CNN17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 140
Federal Circuit and Family Court of Australia
(DIVISION 2)
CNN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 140
File number(s): SYG 2717 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 3 March 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal - protection visa – credibility issues identified by the Tribunal - whether Tribunal asked misleading questions – whether Tribunal considered irrelevant facts – whether the Tribunal was biased – no jurisdictional error Legislation: Migration Act 1958 (Cth), ss 5J, 36 Cases cited: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FCAFC 41
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 15 February 2023 Place: Parramatta Applicant: In Person Solicitors for the Respondents: Ms E Bennett of Minter Ellison ORDERS
SYG 2717 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
3 March 2023
THE COURT ORDERS THAT:
1.The application filed on 25 September 2018 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
INTRODUCTION
The applicant is a citizen of Malaysia. He arrived in Australia on 13 April 2016. On 26 August 2016, the applicant applied for a temporary protection visa (“TPV”).
In support of his TPV application, the applicant included a statement outlining the basis of his claimed fear of harm in Malaysia. The applicant claimed to have entered into an agreement with a corrupt forestry official whereby he was encouraged to invest RM120,000 into a logging project. Not having sufficient funds to cover that investment, he claims that he had to take out a loan, with those loan funds being paid directly to the forestry official. The applicant claims that the project fell through and he was threatened and assaulted by those persons who loaned him the money.
On 23 November 2016, a delegate of the Minister for Immigration (“delegate”) refused to grant the applicant a TPV (court book (“CB”) 89 to 92).
On 16 December 2016, the applicant applied to the Administrative Appeals Tribunal (“Tribunal”) for review of the delegate’s decision (CB 116 to 117).
On 15 May 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant a TPV (“the earlier Tribunal decision”) (CB 108 to 114).
On 9 June 2017, the applicant lodged an application for judicial review of the earlier Tribunal decision, to the then Federal Circuit Court of Australia (FCCA).
By order made by consent of the FCCA on 5 February 2018 (CB 149 to 150), the earlier Tribunal decision was set aside and the application was remitted back to the Tribunal for reconsideration.
On 22 August 2018, the applicant appeared before the Tribunal on the remitted application (CB 168). The Tribunal was assisted by an interpreter in the Mandarin language.
On 24 August 2018 the Tribunal made its decision affirming the delegate’s decision not to grant the applicant a TPV (CB 176 to 185).
The applicant now seeks judicial review of the decision of the Tribunal dated 24 August 2018 (“the decision”).
The Tribunal decision
At [1] to [5] of the decision (CB 177), the Tribunal sets out the background of the matter.
At [4] (CB 177), the Tribunal explained the circumstances of the consent orders made by the FCCA on 5 February 2018 with respect to the earlier Tribunal decision. Whilst nothing in the present review turns on those earlier proceedings, for completeness, it is worth repeating what the Tribunal noted about those circumstances. The applicant did not appear at the Tribunal on the day on which, and at the time and place at which, he was scheduled to appear. The Tribunal made a decision on review without taking further action to allow or enable the applicant to appear before it. The Tribunal stated that it would have sent the applicant two SMS reminders about the hearing if the applicant had provided a mobile telephone number, but that no mobile telephone number had been provided. However, the applicant had provided a mobile telephone number on his application for review. The FCCA held that the Tribunal, by its earlier decision, acted unreasonably in exercising the discretion conferred upon it regarding how to deal with failure of the applicant to appear.
The Tribunal, at [6] to [11] of its decision (CB 177 to 178), properly instructed itself as to the relevant criteria for the grant of a TPV and the relevant mandatory considerations in undertaking the task. The Tribunal had before it DFAT Country Report - Malaysia, 19 July 2016.
At [12] of the decision (CB 178-179), in its consideration of the applicant’s claims and evidence, the Tribunal identifies the issue in the case as the credibility of the applicant and whether he fulfils the criteria for protection. The Tribunal records its conclusion that the decision under review should be affirmed.
At [13] and [14] of the decision (CB 178), the Tribunal provides a background to the applicant’s migration history and records some subjective matters with respect to the applicant’s personal circumstances.
