CQJ15 v Minister for Immigration and Border Protection
[2016] FCA 918
•11 August 2016
FEDERAL COURT OF AUSTRALIA
CQJ15 v Minister for Immigration and Border Protection [2016] FCA 918
Appeal from: CQJ15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 728 File number: NSD 508 of 2016 Judge: MARKOVIC J Date of judgment: 11 August 2016 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – whether the primary judge erred by applying the wrong test or taking into account irrelevant considerations in respect of s 36(2)(aa) of the Migration Act 1958 (Cth) – whether apprehended bias was established on the part of the primary judge – whether the primary judge denied the applicant procedural fairness Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) Cases cited: Chan Yee Kinv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Re J.R.L.; Ex Parte C.J.L. (1986) 161 CLR 342
Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425
SZRMQ v Minister for Immigration and Border Protection and Another (2013) 219 FCR 212
Date of hearing: 3 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 73 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: H P T Bevan Solicitor for the Respondents: Sparke Helmore ORDERS
NSD 508 of 2016 BETWEEN: CQJ15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
11 AUGUST 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
The appellant appeals from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 4 April 2016 dismissing an application for judicial review of a decision of the second respondent (the Tribunal): CQJ15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 728 (CQJ15). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection visa.
BACKGROUND
The appellant is a national of Bangladesh. He arrived in Australia as an irregular maritime arrival on 28 February 2013.
On 8 March 2013 the appellant attended an interview with an officer of the Department of Immigration and Border Protection (the Department). In that interview the appellant claimed that he left Bangladesh because he was a supporter of the Jamaat-e-Islami party (JI) and that one evening in 2011 he was involved in a fight in his village with members of the Awami League (AL). He was told by his cousin that the AL was conspiring to kill him so he left his village and went to Dhaka. From there he went to Malaysia. When he returned to his village on about 27 January 2013 the appellant was threatened and he went out the back door of his house and back to Dhaka.
On 11 March 2013 the appellant attended a further interview with a Departmental officer. In that interview the appellant repeated his claim to be a supporter of JI, that there had been a clash between JI and AL supporters in his village in which people had been injured and that he was told by his cousin, who is an AL member, that AL supporters wanted to kill him which is why he left his village. The appellant said that he could not remember when the fight occurred but said that it happened in 2012 and this was the reason he left Bangladesh. He returned to Bangladesh from Malaysia because his parents wanted to see him but, on the third day after his return, he saw AL members approaching the front of his house so he fled through the back door and went to Dhaka. From Dhaka he returned to Malaysia.
On 29 May 2013 the appellant lodged an application for a Protection (Class XA) visa (Protection Visa). He set out his claims in a statement annexed to his application as follows:
(1)when he was about 15 to 16 years’ old he became interested in the ideology of the JI. He first met its members in a mosque in Deara village where he was praying;
(2)he joined JI as a member after about a year and started attending their meetings that were held about once or twice a month;
(3)AL supporters were giving JI members trouble and sometimes attacked them;
(4)the appellant’s cousin was a supporter of the AL and in around June 2012 he told the appellant that members of the AL had plans to kill him. The appellant was frightened and decided to leave and travel to Malaysia where he stayed for six months;
(5)in about December 2012 the appellant returned to Bangladesh to see his family as he thought the situation may have changed and that he would be safe but about three days later his cousin called him and told him that the AL was still planning to kill him. His cousin told him that they were on their way to his house. As he was getting ready to leave the appellant saw about eight to ten men approaching his house, some of whom were carrying long knives and swords. The appellant left through the back door and fled to Dhaka and from there went to Malaysia;
(6)the appellant stayed in Malaysia for about eight to ten days and then travelled to Indonesia from where he travelled by boat to Australia.
