016 subject to the Minister’s Department supplying him with copies of the relevant policy documents, references to the previously requested Migration Act concepts referred to in the Department’s letter of 4 August 2015 and copies of Court/Tribunal decisions to be relied on.
[30] CB 210
On 29 June 2016 at 3.45pm[31] the Assessor replied to Mr Weingarth’s email reiterating (among other things) that it was not “our practice” to provide hard copies of departmental policies and procedures. The email concluded:
Instead of responding to the substantive issues, you have asserted that I am biased, unqualified, and do not understand the importance of this ITOA to [the applicant]. It is therefore difficult for me to accept that allowing you a further extension of time to respond would be productive.
[31] CB 209
On 29 June 2016 between 3.45pm and 5.12pm the Assessor and Mr Weingarth spoke by telephone. Later that day the Assessor wrote to Mr Weingarth confirming that further to their telephone discussion that day Mr Weingarth had until 15 July 2016 “to respond to the substantive issues set out in the procedural fairness letter of 20 May 2016.”
On 18 July 2016[32] Mr Weingarth emailed the Assessor setting out matters discussed in the telephone conversation on 29 June 2016, including the Assessor’s alleged statement that “too much time had already been spent on [the applicant’s] case and that the objective country information is all against him”. Mr Weingarth complained that “[c]ompletion of the drafting of my comprehensive submission in reply (many pages and rebutting all of the department’s assertions) is being frustrated by the department’s conduct; in particular by the denial of material…”.
[32] CB 212
At 4.45pm on 21 July 2016 Mr Weingarth emailed the Assessor to reiterate his concerns[33]. On the same day the Assessor made the ITOA which concluded that Australia does not have non-refoulement obligations to the applicant[34].
[33] CB 213
[34] CB 216-235
The Assessor characterised the claim of fear of family upon relocation as only that his family would see him and report him to the Mouride Brotherhood[35]. The Assessor repeated verbatim the disclosure of the issue of relocation made in the departmental letter of 20 May 2016[36].
[35] CB 219
[36] CB 221
On the basis of country information the Assessor rejected claims relating to the Mouride Brotherhood, relations between Christians and Muslims, apostasy and proselytising in Senegal.
The Assessor concluded in relation to the relocation that: “Moreover, no credible information was located which suggests that the claimant would be denied protection from the Senegalese authorities, or that he would be unable to safely relocate to Dakar”[37].
[37] CB 232
At the trial of this matter I queried with counsel why the applicant had not made a second protection visa application, limited to complementary protection, in reliance upon the decision of the Full Federal Court in SZGIZ v Minister for Immigration [2013] FCAFC 71. It appears that (perhaps because he was otherwise engaged in his claim before the United Nations Human Rights Committee) the applicant did not take advantage of that opportunity prior to it being foreclosed by amendments to the Migration Act.
The present proceedings
These proceedings began with a judicial review application filed on 3 August 2016. That application was amended on 8 November 2016. The applicant now relies upon a further amended application tendered in court by leave at the trial on 12 December 2016. That application deletes what was the first ground in the amended application and raises four new grounds:
That the International Treaties Obligations Assessment (ITOA) was not made according to law:
1. (deleted)
2. because the Assessor failed to afford the applicant procedural fairness by not allowing an oral hearing which would have given the applicant an opportunity to present evidence and arguments on his claims that he could not safely to relocate to Dakar because of a well founded fear of harm from his family in that locale.
3. because the Assessor misconceived the applicant’s claim about why his relocation to Dakar was unsafe, and as a result failed to consider an integer of this claim, ie that the applicant feared harm from his family themselves in Dakar, and not just because they would see him and report him to the Mourides Brotherhood.
4. because the Assessor’s conduct of the ITO assessment gave rise to a reasonable apprehension of bias.
Particulars
a. certain reasons the Assessor gave for his refusal to allow the applicant further time to make submissions would raise an apprehension in a fair-minded observer that the Assessor approached his decision otherwise than with an open and impartial mind, and that he had closed his mind to a proper and genuine assessment of the applicant’s evidence.
