CZBH v Minister for Immigration
[2013] FCCA 2210
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZBH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2210 |
| Catchwords: MIGRATION – Allegations of bias against Tribunal member – challenge to the conduct of the hearing – alleged failure of Tribunal to consider material relied on by Applicants – alleged failure of Tribunal to call witnesses relied on by the Applicants – failure to adjourn hearing – presence of Applicants’ lawyer and acquiescence in process – remedy of post-hearing submissions. |
| Legislation: Migration Act 1958 (Cth), ss.420, 422B, 426(3) Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 |
| Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 225 CLR 88 W. Trumble, L. Brown , A. Stevenson, J. Siefring (eds) Shorter Oxford Dictionary (Oxford University Press, 5th Edition 2002) M. Abdalla, “Sacred Law in a Secular Land: To What Extent Should Sharī`a Law be Followed in Australia?” (2012) 21 Griffith Law Review 657 |
| Applicants: | CZBH & CZBI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 41 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 3 February 2013 |
| Date of Last Submission: | 14 August 2013 |
| Delivered at: | Canberra |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr A Anforth |
| Solicitors for the Applicants: | Capital Lawyers, Canberra |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | Clayton Utz, Canberra |
ORDERS
The Application filed on 4th June 2012 be dismissed.
The parties are to file written submissions of no more than 2 pages in relation to costs within 21 days of the date of these reasons. Orders in relation to costs will be determined on the basis of the written submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 41 of 2012
| CZBH & CZBI |
Applicants
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter was originally heard in February of this year. It is an appeal from a decision of the Refugee Review Tribunal (“the Tribunal”), delivered on 1st May 2012, involving a Husband and Wife (and their two children – one of whom was born in Australia in August 2009) who are from Pakistan. They fear persecution if they return to that country because, contrary to their wider family’s religious and cultural traditions, they are in a “love marriage” rather than one that is religiously and culturally sanctioned.
Put shortly, the Tribunal formed the view that the Applicants fabricated their main claims and otherwise exaggerated the extent to which their families, and society more broadly, objected to their relationship and marriage. The Tribunal formally found that the Applicants' [marital] relationship did not attract the adverse interest of the Applicant Wife’s family (extended or otherwise), or of anyone else in Pakistan.
The Tribunal found that the Applicants did not face a real chance of persecution in Pakistan for any relevant ‘Convention-related reason.’[1] Nor were the Applicants entitled to relief under the complementary protection provisions of the Migration Act1958 (“the Act”).
[1] Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967.
Finally, the Tribunal found, at [94] of its reasons, that the Applicants were provided with “a real opportunity during the hearing, and in correspondence after the hearing, to give evidence and present arguments relating to the issues arising in relation to the decision under review.”[2]
[2] The Tribunal’s reasons were provided in the Court Book (“CB”) at pp.349-365.
For immediate purposes, it is this final matter of the process of the Tribunal that is challenged by the Applicants. Among other things, the Applicants contend that the Tribunal hearing was attended by [apprehended] bias on the part of the Tribunal Member who conducted it, as well as a number of procedural deficiencies such that jurisdictional error is established.
The primary issues to be determined in the current matter are (a) whether the conduct of the hearing before the Tribunal displayed bias against the Applicants such as to vitiate the process before it, and (b) whether the Applicants were denied procedural fairness by the Tribunal’s failure to interview two overseas witnesses upon whom the Applicants relied?
Recent Statement of Principle: SZRUI
In July, the Full Court of the Federal Court of Australia delivered an important judgment, SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship (“SZRUI”).[3] That Full Court decision is directly relevant to the matters that are before this Court in the present proceeding.
[3] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. See also the even more recent discussion by Allsop CJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [6] – [11]. In SZMRQ, the Full Court also discussed at significant length requirements in relation to the requisite standard of translation in hearings under the Act.
The decision of the Full Court in SZRUI was brought to the attention of the parties and written submissions invited from them according to a brief timetable, which were, in due course, provided.
It is as well to record at the outset some comments from Allsop CJ in SZRUI in relation to applications of the kind before the Court and the processes that should be observed in hearings before the Tribunal. At [2], his Honour said (internal citations omitted; emphasis in original text):
Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome)…
Then at [3], his Honour observed:
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.
Still further, at [4], the Chief Justice said:
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, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for.
And at [5], his Honour said:[4]
The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is … an inhering requirement of the exercise of state power.
[4] At [26] in SZRUI, Flick J referred to the importance of ensuring that there be a “meaningful hearing” (emphasis added): “An opportunity to be heard, it is thereby recognised, may fall short of a meaningful hearing if a claimant is provided with mere time and access to a decision-maker but with no awareness of the issues which the decision-maker considers fundamental or potentially fundamental to his claim.”
Also of some moment is Allsop CJ’s final comment, at [6], where his Honour confirmed that his comments regarding “process” did not reflect, one way or the other, on any strength or weakness, of the Appellant’s claims.[5]
[5] See the comments of Flick J to similar effect, at [39].
Just so here: the focus of the Court is on the process or conduct of the hearing before the Tribunal that involved the Applicants on 21st March 2012. It follows that these reasons do not comment on the truth, accuracy, weakness or strength, or anything else, in relation to the claims made by the Applicants.
Also in SZRUI Flick J described the delicate (and admittedly difficult) balance that needs to be struck by the Tribunal in hearings before it. At [33] and [34], his Honour said:
[33] Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
[34] Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.
Of particular significance in the current matter is Flick J’s further comment, at [35], where his Honour said (emphasis added):
A reasonable opportunity to be heard, it is concluded, requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.
In SZRUI, at [75], Robertson J said that the “whole of the transcript of proceedings must be reviewed rather than sentences taken in isolation.” It is also apposite to record that in SZRUI, at [83], Robertson J noted the important caution in relation to a Tribunal’s conduct which fails to distinguish or “elides relevance with process.”
In the current matter, the Court has the benefit of a type-script of the hearing before the Tribunal, which was provided by the First Respondent’s solicitors. The Court also had the benefit of listening to the whole of the recording of the proceeding before the Tribunal, as did Counsel for the parties (and their solicitors), in the course of the hearing in this Court. The recording was regularly stopped so that (a) Counsel could comment/make submissions, and (b) the Court could ask questions in relation to what was being played in open Court. The Court was also provided with a CD of the hearing before the Tribunal.