On 1 August 2014 the appellant attended an interview with a delegate of the Minister. During that interview the appellant reiterated his written claims namely that he was a supporter of JI, that he attended JI meetings that were held about once or twice a month, that supporters of the AL attacked, insulted and beat JI members whenever they could, that the appellant’s cousin, an AL supporter, told him in June 2012 that members of the AL had plans to kill him and that in fear of his life he decided to leave Bangladesh and travel to Malaysia where he stayed for six months. The appellant also confirmed the claim that he returned to Bangladesh in December 2012 to see his family but fled after three days when he saw approximately ten men, who he understood to be AL members, approaching his house carrying knives and swords. He returned to Dhaka and then to Malaysia from where he travelled to Indonesia and boarded a boat to Australia.
At that interview with the delegate the appellant also gave evidence that:
(1)he has no particular role within the JI party but was attracted to its teachings;
(2)he attended approximately one to two JI meetings a year and did not play any role at those meetings;
(3)he was involved in election canvassing activities for JI on one occasion many years ago but avoided further canvassing for fear of being targeted by members of the AL and, because he is illiterate, he has never cast his vote in Bangladesh;
(4)AL members used to use abusive language, demand money and sometimes hit members and supporters of JI. On one occasion many years ago he was hit on the cheek with a stick by a member of AL because he refused to pay an extortion fee;
(5)in June 2012 the member of the AL who had hit the appellant demanded money from him. He refused to provide the money and was abused and threatened by the AL party member. In self defence the appellant picked up a stick and severely beat the AL party member causing him to fall to the ground;
(6)passers-by who saw what had happened told the appellant to escape from the village as the AL would seek revenge because of what he had done. Fearing for his life the appellant fled the scene but was later telephoned by his cousin who advised him to flee Bangladesh as members of the AL had plans to kill him.
The delegate made her decision on 19 August 2014 refusing to grant the appellant the Protection Visa. In summary, the delegate accepted that the appellant was a supporter of JI but did not accept that he had any significant involvement in politics in Bangladesh before 2012. Notwithstanding that finding, the delegate accepted that the appellant would be recognised as a JI supporter in his local area and that he faced a real chance of harm from local AL supporters but found that the appellant was able to relocate in Bangladesh.
On 21 September 2014 the appellant applied to the Tribunal for review of the delegate’s decision. By letter dated 1 May 2015 the appellant was invited to appear before the Tribunal to give evidence and present arguments in relation to the issues in his case.
The appellant attended two hearings before the Tribunal. The first hearing took place on 20 May 2015. The hearing was adjourned to allow the appellant to provide submissions and, if thought appropriate, a further statement in relation to issues that arose. The Tribunal raised two issues of particular concern: the discrepancy between the appellant’s evidence that he had left Bangladesh in 2005 and remained in Malaysia for six to seven years, which was contrary to his previous claim that he had first gone to Malaysia in 2011 or 2012 for six months; and that, contrary to his previous evidence, in 2012 when he returned to Bangladesh he did not return to his village but stayed in Dhaka.
A second hearing was held on 24 June 2015. In the period between the two hearings the appellant provided a further statutory declaration to the Tribunal in which, among other things, he stated that:
(1)he was about 20 or 21 when he left Bangladesh for Malaysia;
(2)once there he managed to get a job in construction in Kuala Lumpur, he was never asked for any work permit and he worked in Malaysia for 6 to 7 years;
(3)after 6 and a half years the appellant “made” his own passport, he was unable to get papers in Malaysia so he asked his mother if he could go by boat to seek asylum in Australia and she said he could provided he came to farewell her;
(4)one month before departing for Australia, in late 2012 or early 2013, the appellant returned to Dhaka, he stayed in a small hotel and telephoned his mother who told him it was not safe for him to go to the village because of the AL and that she did not feel safe to come to Dhaka to visit the appellant as she feared the AL would find out where she had gone;
(5)he only spent three days in Dhaka and he saw no one from his family; and
(6)the reason why he incorrectly timed events in his previous statements was because he was told that he would “have a lot of trouble … if the immigration knew that [he] had been living in Malaysia for 7 years”.
On 15 November 2015 the Tribunal affirmed the delegate’s decision not to grant the appellant the Protection Visa.
