DNB16 v Minister for Immigration

[2018] FCCA 1045

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1045

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal member should have recused herself – whether apprehended bias – impermissible merits review – whether failure to provide procedural fairness – application dismissed.

Legislation:

Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth), ss.36, 359A, 359AA, 424A, 424AA, 425

Migration Regulations 1994 (Cth), Schedule 2

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Bainton v Rajski (1992) 29 NSWLR 539
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant: DNB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 401 of 2016

Judgment of: Judge Heffernan

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Adelaide

Delivered on: 30 May 2018

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Ms C Stokes

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent in the amount of SIX THOUSAND DOLLARS ($6,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 401 of 2016

DNB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeal Tribunal (‘the Tribunal’) that affirmed an earlier decision of a delegate of the Minister.  That decision refused to grant the applicant a Protection (Class XA) visa (‘the visa’).

2. The applicant has filed an application that identifies eight grounds of review.  Those grounds are as follows:

   “1.That the Tribunal has committed a jurisdictional error by deciding the review application filed by the applicant on the basis that she was not entitled to Complementary Protection Visa especially when the applicant had specifically pleaded that her life was in danger should she be forced to go back to her home country.

   2.That the Tribunal has committed a jurisdictional error as the member hearing the matter should have re-cused from the case especially when the applicant had raised an objection right in the beginning that she was not going to get any justice from this member and had an apprehended bias.  The applicant had specifically pleaded “Also, with due respect to the presiding officer, I am of the opinion that I will not get a fair hearing before her and therefore please change my presiding officer and assign my case to some other member.  This member had made some uncalled for and derogatory remarks against the character of one of my friend, balwinder kaur who had subsequently lodged a protest against this member. To ensure that I get a just and fair hearing. I need to have all the relevant documents before me. In these circumstances, I humbly pray that my hearing date be postponed after the date when I receive my file under FOI from DIBP and also please change the member who has to decide my case”.

   3.That the Tribunal committed a jurisdictional error by not adhering to the principles of equity and fair play.  The member herself decided that she was going to hear the case.  In all fairness, the member should have placed the matter before the Registrar of the AAT to decide especially when an objection was raised against the member hearing the matter alleging lack of impartiality.

   4.The Tribunal failed to comply with s359A of the Migration Act 1958

   Particulars:

   The Tribunal committed jurisdictional error by failing to comply with s359A of the MigrationAct1958.

   The Tribunal had to give clear particulars of the information to the applicant, and invite the applicant to comment on or respond to the information, under section 359AA. If this was not done then it was incumbent on the Tribunal to give an opportunity to the applicant and provide clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)     ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)       invite the applicant to comment on or respond to it. AND

   (2)The information and invitation must be given to the applicant:

   (a)     except where paragraph (b) applies--by one of the methods specified in section 379A; or

   (b)     if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   The Tribunal committed jurisdictional error by not providing any particulars of the provisions, evidence, regulations and facts which were taken into consideration while affirming the decision of the delegate. It was incumbent on the Tribunal to do that especially because of the fact that that the application was lodged and argued by the applicant without any legal help from a lawyer or a migration agent.

   5.That the Tribunal has committed a jurisdictional error by not putting the clear particulars of the information to the applicants and also never invited the applicants to comment on or respond to, either orally or in writing to the said information.  Resultantly, the applicant lost their right to comment ·on the information under Section 359A by way of methods prescribed under Section 379A.

   6.That the Tribunal has committed jurisdictional error in not giving the Applicant the information.  The applicant had specifically made a request under the Freedomof InformationAct to supply her the hard copies of the documents and the record pertaining to the AAT and the department’s file as she did not have an access to the computer.  However she was never supplied with the copies of the record which was eventually used against her at the hearing. Thus the information was not clear and in material particular. The Tribunal did not comply with Section 359AA as it did not explain what an opportunity to respond entailed; that is, it did not explain that a response could be in writing, such that it could have offered an adjournment to go and make their own decision and explore their options especially when there was no migration agent involved in the hearing process, to that adverse information and provide a meaningful response.  In the present case the Tribunal even failed to give basic information to the applicants.