5. because the Assessor failed to take into account other material relevant to the ITOA assessment being:
a. The applicant’s legal advisor’s submissions dated 14 September 2015 and its Annexures numbered 4, 10, 11 and 13.
b. These annexures were relevant as they provided updated material on claims made by the applicant:
i. Of the risk of harm from his family upon relocation;
ii. Of inadequate state protection on relocation;
iii. Of the risk of harm faced by the applicant as an apostate.
In addition to the book of relevant documents filed on 6 September 2016 I have before me as evidence a supplementary bundle of relevant documents filed on 24 November 2016 and three affidavits by Mr Weingarth made and filed on 31 October 2016, made 28 October 2016 (filed on 8 November 2016) and made and filed on 8 December 2016. Mr Weingarth was required for cross-examination.
Both the Minister and the applicant made pre-hearing written submissions and also made oral submissions at the trial on 12 December 2016. I have been assisted by those submissions.
Consideration
The applicant’s submissions
Grounds 2 and 3 – breach of an implied condition of procedural fairness
The applicant submits that procedural fairness required the Assessor to convene an oral hearing of the applicant’s claims, at least in relation to his claims concerning his fear of harm from his family on relocation in Dakar. It was not sufficient for the Assessor to rely on country information in relation to this claim, and unfair either that the applicant’s credibility in relation to this claim was put into issue or that the claim was misconceived.
Further, if the Assessor (and his predecessor) misconceived the family harm/relocation Dakar claim, he failed to address the claim as put by the applicant which was a denial of procedural fairness[38].
[38] Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia[2010] HCA 41; (2010) 243 CLR 319 at [90]
In Minister for Immigration v SZSSJ[39] at [74] the High Court concluded that, as ITOAs are undertaken for the purposes of ss.48B, 195A and 417, there is an implied statutory condition that procedural fairness is required in the undertaking of that process.
[39] [2016] HCA 29; (2016) 90 ALJR 901 at [74]-[75]
The Court in SZSSJ at [74]-[75] found this implied condition of procedural fairness required a procedure that was “reasonable in the circumstances to afford an opportunity to be heard…” and that there would be a breach of the condition “…if the procedure adopted so constrains the opportunity of the person to propound his or her case… as to amount to a ‘practical injustice’”.
The applicant submits that procedural fairness required an oral hearing in the event either that the Assessor did not accept the applicant’s credibility in relation to the family harm/relocation Dakar claim, or that the Assessor misconceived and failed to address the claim. An oral hearing would also have cured the practical injustice to the applicant resulting from the impasse between the Assessor and the applicant’s advisor. In each scenario the applicant was denied an opportunity to propound his case by either defending his credibility or clarifying the claim to the Assessor.
It is not entirely clear from the Assessor’s finding at CB 232 in relation to the family harm/relocation Dakar claim whether the Assessor was finding against the applicant’s credibility or whether he had misconceived the claim. The applicant submits that it was either one, or the other:
Moreover, no credible information was located which suggests that the claimant would be denied protection from the Senegalese authorities, or that he would be unable to safely relocate the Dakar.
The Assessor characterised the applicant’s claim of fear of harm on relocation in the ITOA at CB 219 as if his only claim of fear of harm on relocation was from the Mouride Brotherhood:
The claimant stated that he would not be safe anywhere in Senegal because the Brotherhood has members everywhere in Senegal. Also he has relatives in Dakar, [his home town], Kaula and Giorbel who would see him and report him to the Brotherhood.
This summary of the claim appears to have been taken from [7] of the applicant’s statutory declaration of 21 October 2010[40]:
If I returned to Senegal I would [not] be safe in any town or city because:
a)my own large family and relatives live in other parts of Senegal (some in Dakar, [my home town], [and elsewhere] and would hear about my return and see me and would tell the brotherhood and would have me killed (in … in 2006 the family saw me and beat me up)
[40] at CB 122
Elsewhere in the same statutory declaration at [7(c)] and [7(d)] the applicant reiterated his fear of harm from his family upon relocation, in addition to his other fear of harm from the Mouride Brotherhood.
