DZAAC v Minister for Immigration - [2012] FMCA 760

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 760

MIGRATION – Review of decision of Independent Merits Reviewer – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577

Applicant:

DZAAC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

INDEPENDENT MERITS REVIEWER

File Number:

DNG 8 of 2011

Judgment of:

Riethmuller FM

Hearing date:

13 August 2012

Date of Last Submission:

13 August 2012

Delivered at:

Darwin

Delivered on:

13 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Lawrence

Solicitors for the Applicant:

Hunt & Hunt

Counsel for the First Respondent’s:

Ms Watson

Solicitors for the First Respondent’s:

Australian Government Solicitor

ORDERS

That the Application be dismissed.
That the Applicant pay the costs of the First Respondent fixed at $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 8 of 2011

DZAAC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of a reviewer.
The applicant, her husband and two children arrived at Christmas Island on 30 March 2010 seeking a protection visa. The applications were rejected on 12 July 2010 and then went to merits review on 19 January 2011. The reviewer’s decision, that is the subject of these proceedings, was made on 26 March 2011.
In substance the wife claimed protection on three bases. One related to attacks on or official torture of her husband. She said that he was first arrested in 1997, beaten and left on reporting conditions for some two years. After things had, it seemed, settled down, in 2009 problems arose again as a result of the connection with a boarder described as [R].
It was said that the husband was again detained by officials and tortured and then released, following which they moved to the husband’s brother’s house for a period before leaving Sri Lanka. There were serious issues with respect to the course of events and it was the subject of much focus during the hearing.
The applicant also claimed that she was at risk as being a failed asylum seeker returning to Sri Lanka and being a single woman the head of a household returning to Sri Lanka. The later two claims were dealt with in the review decision and were not the subject of challenge before me.
The review decision runs for quite a number of pages and sets out in some considerable detail a large number of inconsistencies given in the versions of the applicant and her husband before ultimately rejecting the proposition that the husband had been detained by officials in 2009, thus resulting in a rejection of her claim. As the reasons setting out the various inconsistencies run for many pages I will not repeat them in this decision.
Notably, by the time that the matter was heard before the reviewer the applicant and her husband had become estranged and were no longer living as husband and wife. Whilst they were estranged, and no doubt had significant differences in some quarters of their life, on a practical level their interests and versions for the purpose of these proceedings remained the same in that both continued to seek protection visas in Australia and both relied primarily upon the event involving the husband.
In the lead up to the hearing their agent wrote to the reviewer asking that the parties’ applications be considered separately although not asking for formal separate hearings. That, no doubt, presented some difficulties to the reviewer as both parties relied upon the one significant course of events as the basis, or primary basis, for their applications.
The first ground of review is that the applicant was denied procedural fairness. The applicant sets out a number of particulars in the application. The substance of the complaint is that during the course of the review hearing the reviewer excluded the applicant from the room for a part of the hearing whilst he heard from the husband and excluded the husband from the room for a part of the hearing whilst he heard the wife and then ultimately delivered two separate decisions, both of which refused to recommend that the husband or wife were in need of protection.
The wife makes a complaint about this course of events even though her migration agent continued to be present throughout and was, indeed, the same migration agent that represented the husband. It is argued that she was, in substance, denied procedural fairness because she was not able to observe her estranged husband giving evidence and she was not afforded an opportunity to cross-examine her estranged husband when he gave evidence. This was elaborated upon during the course of submissions and in written submissions, effectively setting out the benefits that are available to persons if hearings were conducted in a style more akin to criminal law proceedings than tribunal proceedings.
The nature of the rules of procedural fairness in administrative law are not precisely the same as the rules that would be applied in a Supreme or Federal Court trial. The matter has been the subject of some discussion in the various authorities and is set out in some detail in the decision in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 where the Full Court of the Federal Court consisting of Northrop, Myles and French JJ (as his Honour then was) made a number of comments about the extent of the obligations of the rules of procedural fairness. In particular, at page 590 the Court said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse materials: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman – La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 “…the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.”
At the bottom of page 591 their Honours go on to say:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, the person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment upon before the decision in question.”