   7.The Tribunal made a jurisdictional error by not adhering to the procedure prescribed under Section 359AA , especially the following:

   (a)     the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so the Tribunal must:

   (i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)     orally invite the applicant to comment on or respond to the information; and

   (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   None of the above was followed at the time of hearing and therefore all the proceedings at the hearing and thereafter are vitiated and cannot sustain in law.

   8.That the Tribunal committed a jurisdictional error as the Tribunal had been guilty of “apprehended bias”.  The Tribunal made totally uncalled for remarks that parents of the applicant were “still alive” when the applicant pleaded that she feared harm along with her parents.  This would necessarily mean that the Tribunal wanted the parents of the applicant to die first so as to prove the credibility of the statement made by the applicant that she feared for her life along with her parents who were hiding for a long time in their home country. The Federal Circuit Court has recently held in Singh & Ors v Minister for Immigration & Anor (2016) FCCA 2663 that the Tribunal will be guilty of apprehended bias When, before the Tribunal has even heard all the evidence, it goes beyond stating a preliminary view, and expresses instead a concluded view in relation to matters that are fundamentally important to the application. Or when the Tribunal member makes statements that indicate she/he has made up her/his mind on the fundamental issues prior to the conclusion of the hearing. Or when the statements made by the Tribunal member go beyond simply “testing” the applicant’s evidence and express conclusions and findings.

   This is what has exactly happened in the present case.  A bare perusal of the decision made by the Tribunal would clearly show that the member had made up her mind on all the issues before even hearing them.  Even otherwise, the member was not likely to be impartial especially when objections were raised right in the beginning alleging lack of impartiality.”

   (Re-produced verbatim)

3. The applicant appeared before me, unrepresented, and with the assistance of an interpreter.  On 1 March 2017, a Registrar of this Court made orders giving the applicant leave to file and serve such further material, including transcript of the hearing before the second respondent if she sought to rely on it, by 28 July 2017.  The applicant was also ordered to file and serve an outline of submissions at least 10 business days prior to the hearing.  The applicant did not file and serve any further material and relies on her initial affidavit which was filed at the time of the initiating application.

4. She has also indicated that she relies on the material contained in the Court Book.  On the day of the hearing, the applicant handed to the Court a written outline of submissions that she asked the Court to consider.  I have read that document.  It seems that a copy of the outline of submissions was provided to the solicitor for the first respondent some hours prior to the hearing. 

Background

1. The first respondent has helpfully summarised both the factual background and the Tribunal hearing in its own outline of submissions.  I do not understand the contents of that summary to be a matter of dispute and I have accordingly paraphrased it below. 

2. The applicant is approximately 29 years old.  She is an Indian citizen and originally arrived in Australia in about 2009.  At that time she came here with her husband and held a student visa.  Both she and her husband applied for graduate visas in 2011.  Those applications were refused by a delegate of the Minister.  She applied for a merits review of that decision and the Migration Review Tribunal affirmed the original refusal at some time in 2013.[1]

   [1]     Court Book (‘CB’) p 169.

3. In December of 2013, the applicant and her husband both applied for protection visas.  They withdrew those applications in June 2014.  Since that time, the applicant has separated from her husband. 

4. In July 2014, the applicant lodged the subject application for a protection visa.[2]  She indicated in that application that she was fearful of being harmed by moneylenders in India.  That application was considered by a delegate of the first respondent on 3 December 2015.  It was refused.[3]  The applicant applied for a review of the delegate’s decision on 22 December 2015. 

   [2]     CB pp 13-23.

   [3]     CB pp 102 – 113.

5. Shortly before the date that had been set for the hearing of her application before the Tribunal, the applicant issued a request under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) for certain documents.[4]  That application was addressed to the Tribunal.  In it the applicant requested documents relating to the Tribunal file and documents held by the Department of Immigration and Border Protection relating to her file. 

   [4]     CB p 117.

6. The Tribunal forwarded the FOI request directly to the Department on 9 August 2016.  On 16 August 2016, the Tribunal file was directly released to the applicant in full by email.[5] It should be noted, because it is relevant to an argument that the applicant has raised in these proceedings, that the document she completed to request access for documents under the FOI Act indicated that her preferred method of correspondence was by email and she provided her email address in the appropriate panel of that document. She also indicated on the face of that document that her preferred method of accessing any written material was to be given hard copies.[6]

   [5]     CB p 149.