In [15] of the decision (CB 178), the Tribunal repeats in full the statement the applicant made in his TPV application that outlines the basis of the applicant’s claimed fear of harm in Malaysia from persons to whom he claims he owes money. That statement is reproduced below anonymised appropriately:
My case takes place in early June 2015, a friend introduced me to know [T],[1] he work in [named location] state government in the management of forest development and he is one of the official, he said he had way and connection to get logging licenses from government department and [T]'s introduced me to a lot of knowledge about the logging and timber industry.
In one weeks of his recognition, he brought me and few guys that who are interested in logging industry [T] bought us together to the relevant government departments and logging side for know the whole operation, in fact, the first day I met him there is doubt after observation I slowly increased trust on this person, because he is really well aware of this line. After a week of meetings we have agreed with each other in a nearby forest [named place] development.
Time to early July, [T] said that each of us need to pay out as RM120,000 to set up a company to apply for logging licenses, tools, and the cost of hiring workers, and so on. But I only have about RM60,000 so I claim to be a relatively small shareholders but he refused, he said that if I really could not get those amount he have to find someone else. Then he said to me, he had a friend who work in [named government agency] in a high-position, where l can borrow money, such as through him will be able to borrow money. In this case I agreed.
Procedures and processes to borrow money is very simple and fast, but the borrowed money will directly go to [T], because everything quickly implement so did not care too much about these details.
Until November, this is our day was scheduled to start logging, [T] said that the government suddenly changed the forest become reserve zone, then we have to wait for some time to give us choose a suitable place.
Until December, [T] suddenly disappeared, and I have to go for a police report, but there is no news, but some people have found me that I had to borrow money from them, the amount was RM78,000 and they warned me If I fail to settle in a week I will trouble. That reminds me I have go for the [named government agency] loans and turned out to be a hoax.
A week after that is December, when I was ready to leave [named town] they found me and hit me there took my necklace and ring, in the chaos I ran away. February and March 2016 I was hiding in Thailand, after around 1 month I gone back to [named town] again they found me again, this time not only beaten me badly thus shave my hair with knife. This time I went to the police station to make report but then do not have any news, one of the officers told me that pay back the money or leave the country because there are high rank of government officials behind those [loan] shark.
After not much thinking and I leaved the country and arrived to Australia.
[1] name has been anonymised
At [16] and [17] of the decision (CB 179), the Tribunal observed the applicable law as it stood at August 2018 with respect to both how the Tribunal is to undertake the task of assessing if the applicant has satisfied all of the statutory elements and also how the Tribunal is to consider credibility of the applicant.
From [20] to [33] of the decision (CB 180 to 181) the Tribunal identified six credibility issues it had with the applicant’s claims and identified the bases for those credibility issues. I will deal with them in turn.
Firstly, at [20] of the decision (CB 180), the Tribunal found that the applicant had been inconsistent as to whether he was investing in the logging project alone or together with others. In making that finding, the Tribunal referred to the applicant’s written claim which indicated that he and a few guys were involved in the discussions and that they were each required to invest money in the project. The decision records that at the Tribunal hearing, the applicant indicated that he was the only person involved in the discussions and the only investor in the project. The decision records that the applicant confirmed this in the hearing on multiple occasions and when the inconsistency was put to him he said that maybe there was some other individuals involved but that he had no idea. The Tribunal considered that this inconsistency is not an inconsistency of insignificant detail concerning the investment, and as such, was undermining of the applicant’s credibility.
Secondly, the Tribunal found that the applicant was inconsistent with respect to his knowledge of the background of the person said to work in the state government in the management of forest development (“T”). In his written claim the applicant stated that T was a government official, yet in the hearing the decision records that the applicant was unable to tell the Tribunal anything about T’s background, including his job. The decision notes that in response to the Tribunal putting to the applicant his failure to have knowledge of T’s job compared to his written claim, the applicant indicated that it had been a long time.
Thirdly, at [24] of the decision (CB 180), the Tribunal found that the applicant had not provided consistent evidence concerning the details of the loan provided to him. In making this finding, the Tribunal referred to the applicant’s written claim where he said the loan was facilitated by a friend who worked in an agency of the Malaysian Government. At the Tribunal hearing, the decision records that the applicant indicated that the money was borrowed by someone known to the government official whom the applicant had no knowledge of and no dealings with. When this inconsistency was put to the applicant in the hearing, it is recorded in the decision that the applicant said that he had forgotten.