THE TRIBUNAL’S DECISION
The Tribunal summarised all of the appellant’s evidence and the submissions provided on his behalf. The Tribunal found that there were a number of matters that counted against the appellant’s credibility. It found that having carefully considered the appellant’s evidence it had “serious concerns about his credibility and the veracity of his claims”. The Tribunal also concluded that it found his “evidence to be inconsistent and lacking credibility, and his responses to be generalised, unconvincing and superficial”: at [52] of the Tribunal decision record.
The Tribunal made the following relevant findings:
(1)the appellant was born on 1 December 1984 and grew up with his parents and one older brother;
(2)when he was about 15 or 16 the appellant became interested in the ideology of JI and first met its members at a mosque in his village;
(3)the appellant joined JI when he was about 16 or 17, a year later he started attending meetings once or twice a month. He held no position with JI and his involvement was limited to attending meetings and some processions;
(4)it did not accept or find that the appellant was attacked by supporters of AL on two occasions or that in either 2004 or 2005 his cousin called him and told him that the AL were planning to kill him, that they were on their way to his house or that the appellant saw eight to ten men approaching with long knives and swords and that he left through the back door and fled to Dhaka;
(5)it did not accept that following the second attack his father sent him to Malaysia in either 2004 or 2005 but accepted that the appellant travelled to Malaysia in about 2005 and remained there for six and a half years;
(6)the appellant returned to Bangladesh on one occasion only to say goodbye to his mother, having decided to come to Australia;
(7)it did not accept that the appellant’s cousin told him in or about June 2012 that the AL had plans to kill him; and
(8)it accepted and found that if the appellant returns to Bangladesh he will become involved in JI and undertake similar activities as before, that is, attending meetings and participating in processions.
The Tribunal noted its finding that until 2005 the appellant was a member of JI and that it had found that if he returns to Bangladesh he will become involved in JI and undertake similar activities as before. However, consistent with the country information to which it had regard, the Tribunal did not accept that the appellant was at risk of being arrested or that he will live in fear of violence on a day to day basis. The Tribunal:
(1)found that there was no real chance that the appellant would suffer from any harm now or in the future if he is returned to Bangladesh;
(2)was not satisfied that the appellant, in his particular circumstances, had a well founded fear of serious harm amounting to persecution for reasons of a Convention ground or for any other reason;
(3)considered that the application had been made to extend the appellant’s stay in Australia and noted that the appellant had made no other claims to fear harm apart from those which it had rejected; and
(4)found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there was a real risk that he will suffer significant harm. Accordingly, it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 10 December 2015 the appellant commenced proceedings in the Federal Circuit Court. In his application he raised the following grounds:
1.The Tribunal placed undue weight on irrelevant considerations which did not detract from well-founded fear of persecution.
2.The Tribunal failed to ask the correct questions and drew their conclusions in the absence of evidence.
3.The Tribunal failed to ask itself the correct question and relied upon "real risk of significant harm”. The court in Chan v MIEA (1989) CLR 379 states that the question to be asked when assessing claims for protection is whether there is "a real chance that a claimant be persecuted". A real chance may be below a 50 per cent chance.
The appellant also filed an affidavit affirmed by him on 9 December 2015 and an affidavit of his lawyer at the time of commencement of the proceedings, Brenton Christopher Halligan, sworn on 9 December 2015 which annexed a copy of the Tribunal decision and a copy of the appellant’s affidavit affirmed 9 December 2015.
The appellant appeared in person at the hearing. At its commencement, after setting out the appellant’s claims and the Tribunal’s findings, the primary judge explained the nature of the hearing, being one to determine whether the Tribunal’s decision was affected by legal error, and the appellant confirmed that he understood the nature of the hearing: CQJ15 at [8].