Rather like cases where jurisdictional error is alleged, in relation to which jurisprudential concept or principle there is rarely any “bright line” of demarcation as to what is and what is not such error, just so here: there is no “bright line” or startlingly obvious error in the conduct of the Tribunal hearing. Rather, it is more a matter of perception of the process, the accumulated perception of interference, intolerance (in admittedly not ideal circumstances) and degrees of frustration, all of which need to be assessed by careful attention as to how the process before the Tribunal was conducted and in doing so, to assess what Allsop CJ described as an “apparently fair process.” This must, in my view, take into account the opportunity afforded to the Applicants after the hearing to provide further written submissions. While not a panacea for any serious defects in the hearing or the process more generally, it is nonetheless an important extra step that may ameliorate or mitigate any relevant deficiencies in the process.
Accepting that the Tribunal has the difficult task of (a) conducting an inquisitorial process, (b) in accordance with the not always readily comprehensible prescriptions of the Act, (c) with persons whose native tongue is not English, (d) to deal with an interpreter in relation to whose work the Applicants, at times, expressed doubt, (e) to ensure that relevant evidence - and any relevant doubts held by the Tribunal - are put to the Applicants, (f) dealing all the while with the difficult factual and legal issues before it, striking a proper balance between informality and proper process is no easy feat. All that said, the complaints relating to the conduct of the hearing – either individually or collectively – in my view do not fall foul of the need for the “apparently fair process” to which Allsop CJ referred in SZRUI that was their due. That said, it is a border-line case, and it is reasonably arguable that the Applicants have made out their case.
In my view, the hearing was less than perfect. It was certainly not optimal. It should not be taken as a guide for how hearings should be conducted in the future. Indeed, in all likelihood, I suspect that most Australians would not be overly impressed with the processes involved were they to be properly apprised of them, or with the conduct of this particular case. But that is not the criterion here. According to the terms of the Act – labyrinthine, Byzantine and tortuous as it is (to repeat some of the terms that have been used by Justices of the Federal Court of Australia to describe complex Commonwealth statutes) – and relevant authority, the claims of the Applicants, in my view, fall short (even if only just) of establishing the errors for which they contend.
Procedural History & Background
The Application in this Court was filed on 4th June 2012. It listed, in expansive terms noted later in these reasons, four grounds of review: (a) denial of procedural fairness; (b) bias of the Tribunal; (c) the Tribunal failed to understand the nature of the case put by the Applicants; and (d) the Tribunal failed to take account of a relevant consideration.
An extensive affidavit in support was filed by the Applicants’ solicitor. In a number of respects, that affidavit is in the form of submissions in support of what the solicitor says were failings in the hearing process conducted by the Tribunal. Among the complaints to which the solicitor deposed are:
(a)the failure of the Tribunal to telephone two witnesses (a parent from each of the parties) overseas in circumstances where (i) the solicitor had given prior notice to the Tribunal that those witnesses had provided written statements and were on standby to be called; (ii) at the commencement of the hearing, the solicitor applied to the Tribunal to call the overseas witnesses; and (iii) only at the end of the hearing did the Tribunal confirm that those witnesses would not be called;
(b)at the commencement of the hearing, the Tribunal informed the solicitor for the Applicants that he was not to take any part in the hearing;
(c)the Tribunal telling the Applicants on more than one occasion that they were not telling the truth or otherwise informing them of the Tribunal’s doubts about the veracity of the accounts given by the Applicants; and
(d)the Tribunal’s refusal to accede to the solicitor’s application for an adjournment to discuss issues of translation by the interpreter in circumstances where the Wife Applicant had expressed concern about the accuracy of the translation being given, and to address concerns regarding the Applicant’s understanding of the TM’s comments. Later in the proceeding the solicitor again raised the issue of the accuracy of the interpreter; he was told by the Tribunal that it was too late to raise such an objection.
The solicitor’s affidavit annexed to it, among other things, post-hearing correspondence in which the bias of the Tribunal member was raised, and later rejected by the Tribunal. All of this correspondence took place prior to the Tribunal delivering its decision.
The Hearing before the Tribunal
In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (“VFAB”), Kenny J undertook a detailed examination of the hearing that was conducted before the Tribunal in relation to the matter before her Honour.[6] The course that commended itself to her Honour is similarly necessary in the current proceeding.
[6] (2003) 131 FCR 102.
As already noted, the Court has the benefit of a compact disc (“CD”) recording of the hearing before the Tribunal (Exhibit A2), as well as a transcript of it prepared by the solicitors for the First Respondent (“the Minister”). Although not formally admitted into evidence, (a) a copy of it was annexed to an affidavit filed on 18th September 2012 by the solicitor acting for the Minister, (b) a corrected copy was provided to the Court, and (c) in the course of the hearing when the CD recording was listened to in Court, Counsel for both parties regularly referred to the transcript as provided. Acknowledging some infelicities in the transcription, which was noted by Counsel for the Minister, it is nonetheless convenient to use it for current purposes.
According to the timing that is recorded on the transcript, the hearing before the Tribunal took place, via video-conference facilities, and with an interpreter, over 1 hour and 35 minutes. The Applicants attended with their young children. After formalities of swearing in the interpreter and the Applicants, the Tribunal Member (hereafter “TM”) requested that the children be taken outside of the hearing room when evidence was being taken because of the noise from them.
Approximately for the next 6 minutes, the TM explained briefly to the Applicants the nature of their application, and the Tribunal’s function to consider it in the light of the “5 convention reasons.” The TM then stated: “All aspects of that definition [under the Convention] have to be satisfied before a person or an applicant I should say is recognised as a refugee. Any questions regarding the Refugees Convention?” The Applicant Wife said (through the interpreter): “No, I don’t want to ask any questions, I understand everything.”
The TM asked the same question of the Applicant Husband, who he could not then see on the video-link. The Applicant Husband replied in terms the same as his Wife.
For the next 1½ minutes, the TM outlined the process before the Tribunal. He then said (transcript reference: 12:27):
If you have any questions ask me and I will answer them for you and if you don’t understand anything tell me. Are you communicating well with the interpreter?
Both Applicants responded in the affirmative.
Thirteen minutes into the hearing, and for the next 3-4 minutes, the TM noted that the Applicant Wife is the primary applicant, and that she had also raised claims on behalf of her Husband. The TM then said (transcript reference: 13:00) (emphasis added):
I see that you've made a request that I telephoned your family overseas and take evidence from them. I will see how we go with you in the hearing and then I'll determine whether I will take evidence from them or not. I've got the Department file with the protection visa application and the delegate's decision. This file also has the interview you had with the delegate. I have read everything on that file and listened to the interview. I've also got our file with the review application including the 30 odd page submission that was received today from your lawyer so I've read everything on this file as well. Okay so any questions before we begin?