In its previous review of the applicant’s refugee claims, the Tribunal had questioned the applicant about why he could not return to a different part of Senegal and the applicant’s response was that because his relatives moved around it was not safe for him anywhere[41].
[41] at Tribunal CB 87 at [125]-[126]
In his statutory declaration of 10 April 2011 the applicant repeated that his fear of his family upon relocation was in addition to his fear of the Mouride Brotherhood[42].
[42] CB 173 at [4]
The family harm/relocation Dakar claim was recognised by the United Nations Human Rights Committee at 7.2, and by the State party before it at 4.8 (xv).
The asserted misconception of the family harm/relocation Dakar claim by the Assessor at CB 219 may have had its genesis in the invitation to comment letter of 20 May 2016 by the Assessor’s immediate predecessor at CB 200 which the Assessor repeated verbatim at CB 221:
It appears that the claimant could relocate to another area of Senegal, such as Dakar, to avoid any harm feared from his family in [his home town]. Dakar is 118 kilometres from [his home town]. It appears unlikely he would encounter his family in Dakar. There is no indication that he has tried to relocate to another part of Senegal, other than Kaolack.
The applicant submits that this misunderstands his claim of fear of harm from his family as limited to his home town. According to the letter, the unlikelihood of an encounter with his family in Dakar is due to the distance between his home town and Dakar. The letter does not recognise the applicant’s claim that he had family living in Dakar.
It may be accepted that, if the claimed harm in Dakar was only from the Mouride Brotherhood and that the applicant did not claim to fear harm from his family outside his home town, then the Assessor could have addressed the claim by reference only to country information and without an oral hearing. However, this was not the applicant’s claim.
To any argument that the procedural fairness obligations in respect of the family harm/relocation Dakar claim were discharged by the letter of 20 May 2016, the applicant submits that the letter not only misunderstood the claim, it did not put his credibility squarely in issue, as it should have in circumstances where the applicant’s credibility in relation to his fear of his family was affirmed by the Tribunal and had never otherwise been put in issue. As noted by the State party to the United Nations Human Rights Committee at 4.8 (xv), the Tribunal made no explicit findings in respect to the applicant’s claims that he would be not safe anywhere in Senegal because of the presence of a large family, which would find him wherever he went.
As to any argument that the applicant’s advisor was responsible to correct the misunderstanding the applicant submits that it was not entirely clear whether the claim was misunderstood or whether the applicant’s credibility was in issue. The applicant submits that, in any event, the Assessor more than the advisor knew the advisor’s position would become contrary to interests of the applicant, which the advisor quite reasonably thought he was vigorously pursuing.
Ground 4
The applicant submits that the Assessor’s conduct of the ITOA assessment gave rise to a reasonable apprehension of bias, in particular because of some of the reasons the Assessor gave for refusing the advisor’s requests.
In Hot Holdings Pty Ltd v Creasy[43] McHugh J held:
Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively. (footnote omitted)
[43] [2002] HCA 51; (2002) 210 CLR 438 at [68]
In NADH v Minister for Immigration[44], the Full Federal Court said at [20]:
At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition.
[44] [2004] FCAFC 328; (2004) 214 ALR 264
A reasonable apprehension of the possibility of predisposition is said to be open from some of the reasons the Assessor gave for refusing the advisor’s requests[45]:
Instead of responding to the substantive issues, you have asserted that I am biased, unqualified, and do not understand the importance of this ITOA to [the applicant]. It is therefore difficult for me to accept that allowing you a further extension of time to respond would be productive.
[45] CB 209
At CB 212 (as related by the applicant’s advisor):
You advised that the reply date was extended to 15 July 2016 and you stated that too much time had already been spent on [the applicant’s] case and the objective country information is all against him.