In response to submissions made by the appellant that the Tribunal had wrongly rejected his credit, the primary judge held that nothing that the appellant said identified any legal error on the part of the Tribunal. The primary judge noted that it was open to the Tribunal to accept part of the appellant’s evidence and to reject other parts of his evidence and held that the adverse credit findings made by the Tribunal were open to it on the material before it. His Honour also found that there was “no substance in the contention that the Tribunal did not properly consider the [appellant’s] circumstances and the structure and reasons of the Tribunal are inconsistent with such a proposition”: CQJ15 at [12].
The primary judge considered each of the grounds in the application, finding that none of them was made out. In particular, his Honour held:
(1)in relation to ground 1, that a “generalised assertion of an irrelevant consideration” did not identify any jurisdictional error: CQJ15 at [13];
(2)in relation to ground 2, the “generalised assertion of incorrect questions or conclusions” also failed to identify any jurisdictional error and that on the face of the Tribunal’s reasons it “asked the correct questions of law in relation to the criteria under” ss 36(2)(a) and 36(2)(aa): CQJ15 at [14]; and
(3)in relation to ground 3, it was apparent that the Tribunal made adverse findings in relation to the criteria under s 36(2)(a) applying the correct test, that it dealt separately with the issue of complementary protection and made adverse findings in that regard. The primary judge held that there was no substance in the proposition that the Tribunal failed to ask itself the correct questions in relation to the criteria under ss 36(2)(a) or 36(2)(aa): CQJ15 at [15].
Accordingly, the primary judge dismissed the application with costs.
THE APPEAL TO THIS COURT
On 12 April 2016 the appellant filed a notice of appeal in this Court. The appellant raises the following grounds of appeal (as written):
1.Hon. Judge Street of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. The RRT failed tot separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. RRT decision is unreasonable with regards to Complementary Protection Provision.
2.The appelant claims that he was denied procedural fairness and natural justice when Hon Judge made judgment with closed mind. Hon. Judge failed to hold that the Tribunal mentioned different in formation in his two statements and put as test for credibility. He was a truthful witness and whatever he gave evidnce was correct Appellant. The Tribunal's whole arguments to affirm the decision of the first Respondent is unreasonable and against the procedural fairness. The Tribunal made decision with closed mind.
3.The Hon Judge failed to hold that the Tribunal did not understand the difference between relevant and irrilivilant matters .THE Tribunal mistook the facts and constuid the facts. The appellant claims that he became victim of apprehended biased when his honur blindly gave decision in favour of Respondent.
The appellant filed submissions in support of his grounds of appeal. It is difficult to discern how those submissions correlate and support the appellant’s grounds of appeal. They set out the appellant’s background and the procedural history. To the extent they set out substantive submissions they take issue with the credit findings made by the Tribunal; allege that the appellant was denied procedural fairness by the Tribunal because it did not give him “benefit of doubt” and provide some support for ground 1 in the notice of appeal by submitting that the Tribunal’s reasons were “confused and test for persecution was not applied according to the rule of the Migration Act”. To the extent the appellant’s submissions take issue with the Tribunal’s adverse credit findings and its findings of fact, the appellant seeks impermissible merits review which is not available in this Court and I do not propose to consider those aspects of his submissions further.
The appellant supplemented his written submissions with oral submissions at the hearing. He made submissions in three areas:
(1)he said that when he arrived in Australia he could not remember everything but that whatever he said was correct. He said he was fearful but that when he had another hearing he felt “relaxed and independent” and then he set out whatever he remembered further. He said that there could be error on his part for what happened ten years ago but that whatever he said was correct;
(2)at the Tribunal hearing, the interpreter gave very short interpretation of what he said and whenever the “department” asked him a question they did not ask “elaborately” or they asked a very short question. The appellant said that he asked for a change of interpreter at the Tribunal hearing but that did not happen;
(3)whatever the Tribunal decided was on the basis of possibilities and not based on the current situation. Every day in his area one hundred to two hundred people are arrested or killed. As they decided on the basis of possibilities, if the appellant returns to his country he will not be killed.