The following should be noted here from, or otherwise concerning this, passage, with further comment/discussion set out later in these reasons.
First, it was accepted that at the time of these comments by the TM, the Applicants’ lawyer was not in the hearing room.
Secondly, the transcript in bold type confirmed that there were two matters then addressed by the TM: (a) the request for evidence to be taken from overseas family members, in relation to which the TM indicated that he would make a ruling later; (b) the TM confirmed that he had read everything on the file. As submitted by the Applicants in this Court, but using my words, given that there were on record statements from both of the witnesses proposed to be called,[7] this was either an inaccurate statement, or the TM forgot about having read them. Given that the Tribunal was on notice about the witnesses, having received the “fax” from the Applicants’ lawyer the day before the hearing, to put it as neutrally as possible, the TM’s statement about having read everything on the file is somewhat surprising and not supported by the facts.
[7] See CB at pp.188-189 & 192-193. The statements were sent to the Tribunal by the Applicants’ lawyer under cover of a letter sent by facsimile dated 20th March 2012, which is at CB pp.182-183.
Following this statement, the TM advised the Applicants that he would begin taking evidence, firstly from the Wife. He asked the Applicant Husband to wait outside, to take the children outside with him, and to send in the Applicants’ adviser/lawyer.
The TM then spoke directly to the lawyer, Mr Chen, then to the Applicant. The TM said (transcript reference 16:48) (emphasis added):
Okay Mr Chen, what we discussed while you were out of the room was how we are going to proceed this afternoon and essentially you have the interpreter for the benefit of the applicant. And essentially how we're going to proceed is that I'm going to take evidence from [the Wife] and then I'm going to talk to her husband.
So … just for your understanding let me explain the role of the advisor during the hearing. The advisor is here to observe the proceedings, he can’t present your case for you. The way the RRT operates is that you have to present your case in your own words. However I will ask your advisor at the end of my conversation with you and your husband whether he has any issues that he wants to address and we'll go ahead and deal with those issues.So please tell me why you don’t wish to return to Pakistan.Give your reply in brief sentences. Allow the interpreter to interpret and then continue until you've provided your entire statement.
Then followed an account by the Applicant Wife that she belonged to a “social group … where love marriage is considered very bad.” She said that her marriage was “outside her family” which was “very shameful for us and is against the law and the Sharia law.” She stated that she and her Husband were from different cultures and regions, she from Akhabar and the Applicant Husband from Kashmir. She started to detail how the relationship between the parties began, but which account was stopped by the TM. The exchange between the TM and the Applicant Wife was as follows (transcript reference: 21:09 & 21:50):
[TM]: … I don’t actually want to hear all the details of your relationship. I'm more interested to know what will happen to you if you go back to Pakistan?
[Applicant Wife]: Okay if I go back to Pakistan, my family has threatened me that whatever I did that was against the cultural and Sharia and they told me that they will present me in front of the gathering and the final decision will be the death penalty.
The Applicant Wife then identified by name a number of those members of her extended family (uncles and cousins) responsible (she says) for threats against her and her Husband.
I pause here to highlight that the Applicant Wife here clearly identified (very early in the hearing - admittedly in general terms) issues that relate to “offences” against (or issues relating to) culture and Sharia law.[8]
[8] The Shorter Oxford Dictionary (Fifth Edition) defines “sharia” as “the Islamic code of religious law, based on the teachings of the Koran and the traditional sayings of Muhammad.” For more detailed consideration, see the informative discussion by M. Abdalla, “Sacred Law in a Secular Land: To What Extent Should Sharī`a Law be Followed in Australia?” (2012) 21 Griffith Law Review 657. I simply note the following from the article summary: “Muslims are obliged to follow the Sharī`a law wherever they live. However, in Australia … the extent to which Sharī`a should be followed is debateable. …… relying on the views of leading classical and contemporary scholars, the article demonstrates that in non-Muslim lands Muslims are only obliged to follow certain aspects of personal status law.”
I note this now because it was submitted during the hearing in this Court that the Applicants did not raise any issue or ground regarding “religion.”
Having earlier stopped the Applicant Wife from presenting the history of the relationship with her Husband, the TM then summarised it in the following terms (transcript reference: 24:35):
My understanding is that you met your husband in 2002, you were engaged in 2005, you were married in 2007 and then you eventually came to Australia in 2008.
This led to questions about the Applicant Wife returning to Pakistan in 2010 for some two months or thereabouts in relation to which the Applicant was asked why there were anonymous telephone threats, rather than simply just carrying out what was threatened.
Upon the Applicant seeking to give an answer, the TM commented that he thought she was misunderstanding his question; he then asked (transcript reference 26:50):
Yes, I think you misunderstand my question, or my point. My point is this - that if anybody wanted to harm you, they have ample opportunity and time to do it, in the times you've spent in Pakistan during the course of your relationship.
So, why didn't they do it while you were there?
The transcript then records the beginning of an answer by the Applicant Wife that includes a reference to her being unable to go outside her house, which is followed by the description “[The Applicant Wife] is speaking.” This then leads the TM to say, a tad brusquely (it seems to me), or at least with a degree of evident frustration (28:27):
I've asked you repeatedly to provide short answers so he can interpret. Do you think you can do that?
It should be remarked that, at this juncture, the TM had requested the Applicant Wife to speak in short sentences on only one occasion, not “repeatedly” as he stated.
The Applicant Wife outlined how she and her Husband responded to the threats in Pakistan, primarily by moving house several times. The TM responded/queried (transcript reference: 29:10):
I reiterate my previous point. I think, if anybody wanted to harm you, from your extended family in Pakistan, they had the time and opportunity to do it while you were there. So, my question is this - why didn't they do it?
The TM then inquired whether the Applicant Wife had read the 31 page submission from her lawyer sent to the Tribunal. She confirmed that she had, as did the TM, who also said that he had read “all that information from the RRT Country Advice relating to so called ‘love marriages’.”
The transcript records next a period of approximately 3 minutes (shown on the transcript as 31:10 – 34.03, the last figure being the duration, thus far, of the hearing before the Tribunal) where the TM explained his understanding of what constituted a “love marriage” and that, in his view, the evidence from the Applicants confirmed, in his view, that the parties did not have a ‘love marriage’.
To this the Applicant responded, pointing out that the parties’ parents initially did not approve of the marriage, and that they were the first to marry outside their family. The TM replied (transcript reference 35:18 – 35:57):
Look, it would really be helpful if you could listen to my comment and address the point rather than just telling me something unrelated. The issue is that you married according to your... with the approval of your parents, so you don't have a 'love marriage'.