Nowhere in that decision is mentioned a right to be present to observe any other witnesses or material being gathered, nor a right to cross-examination. Indeed, as pointed out by the solicitor for the Minister, when one turns to the first instance decision of Mansfield J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577 his Honour said (at paragraph [43]), in a case involving a mother and a daughter who had both given evidence before the tribunal but where the claimant had not been present to hear her daughter’s evidence:
“I do not consider that those common law rules were breached by the Tribunal in this instance. The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter. She also had an opportunity of responding to those matters partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing.”
His Honour’s decision in this regard was not disturbed by the High Court when the matter reached the High Court on appeal. Indeed, his Honour’s ruling in this regard was affirmed by some of the justices in comments made in the appeal decision. The difficulty presented to the tribunal in that case was a statutory one with respect to the operation of section 424A, not a procedural fairness issue under the common law rules.
This case is not one where it could be suggested that the wife was at any point under any misapprehension as to the central features of the case. The difficulty of the discrepancies between her and her husbands versions were mentioned to her by the reviewer (see transcript page 33, lines 17 to 21). Whilst she was not present when similar, somewhat more expansive comments, were made by the reviewer with respect to the husband, her agent was nonetheless present and those comments appear in the transcript (at page 2, line 36 and following).
To the extent that any matters were not specifically put to her during the course of the actual hearing it is clear that they were nonetheless put to her in writing afterwards. A letter was later sent by the reviewer to the wife’s advisers setting out in extensive detail a very large number of issues and concerns: Indeed, that letter runs for around 10 pages setting out a series of inconsistencies and the conclusions that might be drawn from the inconsistencies.
The case was not argued on the basis that there was something which was not put to the applicant wife, at least by way of the correspondence: It was argued that some of these things were not put during the course of the hearing.
It seems to me that the rules of procedural fairness in cases such as these do not demand that a person have a right to be present and observe the evidence of all of the persons who might give oral evidence to a reviewer. Nor does it require that the parties have the right to cross-examine anyone who provides information or gives evidence to a reviewer with whom they do not agree with or whose evidence they do not entirely accept.
Rather, what is required is an opportunity to be made fully aware of the issues and a right to be heard on those issues, as is set out in some detail in the quote above from Alphaone. This being the case it does not appear to me that the application can succeed on the basis of a claim that the applicant was denied procedural fairness.
To the extent the hearing process involved the parties each having some time alone with the reviewer and perhaps some degree of lack of clarity about precisely when one hearing commenced and the other ended, on a practical level each case depended entirely upon the husband’s version of the events being accepted. The wife’s evidence was, in substance, to corroborate him about him being taken from the home and his return. The evidence that each gave would necessarily be part of the material before the reviewer in the other case. There was no lack of clarity as to this central feature of the proceedings. The agent was present throughout.
Indeed, when one looks at the material as a whole it has more of a flavour of a tacit understanding that the evidence of the parties would be better if it was given separately rather than when they were together. This sometimes happens by agreement in civil proceedings, that one of the parties will choose to be absent and only have their lawyer present when the other gives evidence. In this context it seems to me there is nothing that would amount to an error that breaches the rules of procedural fairness even bearing in mind that the decision-maker was formally hearing separate cases and making two separate decisions.
I do not allow the application on the first ground.
With respect to the second ground it is claimed that the reviewer took into account irrelevant considerations or placed too much weight upon what is said to be minor inconsistencies between the statements of the applicant and her estranged husband. In substance this ground is really an attack upon the fact-finding of the tribunal, that is, largely focusing upon merits review.
It is not actively put that this is a case where on viewing the material one could come to the conclusion that no reasonable decision-maker could come to the conclusion that this particular decision-maker came to. Rather, it is a critique of the reasons and the process by which the decision-maker analysed the evidence before him. In this case there were a plethora of minor or small inconsistencies between the parties. The central theme of officers coming and taking the husband away and him returning injured was certainly consistent, but a very great deal of the surrounding material provided inconsistencies on versions that were given. For example, inconsistencies about the events that took place at the time that the husband was taken from the house. It was argued that this was in substance ‘nitpicking’ over minor details about whether or not he washed his hands.