Fourthly, at [26] of the decision (CB 180), the Tribunal recorded that the applicant was not able to provide any details as to the terms of the loan of RM60,000. The decision records that when asked in the hearing as to the terms of the loan, such as repayment, the applicant was not able to provide a meaningful response. The Tribunal was not satisfied that if the applicant had borrowed RM60,000, either from a proper institution or loan shark, he would not be clear at least as to what were the broad terms of the loan, particularly in relation to payment. The Tribunal was not satisfied that the applicant borrowed money from either a loan shark or an authorised lender.
Fifthly, at [28] of the decision (CB 181), the Tribunal records that the applicant has not provided, and says that there has never existed, any documents relating to the loan or the logging deal. The Tribunal considered this to be implausible. The decision states that the applicant confirmed at the hearing on multiple occasions that there had never been any documents relating to the loan or the logging arrangement. The decision records that the applicant said perhaps he forgot to insist on these or that he was too busy to require them. The Tribunal was not persuaded that the applicant would enter into the arrangement for any investment of RM120,000 without documentation or that there would not be some documentation evidencing such an arrangement, even if it was facilitated through a loan shark.
Sixthly, at [29] of the decision (CB 181), the Tribunal found that the applicant had not been consistent in terms of his employment history. In making such finding, the Tribunal referred to the application form for the TPV where the applicant indicated that he worked for a tyre autocare company and ceased this employment in October 2014 with no employment after this date. The decision reports that at the Tribunal hearing the applicant indicated that he worked for this company right up until coming to Australia in April 2016. The decision records that in response to this inconsistency, the applicant indicated that perhaps he had made a mistake in his application form. The Tribunal noted at [30] of the decision (CB 181), that whilst this inconsistency was on a matter tangential to the applicant’s claims for protection, it suggests that the applicant had not been candid as to his overall circumstances.
At [31] and [32] of the decision (CB 181), after considering the six credibility concerns cumulatively, the Tribunal found that the applicant had not been a truthful or credible witness and as such, were not satisfied as to any of the substantive claims by the applicant.
The Tribunal was not satisfied that the applicant invested in the logging arrangement on his own or with others or that he borrowed money from either a loan shark or an authorised lender for this purpose. The Tribunal was not satisfied that the applicant suffered any difficulties from individuals from whom he borrowed money and the Tribunal was not satisfied that the applicant reported these matters to the police. The Tribunal was not satisfied that there are individuals who loaned money to the applicant that have any desire to harm due to non‑repayment.
At [33] (CB 181), the Tribunal records that given these findings, it was not satisfied that the applicant faced a real chance of serious or significant harm for any of reasons claimed.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a refugee criterion reason set out in s 5J(1) of the MigrationAct 1958 (Cth) (the Act). The Tribunal found no substantial ground to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a risk that he would suffer significant harm.
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36 (2)(a) of the Act and concluded that the applicant did not meet the refugee criteria under s 36(2)(a) of the Act. In respect of the alternative criterion, the Tribunal considered s 36(2)(aa) of the Act, and was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.
At [38] (CB 182), the Tribunal affirmed the delegate’s decision not to grant the applicant a TPV.
PROCEEDINGS IN THIS COURT
On 25 September 2018, the applicant commenced these proceedings. The applicant filed an affidavit with the application attaching the decision record of the Tribunal dated 24 August 2018. The grounds of the application are reproduced below verbatim:
Tribunal made Jurisdictional errors.
1. Tribunal asking me misleading questions.
2. Tribunal considered irrelevant facts.
3. Tribunal considered my case with bias.
The affidavit of the applicant contains three paragraphs reproduced below verbatim:
1. I was cheated to borrow money to do business, which turned out to be a hoax.
2. I was beaten because I did not repay money.
3. I left Malaysia because I did not get protection by police.
On 18 October 2018, a Registrar made orders by consent providing for the progress of the matter, including making orders for the applicant to file and serve any affidavit containing additional evidence relied upon. On 30 November 2022, a Registrar made orders extending the time for the applicant to the file and serve any affidavit and additional evidence and any amended application. The Court noted that on this occasion the applicant appeared via telephone, as did a representative for the first respondent. The Court noted that the applicant confirmed that he had received a paper copy of the court book.