   [6]     CB p 117.

7. On 18 August 2016, the Department of Immigration and Protection acknowledged receipt of the Freedom of Information request. 

8. As her hearing was approaching, the applicant made a request on 24 August 2016 for an adjournment of the hearing, which was scheduled for 9 September 2016, to enable her to receive documents from the Department file.  The applicant also requested that the presiding member be recused on the basis that the applicant was concerned she would not get a fair hearing from that member.  She advised that the member in question had allegedly made “uncalled for and derogatory remarks” against the “character” of one of her friends.  She reiterated this request on 30 August 2016.

9. The Tribunal granted the adjournment that she had sought but refused the request for the matter to be transferred to a different presiding member. 

10. The applicant was invited to attend a Tribunal hearing on 11 October 2017.  The Department of Immigration and Border Protection released their file to the applicant by posting a CD of the documents to her.[7]  On the day the applicant received that CD, she contacted the Tribunal to say that she could not open the file because she did not have access to a DVD player.

    [7]     CB pp 122 to 124.

11. The hearing proceeded on 11 October 2016.  The applicant attended in person and had the assistance of an interpreter.  It is not apparent from either the decision record or the hearing record that the applicant at any stage requested an adjournment to enable her to further consider the materials that had been provided to her in response to the Freedom of Information request.  The Tribunal affirmed the decision not to grant the applicant the visa on 26 October 2016.  The application in this Court was filed on 21 November 2016.

Tribunal hearing and decision

1. The Tribunal correctly identified the criteria for the granting of a protection visa as set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[8]  It also identified the relevant criteria for the granting of a protection visa under the complementary protection criterion.  It took note of the fact that it was required to take into account the Ministerial direction number 56 which sets out the policy guidelines prepared by the Department of Immigration in a document that is commonly referred to as ‘PAM3’. 

   [8] CB p 168 at [4].

2. There is nothing exceptionable about the manner in which the Tribunal identified the relevant legal principles, statutory provisions and regulations relevant to the applicant’s claim for a protection visa. 

3. The Tribunal identified the claims of the applicant by setting out, firstly, her responses to various questions in the form that she was required to complete at the time of making her application.  It also summarised her written statement.[9]

   [9]     CB pp 169 to 170.

4. The Tribunal noted that the applicant had provided two statements, the first being from her father, and the second from a friend of her father’s.  The Tribunal took these statements into account and summarised their contents.[10]  It noted that the father claims to have sold his house and belongings some time after his wife died in 2004.  Since that time he had not been able to obtain a job and as a result he borrowed about A$30,000 in 2010.  Whilst he had repaid most of the loan, the people who lent the money to him increased the interest rate and added additional charges which he was not able to pay. 

   [10]    CP p 170.

5. He claimed that, as a result, the people who lent the money threatened both him and his daughters.  He claimed that on one occasion those persons had forcibly entered his home with weapons and assaulted him in May 2014.  As a result, his daughter suffered mental shock.  This was of particular concern to her father because that same daughter had earlier been under treatment for psychosis.

6. He claimed that whilst he had reported the incident to the police, they had taken no action, and as a result, his life and the lives of his daughters were at risk.  The Tribunal noted that the statement from the father’s friend also referred to an incident in which the father had been assaulted and threatened in his house by several unidentified men, but that the friend believed it occurred in June 2014. 

7. The Tribunal made a number of findings.  Firstly, it noted that during the course of the hearing, the applicant had indicated that she was making her application on the basis of the complementary protection criteria and did not ask that it be considered in relation to the refugee criterion.[11]

   [11] CB p 171 at [17].

8. The Tribunal had concerns about the credibility of the applicant’s claims.  It found that she had exaggerated or fabricated aspects of her claims for the purpose of remaining in Australia.[12]  Amongst the adverse credibility findings the Tribunal made against the applicant which caused it to reject her claims, was that she had only sought a protection visa after having exhausted other visa options.  It found that her explanation for her delay, namely, that she had only become aware of the gravity of the threats faced by her father and the danger to him and her sisters after she had been rejected for a subclass 485 visa, lacked credibility.[13] 

   [12] CB p 171 at [19].