It is significant that the letter of 20 May 2016 raised a crucial matter which could not be settled by country information, ie the likelihood of an encounter with the applicant’s family in Dakar[46]. The draft statutory declaration and submissions prepared by the advisor address this issue[47]. The lack of an oral hearing to address the family harm/relocation Dakar claim is also relevant to the apprehension of a predisposition.
[46] CB 200
[47] see affidavit of Mr Weingarth made 28 October 2016 at pages 7, 18 and 33
In SZRUI v Minister for Immigration[48] Allsop CJ said of the assessment of apprehended bias by an administrative decision maker:
Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power. …A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief…
[48] [2013] FCAFC 80 at [3]-[4]
Part of the context of this matter, and relevant to an assessment of the behaviour of the Assessor in responding to the applicant’s advisor, is that at the time the High Court had not yet handed down its decision in SZSSJ[49] and the decision of the Full Court in Minister for Immigration v SZSSJ[50] was still good law. Further, there had been then very recent and significant legislative changes to the Migration Act relating to the recognition of refugees, including s.5J(1)(c) of the Migration Act. The advisor’s own description of himself as a retired senior aged solicitor with limited resources[51] is also relevant, as is the absence of prejudice to the respondents in acceding to the advisor’s requests. The applicant submits that the delay in the ITOA process was not the fault of the advisor – there had been an eight month gap between the initiation of the process in August 2015 and the Minister’s Department’s letter of 20 May 2016.
[49] the decision was handed down on 27 July 2016
[50] [2015] FCAFC 125; (2015) 234 FCR 1
[51] CB 203
Ground 5
This ground arises from the respondents’ inability to locate the entire document annexed to the affidavit of Mr Weingarth made on 31 October 2016.
Despite email confirmation of receipt of “your submissions of 4 September 2015” (sic) at CB 205, it is not clear the submissions dated 14 September 2015 annexed to Mr Weingarth’s affidavit are the same as the “prior submissions” which the ITOA refers to at CB 222 and 223. The documents the Assessor there refers to were already provided in support of previous requests for Ministerial intervention, as well as being annexures of the submissions of 14 September 2015.
Minister’s submissions
The Assessor did not misunderstand the applicant’s claims
The Minister submits that, contrary to what the applicant contends, the Assessor was aware that the applicant had claimed that he would not be safe anywhere in Senegal because of his family. This is said to be apparent from the Assessor’s statement[52]:
The claimant stated that he would not be safe anywhere in Senegal because the Brotherhood has members everywhere in Senegal. Also, he has relatives in Dakar, [his home town], [and elsewhere] who would see him and report him to the Brotherhood.
[52] at CB 219
Earlier, in his procedural fairness letter, the Assessor invited the applicant to respond to the following:
It appears that you could relocate to another area of Senegal, such as Dakar, to avoid any harm feared from your family in [your home town]. Dakar is 188 km from [your home town]. It appears unlikely you would encounter your family in Dakar. There is no indication that you have tried to relocate to another part of Senegal, other than Kaolock.
The Assessor made a factual finding that was consistent with what was said in the procedural fairness letter[53]. In other words, the Assessor considered the applicant’s claims that he faced a risk of harm from his family anywhere in Senegal but rejected it.
[53] CB 221
An oral hearing was not necessary
The applicant’s claim that an oral hearing was required was premised on the assumption that an oral hearing would have clarified for the Assessor the nature of the applicant’s claims. The Minister submits that, for the reasons set out above, the Assessor did not misunderstand the applicant’s claims. Accordingly, it is unnecessary for the Court to consider whether the lack of an oral hearing meant that the applicant was denied procedural fairness.
Be that as it may, the Minister makes a number of brief observations about the contention that procedural fairness would require an oral hearing in circumstances such as the present.
The High Court has held that what the rules of procedural fairness require in any given case is to be assessed by reference to what is “fair” in all the circumstances, and that “fairness is not an abstract concept – ‘[i]t is essentially practical’”[54]. The content of a decision-maker’s procedural fairness obligations “depends on the circumstances of the case and they will include … the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting”[55]. Recently, in Minister for Immigration v SZSSJ at [82], the High Court said that:
compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”.