Orders were made in chambers on 14 December 2022 for the matter to be set down at 2.00pm on Friday, 5 February 2023. Orders were made for the applicant to file and serve written submissions of no more than 10 pages 14 days prior to the hearing. The first respondent was ordered to file and serve written submissions of no more than 10 pages 7 days prior to the hearing.
When the matter came before me, there was no appearance by the applicant. The court officer called the matter three times outside of the courtroom. Just as the proceedings commenced, the applicant entered the courtroom. The applicant attended unrepresented. The applicant was assisted by a Mandarin interpreter.
The applicant confirmed that the email address noted on the application remained his email address. The first respondent provided to the Court correspondence evidencing service on the applicant of the first respondent’s outline of submissions and list of authorities by way of the email address. The first respondent’s correspondence also confirmed the outline of submissions and list of authorities was also sent by post to two separate addresses in Campsie in New South Wales.
The applicant confirmed that he had received the email containing the first respondent’s submissions. He stated that he had not read the submissions as he did not understand English. He confirmed that the submissions had been read to him. The applicant confirmed that he had engaged a lawyer but that the lawyer would not be attending. The Court enquired of the applicant if he required the interpreter to read to him again the submissions from the first respondent. That opportunity was given to the applicant and the matter was stood down for approximately 15 minutes to allow the main portions of the first respondent’s submissions to be read to him.
When the matter resumed, the applicant was asked if there was anything he wanted to say. He made a short statement through the interpreter referring to the loan shark and his employment history. The applicant was provided with a pen and paper. The Court explained that it was undertaking a judicial review and not a merits review. The Court was satisfied that the applicant was able to properly participate in and follow the proceedings.
The applicant’s submissions
The applicant’s application contains no particularisation of the grounds of the application other than what is repeated at [31] above. The affidavit evidence of the applicant is confined to those paragraphs identified at [32] above, annexing the decision record of the Tribunal.
Orders were made on two separate occasions for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon. Orders were also made on three separate occasions for the applicant to file and serve written submissions.
On a review of the applicant’s application and affidavit material there is nothing that addresses any matters of jurisdictional error. While I make no criticism of the applicant, there are technical and legal flaws in the manner in which the grounds are expressed. Despite this, it is important to ensure that an applicant’s judicial review application is substantially considered by this Court so that any appeal to the Federal Court enables that Court to undertake its appellate functions accordingly. This Court will consider the applicant’s appeal grounds in turn.
The first respondent’s submissions
With respect to Ground 1, the first respondent noted that the applicant has not particularised what questions he claims were misleading or how they were misleading. The first respondent further noted that the applicant has not put any transcript evidence before the Court as to the questions he was asked at the hearing.
The first respondent submitted that there was no evidence that the Tribunal asked the applicant any misleading questions.
With respect to Ground 2, the first respondent noted that the applicant had not particularised what irrelevant facts the Tribunal considered or how that consideration was sufficient to amount to jurisdictional error. The first respondent stated that the decision record indicates that the Tribunal did ask the applicant questions about his employment history and considered discrepancies in his account of his employment history between the TPV and the applicant’s evidence at hearing.
At [29] of the Tribunal’s reasons (CB 181) where the Tribunal is referring to the sixth of the six credibility issues, the Tribunal asserts that the applicant has not been consistent in terms of his employment history. In this respect the Tribunal refers to the application form for the TPV where the applicant wrote that he worked for a tyre autocare company and ceased employment in October 2014 with no employment after this date. In the Tribunal’s decision, it contrasted this written evidence with the evidence given at the hearing where the applicant stated that he worked for this company right up until coming to Australia in April 2016. The Tribunal decision records that whilst this is an inconsistency and a matter tangential to the applicant’s protection claims, it suggests that the applicant has not been candid as to his overall circumstances.
With respect to the relevance of the applicant’s employment history, the first respondent points to the Tribunal’s recognition that the applicant’s employment history was tangential to the applicant’s protection claims and noted that the discrepancy between his written claim and oral evidence was one of several significant discrepancies that demonstrated that the applicant was not a truthful witness. The first respondent contends that the Tribunal did not place determinative weight on this concern alone. I accept that submission.
At [31] (CB 181) the Tribunal states that it considered these six credibility concern concerns cumulatively which caused the Tribunal to form the view that the applicant had not been a truthful or credible witness.