I mean, as far as I understand it, a 'love marriage' does not require the approval of every single member of a person's extended family. The critical relationship is between a child and their parents and to follow the parents' wishes.
So whether they agreed or didn't agree at the beginning, in 2005 when they consented to the engagement and in 2007 when they participated in the marriage, then you married with their approval.
The Applicant Wife confirmed that the parties’ parents [ultimately] participated in their marriage, having initially opposed it.
Beginning at 37:30 of the transcript, and for the next three minutes or so (until 40:37) the TM outlined what he said were “several issues with your case.” The first issue was the credibility of the Applicant Wife’s evidence. He said:
The first issue, which I'm going to have to consider is whether I accept you as providing a credible account of your circumstances.
I have some doubts as to whether or not you are credible.
The reason for my doubts relate to on the one hand stating that you were in imminent danger of serious harm, even death for several years and yet nothing really did happen to you.
In the course of this discourse, the TM also said:
The fact that nothing happened to you, and particularly your decision to return to a country where you are claiming to have a well-founded fear of persecution, that raises serious doubts for me as to whether or not you are telling the truth.
The Applicant Wife responded in less than one minute in which she asserted or confirmed the truth of her statement[s]. In response to this the TM said (transcript reference: 41:03):
I'll think about your response. I think that's enough on that issue. Let's go onto something else.
The TM moved to what he described, at a little length (between 41:03 – 48:31 – or just over 7 minutes), as a “family dispute” that did not come within the terms of the Convention. He also gave an account of the facts and principle of what he described as a “famous case” which he did not otherwise identify by name or court, but which was acknowledged in the hearing before this Court as Minister for Immigration and Multicultural Affairs v Khawar.[9] At the end of this discourse, the TM said (transcript reference 46:47):
So even if we are able to overcome these doubts that I have about your credibility and if I were to accept your entire, all your claims, I still think there would be difficulty finding that your circumstances fall within the criteria of the Refugees Convention.
I don't actually have anything else to say. Do you want to say anything before I talk to your husband?
[9] Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.
At this juncture (beginning at transcript 48:31), and with no response from the Applicant, the following exchange took place with the Applicants’ lawyer:
Mr Chen: So Senior Member can we, I'm not sure exactly whether, I'm not sure whether she understood what you were trying to say earlier.
TM: Alright Mr Chen let me tell you, I'll take evidence from the other applicant and then we'll all get together and discuss these issues again as a group.
Mr Chen: Yeah I was just going to ask whether we should have a short adjournment and I'll asking her the questions I'm trying to understand what position that you're trying to point out better to, and then come back, let her understand what was your issue and then come back to provide you with numbers.
TM: I think I'd rather, I think I'd rather do it during a hearing and then we, then I know whether she's understood or not as you say.
Mr Chen: Sure, sure, sure.
The TM then called in the Applicant Husband, with the Applicant Wife going outside to look after the children.
It might be observed that one immediate and obvious difficulty is how the Tribunal can satisfy itself that an applicant understands, or does so sufficiently, the matters being put, and not least in relation to the requirements of the Convention and or the details of any un-named or unidentified “famous case” upon which the Tribunal relies, or intends to do so.
Upon the Applicant Husband entering the hearing room the TM said (transcript reference 50:16):
Hello sir thank you for waiting. What I've just done with your wife is discussed with her why you do not wish to return to Pakistan and what you think will happen to you if you went back. So I'd like you to give me your reasons for not wishing to go and live in Pakistan. Short sentences.
There follows a series of exchanges in which the TM sought to obtain information, among other things, about who had sought to kill the Applicants or who had threatened to do so. Then the TM said (transcript reference 55:43)
Now my understanding is that this dispute from your wife, this dispute about the marriage started even before you were engaged. Your wife's evidence is that her uncle wanted her to marry his son and when her father refused then that led to strife within the family? What I actually also said to your wife is that despite all these ongoing problems that were apparently happening within the family, there was a substantial period of time when everybody would have been aware that you were together and if they wanted to kidnap or hurt your wife they could have done it while she was living or visiting India.
The Applicant Husband queried the TM about the reference to “India”, which was quickly corrected and for which the TM apologised for possibly misleading the Applicant Husband.
The TM explored with the Applicant Husband how long the Applicant Wife spent in Pakistan during 2010. The Husband confirmed that the period of his Wife’s time in Pakistan was two months. Following this the TM said (transcript reference: 1:00:02):
Okay she went on the 1st of October 2010 and she came back on the 10th of December 2010, that’s pretty close to 10 weeks – it’s not really the point. The point is this sir. Your wife is claiming like a substantial number of years of relentless harassment and threats of imminent danger and life threatening harm. My point is this - if there was a serious threat to her, there was sufficient opportunity and time for those threats to have been carried out while she was in Pakistan. And a similar situation would apply to you too.
The Husband said that during his Wife’s stay in Pakistan in 2010 she was not able to go out of her house.
In answer to questions as to why the Wife returned to Pakistan for the two months in 2010 the Husband replied, among other things, to the effect that ‘they thought’ that maybe the extended family had changed their mind and would no longer harm the Applicants. He was challenged about this account. The TM then said (transcript reference 01:04:04 – 01:07:05)
Sir I'll consider your explanation but I may find that you went back because there is nothing to fear about going back there. What I indicated to your wife is that I'm going to have to think about the credibility of your claims. Your wife claims to have endured many years of threats from her extended family but in reality nothing actually - none of those threats were carried out. It is extremely significant for a person claiming to have a fear of persecution in a country to have fled that country because they faced imminent serious harm. It really undermines those claims if they then go back. In fact most countries in the world, if anybody is recognised as a refugee and they go back to their country where they claimed to have fled, their refugee status is stripped away from them. That’s not really a point because it doesn’t apply to us but - I do have some doubt as to whether the threats happened and whether they were real or whether your wife has exaggerated the situation because you are seeking to get a protection visa. Do you want to say something?
The Applicant Husband responded briefly, noting that what the couple did was “against Islam and we will never let you do that” (transcript reference: 01:07:05).
The TM noted to the Applicant Husband, as he had done with the Wife, that there remained the issue as to whether the matters complained of formally came within the terms of the Convention. To this the Applicant Husband said, and the TM responded (transcript reference 01:08:46 – 01:08:52; emphasis added):
It comes under the religion because she is thinking that what happened is due to that religion.
TM: That’s not what she said. She said it was because she was a member of a particular social group, and because of her nationality.