[54] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ
[55] Kioa v West (1985) 159 CLR 550 at 584-585
The question whether procedural fairness might require a hearing at which evidence would be given orally before an administrative decision is made is “not susceptible of a single answer of universal application”[56]. The question has arisen in a variety of contexts and the answer almost invariably lies in the terms of the applicable statute and the circumstances of the particular case[57]. What the cases reveal is that courts are more inclined to require an oral hearing where the decision-maker is required to resolve conflicting factual accounts or is required to assess the credibility of the persons giving evidence[58], particularly if the assessment of credibility involves consideration of a person’s demeanour[59].
[56] Ashmore v Commissioner for Superannuation[2000] FCA 1816 at [46]; WZARH v Minister for Immigration (2014) 230 FCR 130 137 at [12]
[57] see Chen v Minister for Immigration (1994) 48 FCR 591 at 597; NAHF v Minister for Immigration (2003) 128 FCR 359 at 365 [33]; Ashmore [2000] FCA 1816 at [58] and the cases cited therein. See also Aronson and Groves, Judicial Review of Administrative Action, (Lawbook, 5th edition, 2013) at [8.290]
[58] See, generally, Aronson and Groves, Judicial Review of Administrative Action, (Lawbook, 5th edition, 2013) at [8.290]
[59] As Moore J said in Ashmore v Commissioner for Superannuation [2000] FCA 1816 at [59] it “cannot be doubted that a person who must ascertain what the facts are can often derive an advantage from seeing a person give an account of the facts where credibility is in issue.” To similar effect are the comments of Gleeson CJ said in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4].
The Minister submits that, in the present case, the applicant’s claims before the Assessor failed, not because of any view adopted by the Assessor in relation to the applicant’s credibility, but rather based on the application of country information. In any event, it is not correct to say[60] that procedural fairness required that the Assessor put to the applicant any doubts that Assessor had about the applicant’s credibility. As the High Court said in SZBEL v Minister for Immigration[61]:
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
[60] c.f. the applicant’s submissions at [44], [48], [59]
[61] (2006) 228 CLR 152 at 166 [48]
The proposition that the applicant was required to be afforded an oral hearing is also said to be contrary to authority. In MZYPY v Minister for Immigration & Anor[62], this Court was required to consider a submission that an applicant was entitled to an oral hearing as part of an assessment of whether the applicant met the Minister’s Post Review Protection Claims (PRPC) guidelines (this process is roughly equivalent to the process undertaken by the Assessor in the present case)[63]. This Court rejected the submission, concluding as follows:
The applicant, in his written submissions, gives no indication as to why the rules of procedural fairness, which are directed to the “avoidance of practical injustice”, required the PRPC officer to conduct an oral hearing before the making of the PRPC Assessment. Critically, the applicant does not identify what it is about the PRPC assessment process (which is directed to informing the Minister as to whether he should exercise his non-compellable powers under s.46A(2) after the RSA and IMR processes have been finalised) that leads to the conclusion that PRPC assessments can only be made following an oral hearing. Furthermore, the applicant’s bare assertion that an oral hearing was required overlooks the fact that by the stage at which PRPC assessments are made, persons such as the applicant will have already had the opportunity to advance their claims (both orally and in writing) through the RSA and IMR processes, where the factual issues relevant to a complementary protection claim will often substantially overlap with those arising under the Refugees Convention.
The processes in issue here, while serving a function under the Migration Act, are of a less formal nature. This is significant where the Migration Act does not compel the Minister or his delegates to give oral hearings before deciding whether or not to grant visas (s.54(3)). It would be curious if persons making recommendations were bound to give oral hearings, when delegates are not bound to do so (even when there is no right of merits review).
Further, the applicant did not request an oral hearing, and it may be noted that none of the Court in SZQRB suggested, in a comparable fact situation, that an oral hearing was required.