When invited to make submissions in reply the appellant said that he wished to provide further material to the Court: a transcription of the proceedings before the Tribunal to support his new claim that the interpretation was not adequate and unspecified documents which, contrary to what is stated at [8] of the primary judge’s judgment, the appellant alleged were filed with the Federal Circuit Court pursuant to directions made by a registrar of that court on 18 February 2016. The appellant was seeking more time to do that and sought an adjournment to allow him to provide the documents that he said were filed with the Federal Circuit Court but that the Minister said he did not receive.
The Minister opposed the application for an adjournment and submitted that if there was an assertion that the appellant had in fact filed a document in the Federal Circuit Court that was not received the time to raise that was in the proceeding before the primary judge. That was not done. The Minister contended that it was clear from the primary judge’s reasons that he and the Minister proceeded on the basis that there were no other documents upon which the appellant sought to rely in the court below. It was further submitted that the notice of appeal does not raise this issue either as a ground or as some irregularity in the record that needed to be corrected nor do the appellant’s submissions raise the issue.
I declined to grant the adjournment to allow the appellant to provide the unspecified documents which he alleged had been filed in the Federal Circuit but which had not come to the attention of the primary judge or the Minister. I accept the submission of the Minister that the time to raise this issue was at the hearing before the primary judge where it would have been apparent that the primary judge and the Minister were proceeding on the basis of the application as filed and that they did not have any other material such as an amended application, evidence or submissions before them.
Even if not raised at that point, the appellant has been on notice at least since the primary judge gave his ex tempore judgment on 4 April 2016 that the court record did not show that any further material had been filed. This appeal was commenced on 12 April 2016 and on 13 April 2016 a registrar of this Court made orders for the filing of an appeal book and submissions. The appeal book does not include any material filed pursuant to the orders of the registrar made in the court below, the appellant’s written submissions do not raise this issue and it is clear from the Minister’s submissions that he was proceeding on the basis that no further material had been filed in the court below. Taking into consideration that the appellant is not legally represented, in my view he has nonetheless had sufficient time, following the filing of his notice of appeal, to consider whether he wished to put any evidence before the Court in relation to this issue and to seek leave to rely on that evidence.
I turn now to a consideration of each of the grounds of appeal raised in the notice of appeal and the matters raised by the appellant in his oral submissions.
Ground one
By this ground the appellant contends that the primary judge erred in failing to hold that the Tribunal did not apply the correct test with respect to the complementary protection criterion in s 36(2)(aa) of the Act and that the Tribunal failed to separate the tests under the Refugees Convention and the complementary protection criterion. The appellant also asserts that the Tribunal’s decision made pursuant to s 36(2)(aa) of the Act was unreasonable.
The first part of this ground of appeal relates to, but is not the same as, the third ground in the application before the primary judge. That is in the ground considered by the primary judge the appellant focused on the test under the Refugees Convention noting the Tribunal’s reference to the “real risk of significant harm” and said that the question to be asked was as stated by the High Court in Chan Yee Kinv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 namely, whether there is a “real chance” of persecution. The Minister contends that the second part of the ground was not raised below and that the appellant requires leave to raise it on appeal.
To the extent that the appellant makes reference to this ground in his written submissions he says that the Tribunal’s “finding of reasons is confused and test for persecution was not applied according to the rule of the Migration Act”. He also says that he “would qualify for the criterion of Complimentary protection arrangements as there are substantial grounds to believe that there is a real risk that he would suffer significant harm on return to Bangladesh”. The appellant also submits that he would be subjected to significant harm such as “long time imprisonment for supporting” JI and that as he is a returned asylum seeker when government authorities find out that he is returning from Australia and that he applied for the Protection Visa “on this ground” they will arrest him at the airport and he will “be sentenced for unlimited period”.
As to the first part of the ground of appeal, the Minister submitted that the appellant’s argument proceeds on a misunderstanding of the Tribunal’s decision and that the Tribunal did not apply an incorrect test.
The primary judge considered and rejected the corresponding ground in the application before him at [15] of his judgment. His Honour found that the Tribunal made adverse findings in relation to the criteria under s 36(2)(a) of the Act applying the correct test and separately dealt with and made findings in relation to the issue of complementary protection. He rejected the ground of review finding that there was no substance to it.