It will be recalled that the Applicant Wife had said, as noted earlier in these reasons (at transcript references 19:29 & 21:50), that her marital relationship is “against the law and the Sharia law”, and “whatever I did that was against the cultural and Sharia and they told me that they will present me in front of the gathering and the final decision will be the death penalty.” Either the TM forgot the earlier evidence of the Applicant Wife, misunderstood it, or did not appreciate the import and effect of the Applicant Wife’s brief but significant references to “Sharia law”, which must, in my view, necessarily be understood as a reference to relevant religious traditions and practices. Certainly, at this point in the hearing (as recorded in the transcript), the TM was not ‘across’ the issue in relation to the Wife’s concern regarding “Sharia law.”
Again the TM highlighted to the Applicant Husband his concern that the claims of the Applicants did not come within the principles of the Convention but were, essentially, “just disputes between people.” To this the Applicant Husband said (transcript reference 01:13:30):
I have told you that this problem was not a family problem, but actually this was a religious, this was related to religious. Whatever step I have taken, it was against their religion, it was against their religion and it was, yes. Whatever step I have taken, this is against Islam and they will present me in front of the gathering and the decision will be... they will kill me.
When asked by the TM why the Applicants had not [yet] been killed, the Applicant Husband said they “didn’t catch us up till now…”
After a further brief discussion about how long the Husband had lived in and travelled around Pakistan with his Father, the TM advised that there would be a short break, after which there would be a discussion with both Applicants.
After a break of just over 10 minutes or so, the TM summarised the position as he saw it. He said (transcript reference: 01:18:29):
Ok, so um, basically I've taken evidence from both of you now. You've provided the same claims. You're claiming that your marriage has not been accepted by the extended family and they will seek to harm you for marrying outside of the custom and traditions of the family.
Before he could proceed further the Applicant Husband sought to clarify who the perpetrators of the [alleged] threats were, namely his first cousins and his uncle. To this the TM responded, in part (transcript reference 01:20:11):
Yeah, maybe it's just a language thing. Immediate family is parents and grandparents and children, extended family is virtually everybody else.
There followed a period of somewhat disjointed speech between the TM, the translator and the parties, with one exchange recorded as the interpreter saying “I couldn’t hear, translate interpret your statement so remember if you want to repeat.” Following this comment, the TM said (transcript reference 01:21:50):
Alright, listen, I think we're going to have to concentrate on this, we can't just sit here indefinitely. Where is the advisor? Is he in the room or out of the room? Alright, ok, I don't have anything else to say. Any of you? Applicants or advisor, if you have something to say, this would be the time to do it. Please speak in short sentences so that you can be translated.
Then at transcript reference 01:24:13-38, an issue arose where the work of the interpreter was questioned, and the Applicant Wife confirmed that the interpreter had not been interpreting “properly”. To this the TM said (transcript reference: 01:24:44):
… I told you at the start whether you were communicating with the interpreter. I told you to tell me if there were any issues. You can't tell me two hours into the hearing that you've now got issues. I'm sorry about that.
The TM evidently did not distinguish between there having been no interpretation issues earlier in the hearing and later. In my view, an applicant before the Tribunal is permitted to raise any issue regarding interpretation at any stage of the hearing. Otherwise, interpretation would be a nonsense. The TM cannot preclude an applicant from raising such issues when-ever they arise in the course of a hearing.
Somewhat elliptically the transcript records the interpreter as saying (seemingly interpreting on behalf of the Applicant Wife): “I'm not saying about whatever he did in the last long time, but I am saying whatever he said this time, not...” To this the TM said (transcript reference: 01:25:15):
Alright, look, final, ok I get it. Final comments from you, madam and your husband and then I want to hear from your advisor and then we're going to start wrapping this hearing up. And if you want to be interpreted accurately, exactly as you are, exactly what you are saying, then you'd better keep to short sentences. I've asked you repeatedly and I have been ignored throughout the hearing. Do you have any final comments?
After the Applicant Wife started to respond, the TM commented with evident irritation (transcript reference: 01:26:27): “Madam. Please. Do you understand the concept of short sentences? And then you complain that he can't remember what you're saying.”
The Applicant Wife summarised her position, such as being kept “as a prisoner in my house…” (transcript reference: 01:27:27). The TM thanked her for her comments and asked the Applicant Husband for his concluding comments, again emphasising the need for “short sentences” to aid translation. The Husband did so, in somewhat rhetorical questions to the TM, which I need not set out here.
The TM then asked the Applicants’ adviser if he wanted to add anything. The adviser asked that written submissions be provided. There was some bargaining over how long for those submissions, with the TM determining that two weeks was longer than usual but would be granted, rather than the four weeks sought.
The TM then said (transcript reference 01:32:38) (emphasis added):
I'm not going to ring the parents in Pakistan and in South Africa. If you want me to consider evidence from them, get them to put something in writing and submit it to me when you make your submission.
It will be recalled that the Applicants’ solicitor had already provided the Tribunal with statements from their parents. On its face, the TM either was unaware of them or otherwise had forgotten their existence, although they had been provided to the Tribunal only the day prior to the hearing. Presumably, in the light of his comments earlier in the hearing, this was his “determination” regarding calling the family witnesses relied upon by the Applicants. He determined that he would not do so. At the time, he gave no reason for not doing so.
After summarising the timetable for written submissions and associated matters, the hearing before the Tribunal concluded. According to the transcript provided, the duration of the hearing was approximately one hour and thirty-five minutes.
Grounds of Review
For ease of reference I note each of the grounds of review set out in the Application filed on 4th June 2012. The Applicants there assert that the Tribunal:
(a)failed to accord the Applicants procedural fairness by refusing to take evidence from the Applicants’ Fathers;
(b)failed to accord the Applicants procedural fairness by refusing to allow an adjournment to address a problem with the accuracy of the interpreter;
(c)failed to accord the Applicants procedural fairness by refusing to allow them to be properly represented by their solicitor;
(d)was biased;
(e)failed ‘to understand the nature of the case’ put by the Applicants;
(f)failed to take into account a relevant consideration, being the evidence of Mr Khan, a lawyer from Pakistan; and
(g)made findings for which there was no evidence, being that the Applicant Wife’s extended family did not intend to harm the Applicants.
Submissions & Consideration
It will be seen that there are three grounds of review that relate to alleged lack of procedural fairness. The first ground is: the Tribunal failed to accord the Applicants procedural fairness by refusing to take evidence from the Applicants’ Fathers.
The Applicants contend that with (a) the nomination of the Fathers as witnesses (on 8th March) and (b) the filing of statements from those witnesses (on 20th March), the Tribunal was under a duty to have regard to the oral evidence from the witnesses nominated. While the Applicants acknowledge that s.426(3) of the Act does not require the Tribunal to hear the oral evidence, the Tribunal must have regard to “the Applicants wishes but is not required to obtain evidence (orally or otherwise) from a person named in the Applicants’ notice.”