   [13] CB p 171 at [20].

9. In considering the applicant’s evidence as against the other evidence she provided, the Tribunal found that her evidence regarding her family’s financial situation was inconsistent with that of her father and her father’s friend.  For that reason, the Tribunal accorded the affidavits of the applicant’s father and his friend little weight.[14]

   [14] CB p 171 at [21].

10. It was also a matter of some significance to the Tribunal in assessing the credibility of the applicant’s claims that on her own case, no action had been taken against the applicant’s father or anyone in her family by those whom she said presented a risk of harm to them for at least two and a half years prior to the date of the hearing. 

11. It was for those reasons that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution should she be required to return to India in the reasonably foreseeable future. For that reason, it concluded that she did not meet the criteria of s.36(2)(a) of the Act. The Tribunal considered the applicant’s claims as against the complementary protection criteria, notwithstanding the fact that she had disallowed a claim on that basis during the hearing.

12. The Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there was a real risk that she would suffer significant harm.  For that reason, it concluded that this country did not have any protection obligations to the applicant by virtue of the complementary protection criteria.  As a result, it affirmed the decision not to grant the applicant a protection visa.

Grounds of review

1. Whilst there are eight grounds of application, as the first respondent points out in its outline of submissions, they can properly be understood as referring to four separate issues.  Ground 1 asserts a jurisdictional error by complaining about the findings made as to the complementary protection obligations. 

2. Grounds 2, 3 and 8 relate to the applicant’s assertion that the presiding member should have disqualified herself and referred the matter to the registrar for reallocation to a different Tribunal member.  She asserts that there was an apprehension of bias on the part of the presiding member and also that the Tribunal’s conduct of the proceeding demonstrated an actual bias on the part of the presiding member. 

3. Grounds 4, 5, 6 and 7 allege a breach of procedural fairness obligations. As the first respondent has noted in its submissions, it alleges a failure to comply with ss.359AA and 359A of the Act but must properly be understood to be alleging a breach of ss.424A and 424AA. Sections 359AA and 359A deal with the migration provisions. It is s.424A that deals with the refugee provisions.

4. Finally, ground 2 and, in part, ground 6, assert that the applicant was, in effect, denied procedural fairness because the Tribunal made an error in failing to provide her with hard copies of all of the documents requested pursuant to the FOI Act.

Submissions

Applicant’s submissions

1. The applicant made brief oral submissions before me, and as I have indicated, also relied upon a written outline of submissions.  To a large extent, the applicant’s oral submissions simply repeated many of the matters contained in her written outline of submissions.  She says that the Tribunal failed to give any consideration to the attacks which she claimed had been perpetrated on her family, as detailed in the affidavit of her father and her friend. 

2. She submitted that it was reasonable for her to request a hard copy of the documents from the department.  She did not have a CD-player or a computer, and the cost of accessing the CD at a commercial facility, for example, an internet café, was prohibitive. 

3. As far as the question of bias is concerned, she said that she had been told by numerous people to ask for the Tribunal member to recuse herself.  Further she stated in oral submissions that 20 minutes into the hearing the member told her that it was over, which caused her stress. Although she acknowledged that she kept talking for another 38 minutes, she did not believe that the member wanted to listen to her.  She took exception to the fact that the Tribunal member appears to have made observations to her about some of her claims and questioned her as to why there had been a delay in applying for the bridging visa.  In her submission, the Tribunal member was not really prepared to listen to her and give her a fair go.  She felt that the Tribunal member just wanted her to leave the room. 

4. I note at this point that the transcript of the proceedings has not been put on file by the applicant, notwithstanding the order permitting her to file further documents, including the transcript, prior to this hearing, if she sought to do so. 

5. In her written outline of submissions the applicant contended that the Tribunal fell into jurisdictional error, because it failed to consider or discuss her claims with her insofar as they related to the attacks on her family.  She complains that the Tribunal did not properly take into account, consider, or discuss the specific allegations made by her father’s friend.  I take this submission to be an assertion that the Tribunal did not properly consider that evidence.  In the applicant’s submission the failure to properly consider or deal with that evidence in the decision record suggests that there was an element of bias in the way in which the Tribunal approached her claims.