The applicant’s employment history formed a part of the background to the protection claims contained in his TPV application. On this basis, the first respondent contends therefore that the applicant’s employment history was not irrelevant to those claims as it formed part of them. The first respondent says that the Tribunal was entitled to consider discrepancies in that account. I agree with that submission.
The first respondent asserts that it was open to the Tribunal to ask questions more broadly about the applicant’s history in Malaysia and its assessment of the applicant’s credibility was not confined solely to the matters relating to the applicant’s protection claims. It is true that the decision records that the Tribunal’s assessment of the credibility of the applicant was not solely based upon the inconsistencies regarding the applicant’s employment history.
The first respondent contends that even if there was an error in the Tribunal asking the applicant questions about his employment history, that error did not amount to jurisdictional error as this was not material to the Tribunal’s adverse credit findings, given the large number of other adverse credit findings raised.
The first respondent notes that the Tribunal decision records that the credibility concerns were put to the applicant at the hearing, noting the inconsistencies between the claims in his application and the evidence he provided at the hearing. The first respondent observes that the decision record indicates that the applicant had an opportunity to respond to the inconsistencies. The first respondent contends that it was the applicant’s failure to explain the discrepancies put to the applicant at the Tribunal hearing that led the Tribunal to conclude that the applicant was not a credible witness and, further, that it was a cumulative effect of the discrepancies and inconsistencies that reflected upon the applicant’s claim in credibility.
The first respondent submits that there was a logical and probative basis for the adverse credibility finding and therefore open to the Tribunal to make that finding.
With respect to Ground 3, the first respondent contends that that ground must fail given the lack of particularisation and proof of actual bias on the part of the Tribunal. For completeness, the first respondent submits that if the applicant were suggesting an allegation of apprehended bias, then that allegation must fail as there is nothing capable of demonstrating an allegation of apprehended bias.
CONSIDERATION
Ground 1 – Tribunal asking me misleading questions
The applicant has not explained what he means when he asserts that the Tribunal asked him misleading questions. The first respondent says that the applicant has not particularised what questions he claims were misleading or how they were misleading. I accept that.
Without more information, it is very difficult for this Court to properly consider the applicant’s assertion that he was asked misleading questions. The applicant has not obtained the transcript of the hearing before the Tribunal so that it could be considered by him or by this Court.
As observed earlier in this judgment, the Tribunal formed the view that the applicant had not been a truthful or credible witness based upon the cumulative consideration of six credibility issues that the Tribunal identified.
In determining what the issues were in the case, the Tribunal properly identified the criteria the applicant must meet to be granted a TPV, considered the applicant’s statement attached to the application for the visa which outlined his claim for protection and then provided an opportunity for the applicant to be heard before the Tribunal on 22 August 2018. The applicant was provided the assistance of an interpreter in the Mandarin language (CB 177).
The Tribunal identified the issue in the case as the credibility of the applicant and whether, on accepted claims, he fulfils the criteria for protection (CB 178 at [12]). It is apparent from the decision that issues arose with respect to the applicant’s credibility when the applicant was questioned about the circumstances of his claim and, as a result, the Tribunal identified the six credibility issues with the applicant’s claims (CB 180 at [19]).
In respect of those six issues, the decision records that the Tribunal had regard to the applicant’s written claims contained in his TPV application and had regard to the evidence that he gave at the hearing under questioning. The Tribunal then recorded how it became concerned with the answers the applicant gave in the hearing, when compared to the evidence contained in the applicant’s written claims.
There is nothing to suggest that the subject matter of the content of the questions asked by the Tribunal of the applicant were misleading, or that he failed to understand the questions put to him. The questioning related to whether he alone was the only person investing in the logging project or whether others were involved; the background of the person that facilitated the loan; whether or not that person was a state government official; the details of the source of the money, whether it was borrowed from a Malaysian institution or an individual; the details as to the terms of the loan e.g. repayment; the existence of documents both with respect to the loan or the logging project and lastly, and tangentially, the applicant’s employment history leading up to the time that he came to Australia.
In my view, the subject matter of the content of the questions by the Tribunal, as recorded in the decision, were both relevant and necessary for the purposes of the Tribunal properly undertaking its task in assessing the applicant against the relevant criteria for the grant of a TPV.