The Applicants also rely upon, among other cases, the Full Court decision in Minister for Immigration and Citizenship v SZNSP, where the joint judgment of North and Lander JJ said, at [38] and [39]:[10]
[38] The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 [2003] HCA 30; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 [2003] HCA 30; 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
[39] On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
[10] Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485.
The Applicants also relied upon an earlier Full Court decision, W360/01A v Minister for Immigration and Multicultural Affairs.[11] In that case, at [30] and [31], the Court held that by failing to allow the Appellant to call a witness to testify about the Appellant’s illegal departure from his home country, the Tribunal “so misconducted itself as to have fallen into jurisdictional error”.
[11] W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449.
Relying upon the High Court decision in Applicant VEAL of 2002,[12] the Applicants further said that the Tribunal had a duty to carry out an inquiry into the relevant facts so as to arrive at the correct “or preferable decision” and not to operate in the manner of an adjudicator or an arbitrator in an adversarial context. What the High Court in fact said, at [26], was:
… The Tribunal was not an independent arbiter charged with deciding an issue joined between adversaries. The Tribunal was required to review a decision of the Executive made under the Act and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made. And the Tribunal had to decide whether the appellant was entitled to the visa he claimed.
[12] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 225 CLR 88 at [26].
It will be observed that there is no reference in the passage cited to “preferable” decision, as submitted by the Applicants.[13]
[13] “Correct or preferable decision” is noted by Gageler J in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [93] and the authorities there cited.
The Applicants also noted the Tribunal’s responsibilities as set out in ss.420 and 422B of the Act, which I need not set out. It is sufficient to note that s.420 outlines the modus operandi of the Tribunal, with an accent on the hearing being “fair, just, economical, informal and quick.” Section 424B is an exhaustive statement of the natural justice hearing rule.
The First Respondent submitted that the Applicants have misconstrued the Tribunal’s decision and conduct. The First Respondent submitted that it was clear “that the Tribunal did not refuse to consider any supposedly corroborative evidence from the Applicants’ Fathers” (emphasis in original). Rather, the First Respondent submitted that the Tribunal made plain at the end of the hearing that it would consider any written evidence instead of calling the overseas witnesses.
In my view, while I accept the Applicants’ contention that the Tribunal member clearly was either unaware of or had forgotten that statements from the Applicants’ Fathers were on the Tribunal file, the fact that (a) the TM said that he would consider anything in writing later, and (b) clearly did so, from a procedural perspective, this does not give rise to jurisdictional error. While the hearing, in my view, was a less than optimal one, the failure here (such as it might be) on the part of the TM was later remedied by the consideration of the statements referred to.
The second ground of review is that the Tribunal failed to accord the Applicants procedural fairness by refusing to allow an adjournment to address a problem with the accuracy of the interpreter.
Respectfully, the Applicants seem to conflate two aspects here: on the one hand, there was an Application for an adjournment which is said to arise out of a concern expressed regarding the quality of translation being provided by the interpreter. The written submissions on behalf of the Applicants set out certain extracts from the transcript. In particular, the Applicants emphasise the TM saying to the Applicant wife that: “You can’t tell me two hours into the hearing that you’ve now got issues. I’m sorry about that.” On the other hand, the Applicants then contend that the extracts quoted (to one of the two quoted I have referred) in fact indicates that the member has made up his mind before hearing any of the evidence, and was simply ‘going through the motions’. This latter aspect, it seems to me, really relates more directly to the allegations of bias which are considered below.
The First Respondent submitted that there was, and is, no evidence that there was any problem with the interpreter. Secondly, it was further submitted that the transcript of the hearing makes plain that the application for an adjournment was not so much in relation to the interpreter but rather that the Applicant wife did not understand the issue being put by the Tribunal and that her solicitor wished to discuss her understanding of relevant matters that were being put to her. It was also suggested or presumed that in any such discussions, the Applicant’s lawyer would be speaking with the Applicant wife in English. It was finally submitted that, at a factual level, this ground of review has no substance.
In my view, it is more than arguable that the difficulty that was encountered at the relevant stage of the hearing (transcript reference: 48:31 – 49:20) related both to matters of interpretation as well as to the Applicant Wife’s understanding.
A recent, detailed discussion of whether an adjournment should have been granted (albeit in a different context to the present matter) is set out in the judgments of the High Court in Minister for Immigration and Citizenship v Li.[14] It is sufficient to note the following from that decision.
[14] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225.
First, in the course of discussing the exercise of the Tribunal’s discretion in the context of an application for an adjournment, the plurality (Hayne, Kiefel & Bell JJ) said, at [82]:
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”
Then, Gageler J said, at [94], [97] and [98] (internal citation omitted):
[94] Nothing in Pt 5, or elsewhere in the Act, excludes the implication that the MRT is to act reasonably as a condition of the performance of its overriding duty to review a decision. Nor does anything exclude the implication that the MRT is to act reasonably as a condition of the performance of its procedural duties and of the exercise of its procedural powers.
[97] Their combined effect is to require that the MRT, in performing its duty to review a decision, seek to act: in a way that is “fair and just;” in pursuit of the objective of providing a mechanism of review that is “fair, just, economical, informal and quick,” and according “substantial justice and the merits of the case.” Their “mere erroneous application” does not amount to a failure by the MRT to comply with a requirement essential to the valid performance of its duty to review a decision; but their “neglect” does. Neglect in the relevant sense need not be the product of bad faith; it can be the product of unreasonableness.
[98] The MRT does not fail to perform its statutory duty to review a decision merely because the manner of its performance of a procedural duty or its exercise or non-exercise of a procedural power might be assessed in the result not to measure up to one or more of the requisite statutory exhortations or aspirations. The MRT does fail to perform its statutory duty to review a decision where: (i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the MRT in fact did; and (ii) that unreasonableness, or neglect, on the part of the MRT is shown to be material to the outcome of the review that the MRT has undertaken in fact.
Having regard to (a) how the hearing was conducted, (b) the quite narrow scope of the issues in dispute, and, perhaps most importantly, (c) the discussion between the TM and the Applicants’ lawyer at the time, and (d) the opportunity later afforded to the Applicants’ lawyer to provide written submissions, the risk of prejudice to the Applicants was sufficiently ameliorated or remedied by the opportunity later afforded to address the Tribunal in written submissions. Accordingly, this ground of review is not made out. Further, as already indicated, there appeared to be some level of acquiescence on Mr Chen’s part (on behalf of the Applicants) in the way the TM dealt with, or proposed to deal with, the issues raised by the Applicant Wife late in the hearing.