6. The applicant’s written outline of submissions asserts that she knew she would not get an impartial hearing and points to the fact that she knew two people who had also had merits-review hearings before the same Tribunal member.  In her submission, they did not get a fair hearing.  For that reason, she says that given what she regards as the uncalled-for remarks made by the Tribunal member in those other matters, it can be established, that the member would not and did not approach her matter with an open mind.

7. The applicant points to the fact that the Freedom of Information form that she completed specifically asked if she had a preferred method of receiving documents in the event that she did not wish to receive an electronic copy of any written material.[15]  She asks rhetorically, if her preferred method of delivery of documents was not going to be complied with at her request, what was the point of having it on the Freedom of Information form?  In her submission, the failure to provide her with hardcopy documents has denied her the opportunity of equity and fair play. 

   [15]    CB p 117.

8. The applicant complains in her written submission that the Tribunal failed to establish in its reasons the basis on which it arrived at the unjust and unfair conclusion that there was no credibility in her claims, as no adverse action had been taken against her family.  This is unreasonable, she submits, because the Tribunal should not have concluded that the threatening of her family and the fact that they have gone into hiding to avoid harm was not adverse.  That submission tends to ignore the fact that the Tribunal rejected significant aspects of the applicant’s evidence.  In essence this complaint is that the Tribunal made an erroneous finding, in particular because it did not discuss or mention the affidavits of Paramjeet Singh and Pawan Kumar, which were before it.

9. The applicant referred in her written outline to a number of well-known authorities on the question of apprehended bias.  Her written submission acknowledges that bias can be a difficult matter to articulate, but in essence she asserts that it is clear, that this is a case tainted by apprehended bias.  In her submission, from the outset of the proceedings, the member gave the impression that all she had said before the Tribunal was a bundle of lies.  As I have already observed, there is no evidence before the Court as to what happened before the Tribunal, because the transcript has not been put on file.  I am confined to the hearing record and the decision record.

First respondent’s submissions

1. The first respondent submits that ground 1 is a request for an impermissible merits review.  The applicant is, simply, complaining about the outcome of the proceedings.  It submits, correctly, that a Tribunal is not required to accept uncritically any and all claims made by an applicant.[16]  In the submission of the Minister the findings of the Tribunal were open to it on the materials and there was nothing illogical or irrational in the decision it made.

   [16]    Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

2. With respect to grounds 2, 3 and 8, relating to apprehended or actual bias, the Minister submits that the failure to file any evidence in support of that contention is fatal to this ground.  Further it submits that the ground has not been clearly articulated by the applicant.[17]  The first respondent submitted that there was no error in the Tribunal member considering the application for recusing herself rather than referring the matter to the registrar.  It is clear from the materials that the Tribunal member did give consideration to the recusal application, and a copy of the letter sent to the applicant on that topic on 31 August 2016 is contained in the Court Book. [18]

   [17]    Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [69].

   [18]    CB p 157.

3. Finally, the first respondent submits that the applicant’s contention that the Tribunal member had in other matters made derogatory or critical remarks about applicants who were known to this applicant falls short of demonstrating that a fair-minded lay person might reasonably apprehended the decision-maker might not bring an impartial mind to the making of the decision.

4. It is not, the first respondent submits, enough to establish an inference of bias to point to the fact that a decision-maker has made an adverse decision or critical findings against an applicant.[19]

   [19]    SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [37] to [38].

5. With respect to grounds 4, 5, 6 and 7, relating to breach of procedural fairness, the first respondent submits that there was no failure to provide particulars of the provisions, evidence, regulations, and facts which were taken into account in affirming the decision. Section 424A sets out as follows:

   “424A Information and invitation given in writing by Tribunal

   (1)Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)The information and invitation must be given to the applicant:

   (a)except where paragraph(b) applies—by one of the methods specified in section 441A; or

   (b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)that is non‑disclosable information.