In his application before the Federal Circuit Court the appellant correctly identified the test to be applied under the Refugees Convention for the purpose of s 36(2)(a). However, contrary to the appellant’s assertion, and as held by the primary judge, the Tribunal applied the correct test. At [61] of its decision record the Tribunal found that there was “no real chance” that the appellant would suffer from any harm now or in the future if he returned to Bangladesh and at [62] of its decision record it concluded that it was not satisfied that the appellant in his particular circumstances had a well founded fear of serious harm amounting to persecution for reasons of a Convention ground or any other reason. The Tribunal then turned to the complementary protection criterion under s 36(2)(aa). At [64] of its decision record the Tribunal found that there were “not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there is a real risk that [he] will suffer significant harm”, applying the test in s 36(2)(aa) of the Act. Accordingly, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The Tribunal did not apply an incorrect test in making its findings under s 36(2)(aa) of the Act. As the Minister submits, irrespective of the focus of the appellant’s challenge, it is clear that the Tribunal did not apply an incorrect test, either in relation to ss 36(2)(a) or 36(2)(aa) of the Act. There is no error in the primary judge’s reasons insofar as he rejects the allegation of the application of an incorrect test in this regard.
I turn now to the second part of the ground in which the appellant contends that the Tribunal’s decision under s 36(2)(aa) was “unreasonable”. In his written submissions the appellant takes issue with the Tribunal’s factual findings and its findings about the credibility of the appellant.
The Minister submits that the correct approach in a case like this is, as identified by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133] (SZMDS) (per Crennan and Bell JJ):
to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.
The conclusions reached by the Tribunal were open on the material before it. The Tribunal carefully reviewed the evidence which had been given by the appellant at the time of his arrival in Australia, to the Minister’s delegate and at the hearing before it, including submissions that had been made on his behalf. The Tribunal identified inconsistencies in the appellant’s evidence and considered the explanations given by the appellant for those inconsistencies. The Tribunal carefully considered the appellant’s evidence in reaching its conclusions about his credibility and the veracity of his claims. On the basis of those findings it then proceeded to apply the test and making findings under, relevantly, s 36(2)(aa) of the Act.
It was open to the Tribunal to engage in the process of reasoning it did and to make its findings on the material before it. The Tribunal’s decision under s 36(2)(aa) of the Act is not “unreasonable” as alleged by the appellant. As the Minister submits, to the extent the appellant’s description of the decision as “unreasonable” is an emphatic way of expressing disagreement or saying that the reasoning is wrong, as seems to be the case based on the appellant’s written submissions, it has no particular legal consequence: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] (per Gleeson CJ and McHugh J). To the extent leave is required to raise this part of ground one on appeal, while the Minister can point to no prejudice in it being raised, it has no merit and thus leave is refused.
Ground one of the notice of appeal is not made out.
Ground two
By ground two the appellant alleges that he was denied procedural fairness in the Court below based on an allegation of bias on the part of the primary judge in that the primary judge made his decision with a “closed mind”. The appellant also asserts that the Tribunal’s decision was “unreasonable and against the procedural fairness” and that the Tribunal made its decision with a “closed mind”.
The first part of this ground raises an allegation of apprehended bias on the part of the primary judge, given use of the words “closed mind”. The appellant’s written submissions do not address this ground.
The Minister, after setting out the relevant test, submitted that there was nothing to support an allegation of apprehended bias on the part of the primary judge. Nor was there anything to support a finding of denial of procedural fairness. The Minster noted, as recorded in the primary judge’s judgment at [8], that the appellant was given an opportunity to file an amended application, evidence and submissions and he did not. He was given an opportunity to make submissions at the hearing, which were considered by the primary judge but, in the result, his Honour found that no legal error was made out.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 a majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) at [6] stated the test of apprehended bias as whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. At [8] their Honours said:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge … 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.