Third ground of review is that the Tribunal failed to accord the Applicants procedural fairness by refusing to allow them to be properly represented by their solicitor.
The Applicants contend that Part 7 of the Act contains no prohibition or restriction of any kind on an Applicant being represented before the Tribunal and the nature of the participation of the representative. The Applicants’ submissions refer, in part, to a policy document issued by the Tribunal which, it is submitted, seeks to limit the right of representation in a very substantial way. Otherwise, however, there is no reference to or use of this document. In such circumstances, with no other use made of it, it is not clear why it is part of the submissions.
After repeating a section from the transcript of the hearing, in which the TM outlined the process to be undertaken (primarily for the Applicants to give evidence themselves and that their evidence cannot be presented by their advisor) the TM referred specifically to him asking their advisor at the end of the hearing to address any issues that he may wish. In short, the Applicants contend that excluding a representative without “good cause” constituted a denial of natural justice.
The First Respondent submitted that, as with the previous ground, the claim was factually misconceived. The First Respondent contended that at no stage did the Tribunal exclude or refuse to permit the involvement of the Applicant’s solicitor. The First Respondent further submitted that the transcript shows that the solicitor intervened at various times during the hearing and made submissions that were considered by the Tribunal. While it was acknowledged that the solicitor was outside the hearing room at different times, there is no evidence (a) why this was so, and (b) that it was at the direction of the Tribunal member.
Again, for reasons previously given, because the Applicants were given an opportunity to put further written submissions to the Tribunal (and submissions were in fact provided after the hearing) it is difficult to see how the Applicants were prejudiced in any relevant procedural sense. Otherwise, I accept the submissions on behalf of the First Respondent.
The next ground of review asserts bias on the part of the Tribunal.
The tests for apprehended bias are set out in the judgments of Kenny J in VFAB and by the Full Court in SZRUI, noted earlier in these reasons.[15]
[15] Otherwise, see the discussion of relevant principle regarding ‘apprehended bias’ in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
After noting that occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias (Kenny J in VFAB at [81]), and after having noted also that sustained ill-temper can give rise to a reasonable apprehension of bias, the particulars of the bias alleged against the TM are: (a) pre-judgment of the merits of the application before hearing any evidence; (b) having formed an adverse view of the Applicants’ credibility “before hearing any evidence”; and (c) treating the Applicants in a rude and offensive manner at the hearing.
Having referred to that section of the transcript where the TM said – “I have some doubts as to whether or not you are credible” – the Applicants submitted that the member was not open to being persuaded by evidence to the contrary, and that he conducted himself throughout the hearing in a manner that made his bias clear to the Applicants. It was submitted that the TM had a closed mind, evidenced by (inter alia) the following comment: “I’ll think about your response. I think that’s enough on that issue. Let’s go on to something else.”
The Applicants contend that the Court is entitled to infer apprehended bias on the basis of the brevity of the “member’s attention to the issue” which also evidenced, it is said, because he had already made up his mind and was not interested in pursuing it further.
The Applicants also contend that the TM’s use of the word “wish” in relation to the Applicants’ return to Pakistan (as opposed to ‘could not’ or ‘would not’) was somewhat pejorative and “was intended to connote a mere choice on behalf of the Applicants [which was] indicative of the member’s pre-judgment of the matter”.
By reference to certain designated parts of the transcript, the Applicants submitted that (a) the member’s comment (on one occasion) was “inaccurate and sarcastic”; (b) by reference to another part of the transcript, that the TM’s comments were “off the point and appeared calculated to cause discomfort and offence to the first Applicant”; (c) that other comments indicated the TM’s misconception of the issue before the Tribunal, and (d) finally by reference to four particular occasions (not least in relation to asking both Applicants at different times to give their answers in short sentences), all indicated the TM’s offensive conduct to the Applicants.
It was further suggested that the Applicants were repeatedly cut off from answering questions, there were expressions of irritation regarding the noise from the Applicants’ children, and that otherwise the TM’s regular request for short answers “betokens his aggressive and condescending manner that unfolded throughout the hearing”. The Applicants also submit that the speed with which, and the TM’s insistence upon, a speedy conclusion of the hearing confirmed his emphasis upon haste and pre-judgment.
The First Respondent submitted primarily that the central difficulty with the Applicants’ submissions is that they fail to appreciate that the Tribunal was only required to keep an open mind, not an empty one.[16] Further, the Tribunal was required to inform the Applicants during the hearing of issues which concerned it.[17]
[16] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71].
[17] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. See also the discussion in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 225 CLR 88.
It was submitted that the Tribunal expressing “doubts about credibility” is nothing more than informing the Applicants about issues and inviting comment.
It was submitted also that in relation to the distinction between “wish” to return as opposed to “could not” return to Pakistan was nothing more than a semantic distinction.[18]
[18] Among many places, see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pp.271-272, which refers to ensuring that the transcript of a hearing (or reasons) not be read with an eye fine-tuned to detecting error.
The First Respondent rejected the complaints in relation to the TM conducting the hearing in a manner that was deliberately rude and designed to cause offence. While accepting that irritation was expressed at different times, a fair reading of the transcript would not support the contentions made by the Applicants.
Finally, the First Respondent submitted that the Applicants have not filed any evidence that there was a problem with the interpreter.
Respectfully, I accept the submissions of the First Respondent which address in sufficient detail the complaints made by the Applicants. Moreover, compared to the facts and circumstances addressed by Kenny J in VFAB, and giving every allowance that (a) the Applicants were unfamiliar with the processes of the Tribunal, (b) the Applicants are genuinely concerned about their plight and being able to remain in this bounteous land, and (c) the hearing before the Tribunal was less than optimal and took the Act’s references to “economical” and “quick” to new levels (this is not said in any praise-worthy sense), the facts and conduct of the hearing was not, in my view, offensive. As I have said, it was less than optimal. There were expressions of exasperation by the TM in the course of it. But for all of the flaws exhibited by the TM, there were none, it seemed to me, that were intended to give offence to the Applicants.
The next ground of review asserts that the Tribunal failed ‘to understand the nature of the case’ put by the Applicants.
In relation to this ground, the Applicants contend that their complaint to the principal member of the Tribunal at the end of the hearing by letter dated 23rd March 2012 in which complaint was made of the TM’s alleged bias in the conduct of the hearing is a further ground of complaint.[19]
[19] The letter is at CB pp.235-237. The response of the Tribunal is at CB pp.240-241.