   (4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

6. Section 424AA provides as follows:

   “424AA Information and invitation given orally by Tribunal while applicant appearing

   “(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so—the Tribunal must:

   (i)   ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

7. In the submission of the Minister there was simply no information as contemplated by those sections that triggered the Tribunal’s obligation to extend an invitation to comment under s.424A. Further, the failure to indicate to the applicant the “provisions” and “regulations” relied on by the Tribunal was not something that was covered by s.424A of the Act because they are not a reason or reasons for affirming the decision under review, or “information” for the purposes of that section as they are not specifically about the applicant and are therefore excluded under s.424A(3)(a).

8. Further, the “evidence” and “facts” given by the applicant herself are excluded from the operation of s.424A(1) by virtue of the operation of s.424A(3)(b) of the Act. Nor was it necessary for the Tribunal to provide a running commentary of the view that it was taking of the evidence as it was given, and any inconsistencies perceived by the Tribunal did not amount to information under s.424A.[20]

   [20]    SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.

9. Having invited the applicant to appear and give evidence and present arguments in relation to the issues arising on the decision under review, the applicant had been given a meaningful opportunity and a real chance to appear and present evidence and arguments, and for that reason this ground must fail.  The first respondent once again points to the fact that the ground is unsupported by any evidence. 

10. The Minister submits that a fair reading of the decision record shows that the Tribunal provided a meaningful opportunity to give evidence and present arguments on the relevant issues.  The applicant was clearly on notice of what those relevant issues were because they were contained in the reasons of the delegate.  The issue of credibility was clearly a matter that had been identified by the delegate.  For that reason, she was on notice of this issue.

11. With respect to the manner in which documents were provided to the applicant pursuant to the Freedom of Information request, the Minister submits, firstly, that this application is not a review of the Freedom of Information request. It submits that if the applicant had an issue with the manner in which the Freedom of Information request had been complied with, it was open to her to make a complaint under s.70 of the FOI Act.

12. I note that the letter sent to the applicant by the Department of Immigration and Border Protection, dated 6 October 2016, indicates that it was open to the applicant to apply directly to the Office of the Australian Information Commissioner for a review of the decision within 60 days.[21]  It also advised her that she could obtain further information about her review rights and how to submit a request to review her application by accessing a particular fact sheet on a website for which it gave her the address.[22]

    [21]    CB p 123.

    [22]    Ibid.

13. Further, had the applicant sought to complain about the handing of the Freedom of Information request, that letter advised her that it was open to her to make a complaint to the Commonwealth Ombudsman or the Australian Information Commissioner about action taken by the Department of Immigration and Border Protection in relation to her request.  There is no evidence before me that the applicant made any application for review or any complaint in relation to the Freedom of Information request in the manner suggested by that letter. 

14. It is correct that the applicant contacted the Tribunal directly and complained about the fact that certain materials had been provided to her on a CD rather than in hard copy.  The Tribunal referred her to the Department of Immigration and Border Protection directly.[23] 

    [23]    Exhibit R1.

15. The Minister submits that it is clear that the applicant received copies of the Tribunal file.[24]

    [24]    CB p 149.

16. Further, the Tribunal granted her request for an adjournment so that she could receive and consider the freedom of information materials. She was given an adequate opportunity to review the relevant files prior to the Tribunal hearing. The Minister submits that there is no requirement on the part of the Tribunal to provide hard copies of documents released under the FOI Act. I accept that submission.

17. Further, the information that had to be provided from the Department included an audio recording which, by its very nature, had to be provided to the applicant on a disk.

18. The Minister submits that there was no denial of procedural fairness or denial of a meaningful opportunity to attend a hearing under s.425, and that it should be taken into account that the materials requested by the applicant were, insofar as the Tribunal is concerned, documents that she had submitted herself, or which had already been provided to her by the Department or the Tribunal.

19. As I have already observed, and as the Minister submits, there is no evidence that the applicant requested a further adjournment of the hearing in order to enable her to properly access the material which had been provided to her.

Consideration

1. I accept the submission of the first respondent that ground 1 of the application seeks an impermissible merits review.  It amounts to a complaint that her evidence of being in danger for her life was not accepted.  It has often been observed that the boundaries of jurisdictional error are not so broad as to encompass matters of fact where the findings were reasonably open to the Tribunal.

2. In this matter, I am satisfied that the findings of the Tribunal were open to it.  There was nothing illogical or irrational in these findings.  I dismiss ground one.