It is also established that any allegation of apprehension of bias by reason of pre judgment must be “firmly established”: see Re J.R.L.; Ex Parte C.J.L. (1986) 161 CLR 342 at 352.
There is nothing in the material before me or evident in the reasons of the primary judge to support an allegation of apprehended bias. The appellant has not tendered a transcript of the hearing or any other material to support his assertion of bias on the part of the primary judge. Nor is there anything before me to support the suggestion of a denial of procedural fairness. As the Minister submitted the appellant was given the opportunity to file an amended application, evidence and submissions which he did not. The appellant claimed in oral submissions that such material had been filed but it was not before the primary judge, if he had, it was not sought to be tendered on the appeal and the appellant’s application for an adjournment to provide the material he asserted had been filed was refused for the reasons given at [27]-[28].
The appellant attended a hearing where the primary judge explained the nature of the hearing, being one to determine whether the Tribunal’s decision was affected by legal error, and the appellant confirmed that he understood that to be the case: at [8] of CQJ15. The primary judge considered the appellant’s submissions but found that neither the grounds raised by him in his application or the submissions he made identified any error in the Tribunal’s decision.
The second aspect to this ground is the appellant’s assertion that the Tribunal’s decision was “unreasonable and against procedural fairness” and that it made its decision with a “closed mind”. The Minister submits that the ground is new insofar as the appellant seeks to raise an allegation of “unreasonableness” and bias on the part of the Tribunal and requires leave which should be refused because this aspect of the ground lacks merit.
In relation to the allegation that the Tribunal’s decision was unreasonable, the Minister submitted that there is nothing to suggest that the Tribunal’s decision to affirm the decision not to grant the appellant a protection visa is one at which no rational or logical decision maker could arrive on the same evidence: see SZMDS at [130].
As to the allegation of a denial of procedural fairness by the Tribunal, the Minister submitted that this may correspond to the grounds below and reflect what appeared in the appellant’s affidavit sworn 9 December 2015, that the substance of the contention was dealt with by the primary judge at [12] of his judgment and that it was clear that the Tribunal asked the appellant questions about his claims and gave him an opportunity to respond, including an opportunity to submit further material about the issues that the Tribunal identified at the conclusion of the first hearing, and the chronology of events. Having afforded that opportunity to the appellant, the Tribunal reached an adverse view about his credibility and made certain findings. The Minister also submitted that there is nothing in the material to indicate that the Tribunal did not comply with its obligations under Div 4 of Pt 7 of the Act, especially those concerning the hearing under s 425 of the Act.
Turning to these aspects of ground two, in my opinion there is nothing to suggest that the Tribunal’s decision was unreasonable. It is not a decision that no rational or logical decision maker could arrive at based on the same evidence. I am also of the opinion that there was no denial of procedural fairness on the part of the Tribunal. The appellant was invited to attend a hearing, which he did, the Tribunal asked the appellant questions about his claims and gave him an opportunity to respond, including an opportunity to submit further material, if he wished, about the issues identified by the Tribunal, and a second hearing was convened. The Tribunal’s adverse findings were open to it on the evidence before it. To the extent that the primary judge deals with this issue at [12] of his reasons, there is no error in the approach of the primary judge or the conclusion that he reached. Nor is there anything to indicate that the Tribunal did not comply with its obligations under Div 4 of Pt 7 of the Act.
Finally, by this ground the appellant alleges that the Tribunal made its decision with “closed mind”. That is, the appellant raises an allegation of bias against the Tribunal.
In Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 the High Court (Gleeson CJ, Gaudron and Gummow JJ) at [27] to [28] said:
27.The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
28.Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
(citations omitted)
The appellant has not put before the Court a transcript of the proceedings before the Tribunal and there is nothing in the material before me to suggest that the Tribunal approached its task other than by bringing an impartial mind to the resolution of the issues before it. The allegation of bias on the part of the Tribunal is not made out.
In my opinion, to the extent that aspects of ground two of the notice of appeal are new and require leave, that leave is refused as those new grounds lack merit. Ground two of the notice of appeal is otherwise not made out.