[62] [2013] FCCA 810
[63] In MZYPY at [36], the Federal Circuit Court described the PRPC process as follows:
The PRPC Guidelines, developed by the Minister, are designed to give guidance to officers of the Minister’s Department as to which cases involving offshore entry persons should be referred to the Minister for consideration as to whether he should lift the statutory bar in s.46A(2) of the Migration Act. In particular, the PRPC Guidelines are intended to provide guidance for assessing whether additional information provided to the Minister’s Department, after the RSA and IMR processes have been finalised, should be referred to the Minister for his consideration. The PRPC Guidelines also provide guidance in relation to offshore entry persons who have received a negative assessment during the RSA and IMR processes but who have not yet had an ITOA . Further, the PRPC Guidelines make it clear that it is not intended that the PRPC assessment process will involve a wholesale reassessment of whether the offshore entry person is a person in respect of whom Australia owes protection obligations. The PRPC assessment process has a rather narrower focus, and is directed towards a consideration of whether the particular offshore entry person has presented new claims or evidence that would suggest he would satisfy the criteria for the grant of a protection visa under s.36(2) of the Migration Act (were he or she permitted to make an application for a protection).
The Minister contends that the observations in MZYPY apply mutatis mutandis in the present case. The applicant’s “bare assertion” that he was entitled to an oral hearing is said to overlook the fact that by the stage at which the ITOA had been made, the applicant had already had the opportunity to advance his claims before the Tribunal. The process that led to the ITOA is of a less formal nature than in the Tribunal and is even less formal than decisions of delegates of the Minister (which lead to the grant of a visa) which may be made in the absence of an oral hearing[64].
[64] Migration Act, s.54(3)
Apprehended bias
In his written submissions, the applicant refers to two emails[65] that he says gives rise to a reasonable apprehension of bias.
The email at CB 209
[65] CB 209 and CB 212
In this email, the Assessor simply notes the fact that accusations of bias and accusations as to the Assessor’s qualifications had been levelled against the Assessor and that in that context it would be difficult to see the utility in allowing the applicant further time to provide documents. This statement does not give rise to an apprehension of bias, particularly given that the requested extension was in fact granted.
The email at CB 212
In the email at CB 212, which is dated 18 July 2016, the applicant’s solicitor refers to a conversation he had with the Assessor on 29 July 2016. In this email, the applicant’s solicitor said that “[y]ou advised that reply date was extended to 15 July 2016 and that you stated too much time has already been spent on [the applicant’s] case and the objective country information is all against him”.
The Minister’s submissions make two points about this email. First, it is not a contemporaneous record, it having been sent approximately three weeks after the alleged conversation. Secondly, and in any event, this email cannot be admitted to prove what the Assessor may or may not have said and is not probative of whether an apprehension of bias has arisen.
The applicant also contends that “the lack of an oral hearing to address the family harm/relocation [to] Dakar claim is also relevant to apprehension of a disposition”. The Minister responds that there is no basis to the contention given there is no “logical connection between the matter and the feared deviation from the course of deciding the case on its merits”[66].
[66] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 445 [63]
Allegations of apprehended bias are serious allegations. Such allegations must be distinctly made and clearly proven[67]. The Minister submits that this has not occurred in the present case.
[67] Jia Legeng (2001) 205 CLR 507 at 531 [69]
Overlooking relevant material
The Minister submits that the applicant does not identify with any precision the material that was allegedly not taken into account and the significance of his omission. The absence of such identification is important given that it has long been accepted that a failure to consider an item of evidence does not necessarily lead to the conclusion that the decision-maker committed legal error. Further, the approach in the decided cases[68] emphasises the need for the Court, when considering whether the failure to take into account an item of evidence constitutes legal error, to undertake a qualitative assessment of the nature of evidentiary material and the place of that material in the assessment of the applicant’s claim.