I do not find that the Tribunal asked the applicant misleading questions and I dismiss Ground 1.
Ground 2 Tribunal - considered irrelevant facts
The applicant has not explained what he means when he asserts that the Tribunal considered irrelevant facts. The first respondent says the applicant has not particularised what irrelevant facts the Tribunal considered, or how that consideration was sufficient to amount to jurisdictional error. I accept that.
Without more information, again, it is very difficult for this Court to properly consider the applicant’s assertion that the Tribunal considered irrelevant facts. The applicant has not obtained the transcript of the hearing before the Tribunal so that it could be considered by him or by this Court.
If the applicant’s complaint is that the facts the Tribunal focused on when considering his application, and when questioning him at the hearing, were irrelevant to his application, I do not agree.
I repeat what I said above with respect to Ground 1. The areas of questioning by the Tribunal as recorded in the decision were both relevant and necessary for the purposes of the Tribunal properly undertaking its task in assessing the applicant against the relevant criteria for the grant of a TPV.
The applicant was questioned about his employment history and the fact that he gave an inconsistent response with respect to the history of his employment leading up to him coming to Australia, was one of the six credibility issues that the Tribunal had with the applicant’s claims (CB 181 at [29]). The Tribunal noted that this inconsistency was tangential to the applicant’s claim and suggested that the applicant had not been candid as to his overall circumstances (at [30]).
This inconsistency was not dispositive to the applicant’s claim but one of a number of issues that the Tribunal took into account. The decision records that the Tribunal considered the six credibility concerns cumulatively and caused it to have the view that the applicant was not a truthful or credible witness and as a result the Tribunal was not satisfied as to any substantive claims by the applicant (at [31]).
I do not find that the Tribunal considered irrelevant facts and I dismiss Ground 2.
Ground 3 – Tribunal considered my case with bias
The applicant has not explained why he says that the Tribunal considered his case with bias. As with his previous two grounds, it is very difficult for a court to properly consider the applicant’s assertion of bias without more information.
As correctly identified by the first respondent in its submissions, a claim of bias against the Tribunal must be distinctly made and clearly proved by the applicant: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. The applicant has not distinctly made a claim of bias nor has he clearly proven such claim.
The first respondent submits, for completeness, that even if this ground were to be understood as an allegation of apprehended bias, there is nothing before the Court capable of demonstrating that a fair-minded layperson might think that the Tribunal did not bring a fair and impartial mind to the making of the decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [37] per Rares and Jagot JJ.
The applicable principles in relation to apprehended bias have recently been considered by the Full Federal Court in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FCAFC 41 (Chen) (Bromberg, Murphy and Markovic JJ) where the Court held that the primary judge did err because the Tribunal hearing had been affected by apprehended bias. The Court referred to the earlier explanation given in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36] (Allsop CJ, Kenny and Griffiths JJ) that:
… at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i)there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii)there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
In Chen at [37]-[38], in considering the applicable test for apprehended bias, and the difference, in that regard, between administrative decision-making and judicial decision-making, the Full Federal Court explained that:
37The rule in relation to apprehended bias applies both in the context of curial and non-curial decision-making. When applied outside the judicial system, the rule “must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings”; and “regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: Refugee Review Tribunal, Re: Ex parte H [2001] HCA 28; 179 ALR 425 at [5] (Gleeson CJ, Gaudron and Gummow JJ).
38 One must therefore take account of the fact that the Tribunal’s role is inquisitorial and that the Tribunal:
...must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
:NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 328; 214 ALR 264 at [19] (Allsop J (as his Honour then was) with whom Moore and Tamberlin JJ agreed).
In the present case, there is no transcript or audio recording of the Tribunal hearing. There is no particularisation of the applicant’s claim of bias by the Tribunal. I have already found that the areas of questioning by the Tribunal as recorded in the decision were both relevant and necessary for the purposes of the Tribunal properly undertaking its task in assessing the applicant against the relevant criteria for the grant of a TPV. There is nothing before me to suggest that the investigation by the Tribunal of the facts of this case was not reasonable or appropriate.
I do not find that the Tribunal considered the applicant’s claim with bias and I dismiss Ground 3.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding seventy-seven
(77) numbered paragraphs are a
true copy of the Reasons for Judgment of
Judge Goodchild.Associate:
Date: 3 March 2023
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