Ground three
By ground three the appellant alleges that the primary judge erred in rejecting the argument that the Tribunal took into account irrelevant considerations, that the Tribunal “mistook the facts” and again repeats his allegation of bias on the part of the primary judge.
The appellant’s written submissions do not address this ground. The Minister submitted that the primary judge properly characterised this ground insofar as it raises the Tribunal taking into account irrelevant considerations, which was raised below, as a general assertion and correctly rejected it at [13] of CQJ15. In relation to the assertion that the Tribunal “mistook” the facts the Minister submitted that this appears to correspond to the appellant’s oral submission in the court below in relation to the Tribunal’s findings of fact and that the primary judge’s rejection of the argument on the basis that it raised no legal error was correct.
In my opinion neither of these aspects of ground three is made out. The primary judge correctly held that a generalised assertion as made by the appellant of the Tribunal placing weight on an irrelevant consideration does not identify any error let alone jurisdictional error in the decision of the Tribunal. The primary judge was right to dismiss this ground. Further, the allegation that the Tribunal “mistook” the facts is an attempt at impermissible merits review. The primary judge identified that to be the case and rejected the ground on that basis. There is no error in the judgment of the primary judge in that regard.
The final aspect of this ground is an allegation of bias on the part of the primary judge. I repeat the matters set out at [45] to [48] above.
Ground three is not made out.
The appellant’s oral submissions
The appellant made oral submission going to three issues as recorded above.
The appellant’s submission in relation to the issue of his answers given to the Tribunal being correct seeks impermissible merits review. It does not raise any appealable error on the part of the primary judge and it cannot succeed.
The appellant’s submission relating to the Tribunal deciding matters on the basis of “possibilities” seems to relate to ground one of the notice of appeal which I have addressed at [30] to [40] above.
The appellant’s final oral submission concerned the standard of interpretation at the Tribunal hearing and the appellant alleges that he asked that the interpreter be replaced but that the Tribunal declined to do so. No evidence was put before the Court in support of this ground which was not raised before the primary judge.
The Minister submitted that the appellant would need leave to raise the ground and that leave should be refused because in the absence of evidence it cannot succeed, to the extent that it is a matter that can and should have been raised by evidence he would be prejudiced and no particulars of the deficiencies in the interpretation were provided beyond a general statement that the questions and answers were short, which does not rise to the level of the authorities in relation to the standard of interpretation.
The appellant raised this ground for the first time at the hearing before me. He did so without tendering any evidence in support of the claim and did not provide any particulars of how he alleges the interpretation was so poor as to deny him a fair hearing pursuant to s 425 of the Act.
In Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 (Perera) at [29] Kenny J said that:
As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. …
The judgment in Perera has been described as influential: SZRMQ v Minister for Immigration and Border Protection and Another (2013) 219 FCR 212 (SZRMQ) at [10] (per Allsop CJ).
In SZRMQ, Allsop CJ said at [9]:
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The general assertion that the explanations given by the interpreter of what the appellant said were short is not sufficient to properly particularise the claim or to sufficiently identify deficiencies in the interpretation and whether the hearing was such as to deny the appellant an opportunity to place before the Tribunal relevant information so as to convey the ideas or concepts put forward by the appellant.
While I accept that if the ground were allowed it would prejudice the Minister, any such prejudice could be cured by an adjournment. More persuasive is that, as the Minister submits, in the absence of evidence this claim cannot succeed. While the appellant made an application for an adjournment, which was refused, he did so in order to provide the Court with material he said had been filed in the Federal Circuit Court contrary to the Minister’s submission and what was set out in the judgement of the primary judge at [8], not in order to provide a transcript of the proceedings before the Tribunal in support of this claim which he said he had not previously provided. Given its lack of merit in the absence of any evidence I refuse leave to raise this ground of appeal.
CONCLUSION
For these reasons the appeal must be dismissed and the appellant ordered to pay the first respondent’s costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 11 August 2016
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