Somewhat curiously, the Applicants contended (at par.82 of their “Outline of Argument”) that “to communicate their complaint to the presiding Member, before he made his decision, simply heightened their concerns about the presiding member’s bias”.
In response, the First Respondent said that because the TM addressed in its reasons a complaint of bias made by the Applicants is not properly a ground sufficient to establish a claim of bias. In other words, it was submitted that “it cannot be the case that an Applicant can manufacture bias by making an allegation of bias”.
While I accept it to be somewhat concerning that the principal member would discuss a claim of apprehended bias with the TM concerned, it is nonetheless somewhat analogous to an application for recusal being made first and foremost to the Judge against whom an allegation of bias is made. In the circumstances outlined here, and on the basis of the authorities referred to, in particular the High Court decision in Michael Wilson, this complaint is not made out.[20] An assertion of bias is insufficient to establish that there is in fact an apprehension of bias according to the relevant test that a ‘fair-minded lay observer might reasonably apprehend that the judge [or relevant official] might not bring an impartial mind to the resolution of the question to be decided’ consideration of the circumstances.’ In Ebner, the High Court observed, at [8], that the apprehension of bias principle “admits of the possibility of human frailty.”[21]
[20] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
[21] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The next ground of review contends that the Tribunal failed to understand the nature of the case put by the Applicants.
The complaint of the Applicants here relates to what is perceived to be a contest between the Applicants’ contentions regarding death threats from extended family members, and the contention that the TM regularly appeared to misunderstand that the claims, for Convention-related purposes, related to whether or not the Applicants were in a “love marriage”. As set out in their submissions, the Applicants contended that their case “was not that they had a ‘love marriage’ in the sense that they had married without parental consent, it was always their case that marriages were a matter for the extended family or tribe and that the first Applicant had refused a proposal of marriage from the son of the tribal leader in order to marry the second Respondent [sic – second Applicant]. It was this fact that put her in danger.”
Even on the Applicant’s written submissions, it seems to be accepted (see for example paragraph 88 of the submissions filed on 29 January 2013) that the TM ‘finally [or eventually] grasped’ the nature of the case.
The First Respondent noted that the Tribunal’s decision makes clear that it understood the Applicants’ claims and that they turned on the alleged conduct by the extended family, rather than any perceived problem in relation to the Applicants’ parents and whether or not relevant approval had come.
I accept the submissions of the First Respondent. Indeed, as just indicated, the Applicants’ submissions of January 2013 confirmed that the TM finally grasped the nature of the case. In the light of such a submission, I do not see how this ground of review can succeed. Accordingly, this ground of review is not made out.
The Applicants next contend that the Tribunal failed to take into account a relevant consideration, being the evidence of Mr Khan, a lawyer from Pakistan
This penultimate ground of review alleges the Tribunal’s failure to take into account a relevant consideration, namely, the failure to take into account the evidence of Mr Khan concerning the role and power of a tribunal known as the “Jirga”.
The Applicants contended that the Tribunal showed no knowledge of the existence of the report from Mr Khan at the hearing. Properly, they confirmed that there is reference to his evidence in the Tribunal’s reasons for decision (reasons at [67]). It was then submitted that the Court is entitled to infer that the Tribunal had no regard to it. It was further submitted that the evidence of Mr Khan was relevant because it corroborated the Applicants’ concerns about the role and potential threat posed by the Jirga if they returned to Pakistan.
The First Respondent submitted that the evidence of Mr Khan only set out general background information about marriage and the Jirga. It was said to be similar to general country information. The First Respondent pointed out that the Tribunal had clearly read the statement based on what is set out at [68] of the reasons.
Further, the First Respondent relied upon comments made by Allsop J (as his Honour then was), with whom Heerey J agreed, in Paul v MIMA, where His Honour confirmed that a tribunal is not required to refer expressly to, or grapple with, all parts of the evidence put before it.[22] In that case, Allsop J distinguished between failure to refer to a piece of evidence at all that was materially relevant, and some rather more passing reference to it. The latter is the case here.
[22] Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396.
Given that the reasons of the Tribunal refer specifically to the evidence of Mr Khan, in my view the contention cannot be sustained that there was a failure to consider his evidence.
The final ground of review relates to the Tribunal making findings for which there was no evidence, being that the Applicant Wife’s extended family did not intend to harm the Applicants.
This ground of review claimed that there was a finding of fact that the extended family intended no action against the Applicants. The Applicants contended that there was no evidence to support such a finding, and in fact there was evidence to the contrary.
The First Respondent contended that there was relevant evidence before the Tribunal to make the finding it did, not least being the Applicants’ “significant delay in making the application”, the Applicants’ return to Pakistan in 2010 (without any adverse action taken against them), and “the length of time of their relationship and the lack of any harm in that very extended period of time…”
Secondly, the First Respondent submitted that the finding adverse to the Applicants was merely a corollary of the Tribunal’s adverse credit finding, namely that their claims were fabricated. The Respondent further submitted that because much, if not most, of the Tribunal’s finding related to issues of credit, those are matters solely for the Tribunal and, certainly in the current circumstances, cannot and should not be the subject of any review by this Court.
Further Submission & Resolution
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court said, at [25]:[23]
Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that "what is required by procedural fairness is a fair hearing, not a fair outcome". As Brennan J said, in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
[23] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
The Court then said, at [26]:
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.
In my view, for the reasons already given, and in the light of the detailed instruction from the Full Court in SZRUI, there was compliance at the hearing in this matter with the procedural requirements under the Act.
I do not accept the Applicants’ further submissions that, other than to change the names and country of origin, there are few factual differences between the facts of this case and that in SZRUI. Respectfully, the conduct of the hearing in this matter, for all its relative brevity and the flaws mentioned, falls short of the problems identified by the Full Court in SZRUI.
As problematic as the hearing was, of signal importance was the opportunity, which was taken by the Applicants, to provide detailed further written submissions to the Tribunal after the hearing. It is also of some significance that the Applicants’ lawyer attended the hearing, albeit that he was not always present in the hearing room. He was not precluded from intervening in the hearing, and he did so. And following discussion – however brief – with the TM, he acceded in the course proposed by the TM.
In all of the circumstances, the Application must be dismissed.
The parties are to provide written submissions, of no more than two pages, on the question of costs within 21 days of the date of these reasons. The issue of costs will be determined on the basis of the written submissions.
I certify that the preceding one hundred and forty-six paragraphs (146) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 20 December 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
-
Natural Justice
-
Jurisdiction
-
Standing
22
3