[68] SZRKT (2013) 212 FCR 99; MZYTS [2013] FCAFC 114; SZSRS [2014] FCAFC 16
No attempt has been made by the applicant to identify how the material that is annexed to the submission fits within the applicant’s claims. In such circumstances, the Minister submits that this ground of review cannot be made good.
Resolution
Grounds 2 and 3 – was the ITOA procedurally unfair?
The applicant contends that he was denied procedural fairness given that the Assessor misunderstood the applicant’s claims to fear harm arising from his family, who were located in various parts of Senegal, and not just in the applicant’s home town. The applicant goes on to contend that this denial of procedural fairness was exacerbated by the fact that the applicant was “denied” an oral hearing, at which he could have made clear the nature of his claims.
I accept that procedural unfairness in these grounds has been established. In his statement of reasons under the heading Analysis[69] the Assessor agreed with the decision of the Tribunal made previously concerning relocation. He accepted that it was plausible that the applicant was threatened and harmed by his conservative Muslim family for converting to Christianity. He accepted that the applicant may face a real chance of being harmed or killed by his family members if he returned to his home area in Senegal. The Assessor then went on to find that the Mouride Brotherhood was non violent and did not constitute a threat to the applicant either in his home area or elsewhere in Senegal. It followed that the only threat to the applicant came from his family.
[69] CB 232
The Assessor found the applicant could safely relocate to Dakar. This was on the basis that it would be “unlikely” that he would encounter his family in Dakar[70] which is “188 kilometres” from his home town. I draw the inference that the Assessor reasoned that the applicant could put sufficient distance between him and his family in order to find safety in Dakar. This, however, overlooks the applicant’s claim that he has a large extended family who would apparently be united in their hostility towards him. There was no consideration by the Assessor of whether the applicant faced a real risk of harm at the hands of family members in Dakar. While it is true, as the Minister submits, that the Assessor accurately recited the applicant’s claim of having relatives in Dakar at CB 219, that does not overcome the problem of a lack of consideration of that aspect of the applicant’s claims thereafter. It is also true that the applicant was sent a “natural justice” letter dated 20 May 2016 which says relevantly[71]:
It appears that you could relocate to another area of Senegal, such as Dakar, to avoid any harmed feared from your family in [your home town]. Dakar is 188 kilometres from [your home town]. It appears unlikely that you would encounter your family in Dakar. There is no indication that you have tried to relocate to another part of Senegal, other than Kaolack.
[70] CB 221
[71] CB 200
Mr Weingarth responded to that letter saying, in effect, that he was unable to meaningfully respond to it until he had received an explanation from the Minister’s Department of what provisions of the Migration Act and principles relating thereto were in issue. The communications back and forth between the Minister’s Department and Mr Weingarth about further time to respond tended to muddy the water and in my view distracted from the opportunity afforded by the “natural justice” letter.
The lack of consideration of the integer of the applicant’s claim concerning his family was compounded by the absence of an oral hearing. That hearing would have provided an opportunity for the applicant and Mr Weingarth to properly explain to the Assessor his concerns about family members in Dakar. Further, an oral hearing would have been an opportunity for the Assessor to explain the “concepts relevant to assessing the non refoulement obligations arising under” the Refugees Convention, the Convention Against Torture and the ICCPR and the applicable provisions of the Migration Act. These had been referred to rather delphically in the Minister’s Department’s letter to the applicant dated 4 August 2015 at the outset of the ITOA. Mr Weingarth had been pressing the Minister’s Department to explain what it meant ever since then without success.
The deficiencies in the process were compounded by the fact that there was a change in assessor partway through the process. Mr Weingarth’s frustration in attempting to obtain an explanation from the Minister’s Department of the relevant statutory provisions and principles resulted in him accusing the replacement assessor of bias which led to the Assessor doubting what useful purpose would be served in providing more time for the applicant to respond to the “natural justice” letter[72].