3. I will deal with grounds 2, 3 and 8 together as the first respondent has suggested.  As the first respondent has submitted, I am confined to a consideration of the materials before me, which do not include the transcript of the proceedings.  I do not accept the submission of the applicant that the Tribunal member was bound to refer the recusal application to the registrar for determination.  As cited by the first respondent, I am satisfied that the decision in Bainton v Rajski[25], albeit dealing with a recusal application to a court and not a tribunal, reflects the orthodox position and is dispositive of the applicant’s submission:

   “There is, I think, no procedural solution which, in every case and without qualification in the application of it, will achieve both justice and the appearance of justice on the one hand and, on the other, the due administration of court business and unnecessary cost to the other party involved.

   In Barton v Walker, this Court considered the procedure which, as a matter of principle and in the light of considerations of this kind, should be followed by a judge in this regard. In that case, objection was taken to the determination of a proceeding by O'Brien J, Chief Judge of the Criminal Division. The judge had refused a request made in open court that he not determine a civil proceeding in which the Attorney-General was a party; the request was made on the ground that there was actual or apprehended bias “from the judge's appointment” (as Chief Judge of the Criminal Division of the court) “said to be by, or at the invitation of, the Attorney-General” (at 741); see also (at 756D-F). Proceedings were brought to test his Honour's rejection of the request and those proceedings were determined by this Court (Reynolds, Glass and Samuels JJA). The court upheld what the judge had done and in principle the procedure he had followed.

   Samuels JA, in a judgment with which the other members of the court agreed, referred to the “informal practice which requires the individual judge to determine his own disqualification” (at 749D); which, in the experience of the court “is seen to work well” (ibid). His Honour held that “a motion to disqualify a judge of the Supreme Court is not cognizable” (at 750B). He said that “the proposition that one judge of this Court has authority to declare that another is disqualified from sitting in particular proceedings seems to me, if I may say so, quite absurd” (at 756A).

   Barton v Walker establishes two things: that it is, in principle, for the judge in question to determine whether he should hear a particular proceeding; and that that decision may be made without formalities such as a motion for his disqualification, the hearing of evidence, or the like.”[26]

   [25] (1992) 29 NSWLR 539.

   [26] Ibid at pp 543-544

1. It is well established that an allegation of bias must be distinctly made and clearly proved.[27]  The sole basis for the application for recusal was the assertion by the applicant in relation to the manner in which the Tribunal member had dealt with other applications involving people she knew.  I am not satisfied that such an assertion comes as a matter of fact or logic anywhere near demonstrating that the Tribunal member was not prepared, and did not approach the issues before her in this matter with a mind open to persuasion.  In my view, there is nothing in the circumstances of this matter that would cause a fair minded lay person to reasonably apprehend that the Tribunal member would not bring an impartial mind to the issues before her.[28]  I do not accept the submission of the applicant that on the assumption that the member made the observation that the parents of the applicant were “still alive”, of which there is no evidence before me, she could fairly be regarded as having done anything other than testing the evidence before her.  I dismiss grounds 2, 3 and 8.

   [27]    Jia, op cit.

   [28]    SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

2. With respect to grounds 4, 5, 6 and 7 which deal with procedural fairness and the implications of ss.424A and 424AA of the Act, I accept the submissions of the first respondent. A failure to indicate relevant “provisions” and “regulations” relied on by the Tribunal was not a matter contemplated by the sections, it would not amount to “information” in the relevant sense.  The evidence presented by the applicant are excluded from the requirement.[29]  The applicant was, as the Act contemplates, invited to attend at a hearing to present evidence and arguments relevant to her case.  She was given a meaningful opportunity to present her case and I am unable to discern that she was occasioned any procedural unfairness.

   [29] Section 424A(3)(a).

3. It was not a jurisdictional error for the Tribunal not to have ensured that the documents provided to the applicant, the subject of the Freedom of Information request, were given to her in hard copy.  The Tribunal was not the subject of the request.  I accept the submission of the first respondent that in any event it was clear that the information the applicant sought was provided to her.

4. I dismiss grounds 4, 5, 6 and 7.

5. I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  30 May 2018

at [451].