[72] CB 209
In all of these circumstances in my opinion, an assessment on the papers was wholly inadequate and procedurally unfair. In the absence of an oral hearing, the Assessor was not in a proper position to come to grips with the detail of the applicant’s claim concerning his family and the impact on the relocation option, and nor was he in a position to come to grips with the significance of the United Nations Human Rights Committee assessment concerning relocation[73]. This case can be distinguished on its facts from MZYPY. Among other things the applicant did not have an opportunity to advance a claim for complementary protection before the Tribunal. There had been no oral hearing on that claim at all. I find that these grounds of review have been established.
[73] see 7.4 of the UN Committee report
Grounds 4 and 5 – bias and a failure to take into account relevant material
It is not strictly necessary to deal with the remaining grounds. For completeness, I find that the allegation of bias has not been established.
In this ground of review, the applicant contends that a reasonable apprehension of bias had arisen given the applicant’s advisor was refused extensions of time in which to provide documents. The applicant makes this allegation notwithstanding the fact that the applicant was granted until 15 July 2016 to respond to a procedural fairness letter that was sent on 20 May 2016.
I accept the Minister’s submissions concerning the principles to be applied. The onus of demonstrating bias involving prejudgment lies upon an applicant for judicial review and it is a heavy onus. In order to succeed, a judicial review applicant must demonstrate that the decision-maker “had a closed mind to the issues raised and was not open to persuasion by the applicant's case”[74].
[74] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [36]
The test to be applied when determining whether an apprehension of bias has arisen is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide[75]. The hypothetical reasonable observer, who is taken to be properly informed as to the nature of the proceedings and the matters in issue, is postulated “in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”[76].
[75] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]
[76] Johnson v Johnson (2000) 201 CLR 488 at 493 [12]
While the “double might” test stated in Ebner has been regarded as relatively undemanding, it remains the case that an allegation of bias must be distinctly made and clearly proven[77].
[77] Jia Legeng (2001) 205 CLR 507 at 531 [69]
The apprehension of bias principle requires two distinct inquiries. Thus[78]:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits …
[78] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 445 [63] per Gummow ACJ, Hayne, Crennan and Bell JJ; Isbester v Knox City Council (2015) 89 ALJR 609 at 613–614 [21] per Kiefel, Bell, Keane and Nettle JJ, see also at 619 [59] per Gageler J
I have considered Mr Weingarth’s affidavit evidence and his oral evidence under cross-examination. I have also considered his handwritten notes of communications between him and the Minister’s Department. That evidence plainly establishes a subjective opinion by Mr Weingarth that the Assessor might not bring an impartial mind to bear to the ITOA. That, however, is not the test. Mr Weingarth is not an objective observer. He was a partisan player in the process. The totality of the evidence establishes in my view that the Assessor was, in somewhat difficult circumstances, in a matter with a long and complex history, attempting to deal with the ITOA in a professional manner. The process was defective, as I have found. I am, however, not persuaded that a fair minded objective observer, aware of all of the relevant facts and circumstances, might reasonably apprehend that the Assessor might not have brought an unprejudiced mind to bear upon the ITOA. I reject the ground of bias.
In the final ground of review, the applicant contends that the Assessor failed to take into account material that was annexed to the submission that was provided by the applicant’s solicitor on 14 September 2015. As to this remaining ground, the Minister concedes that there is no express reference in the ITOA decision to Mr Weingarth’s submissions dated 4 September 2015 and its annexures numbered 4, 10, 11 and 13. The Minister contends, nevertheless, that that material was not relevant to the ITOA outcome. That is debatable. What can be said is that an oral hearing would have provided an opportunity for the applicant and his representative to draw expressly to the Assessor’s attention any particular submissions or supporting material they wished but that opportunity was not provided. The Assessor’s silence in relation to the material supports the contention that an oral hearing should have been provided.
Conclusion
I conclude that the applicant has established that the ITOA is affected by reviewable legal error in relation to the denial of an oral hearing and in relation to the relocation assessment. I conclude that the ITOA was not made in accordance with law and the applicant should receive the declaratory and injunctive relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 1 February 2017
Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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