Reading the passage of the decision makes it clear that this is an analysis of the events that actually took place on the occasion that the officers were said to have come to the house, to test the detail and the truth of the version that the officers even attended to take the husband away. The reviewer in the decision at page 128 says:
“At the review interview, the claimant husband stated he said to the officers that he wanted to wash his hands and he did so at the tap outside in the front of the house. He said the claimant wife came out.
At the review interview, the claimant wife was asked whether the claimant husband had washed his hands prior to going with the police. She said he did so and that this was at the back of the house. She said she poured a jug of water over his hands having filled the jug from the tap. She said she stayed inside when he was taken away and did not watch.
Later, at the claimant husband’s re-interview, it was pointed out to the claimant husband that he had said he had washed his own hands in the front of the house but that the claimant wife had said she had assisted him to wash his hands at the back of the house. He said she had made a mistake. It was pointed out to him that he had implied the claimant wife had come out and had watched him being taken away while she had said she stayed inside and did not watch. He said that once the police had grabbed him he could not see what was happening and whether she came out.”
Similar arguments can be raised with respect to the other matters that were referred to by the decision-maker.
Ultimately I am not persuaded that this goes further than what is substantially a merits review of the fact-finding of the decision-maker in this particular case. That is, the decision-maker has gone through and looked at all of the surrounding detail of 2 versions being given by two different persons of a common event, looking at whether the detail of those versions match up in order to test the versions. This is a strategy commonly used by advocates when dealing with alibi evidence.
The third ground is a claim that the reviewer failed to take into account the applicant’s possible trauma due to past experiences and events and detention. This is always a serious and difficult matter in cases of this type. It is always a difficult point because a reviewer is being asked to assess the truth and reliability of evidence of persons who, in many cases, have suffered enormous trauma which, of itself, tends to weaken their capacity to provide accurate and clear evidence.
In this case the reviewer set out submissions that focused upon this in the decision at page 134. In particular:
“[DZAAC] has instructed that, as she detailed at the interview, she has experienced significant trauma associated with the issues she and her husband faced in Sri Lanka and their subsequent journey to Australia. [DZAAC] instructs that her separation from her husband and their domestic disputes whilst in Australia has added to this trauma.
[DZAAC] instructs that she has been truthful in her accounting of the experiences faced by her and her husband, but that the trauma that she has faced has led her to be at times confused when recollecting her experiences in Sri Lanka. Our client instructs that this has led her to be perceived as inconsistent when accounting the events that she has experienced.”
The reviewer later, under the heading Finding and Reasons, returns to this point at page 138 saying:
“The reviewer notes that the claimant has not in any way disputed the fact that there are such disparities. The reviewer finds the claimant’s statement, that the trauma she suffered in Sri Lanka, in coming to Australia, and through the marital breakup with her husband, has led to her being unable to recall details of the events in question, to be unconvincing given the number of and nature of the disparities and finds that the disparities to be conclusive evidence that the claims were fabricated to provide a basis for a protection visa application.”
It seems to me that in light of these passages, there is no doubt that the reviewer was not only considering submissions relating to the impact of trauma but squarely raised that when considering the evidence that came before the reviewer. In these circumstances the ground comes down to a question of merits review or weight which is not open in proceedings of this type.
The fourth ground related to a claim of apprehended bias on the part of the reviewer. It was said that a fair-minded observer would reasonably apprehend the reviewer to be biased or to not bring an impartial mind to the case for four reasons that are particularised.
Firstly it is alleged that the reviewer asking the applicant to leave the hearing room when her husband gave evidence would give rise to an apprehension of bias. I find it difficult to accept that that of itself would give rise to an apprehension of bias when it is clear that the versions to be given by each of them are at issue and that it is important to critically assess whether or not they should be believed.
Secondly, it is said that because the reviewer accused the applicant and her husband of collusion and questioned a security guard in relation to this allegation that would also give rise to a reasonable apprehension of bias.
It is the case that in the course of the hearings in this case that a security guard was asked to come in and give evidence as to whether or not the husband and wife had spoken to each other during a break.
It appears at page 52 of the transcript that the matter was adjourned for a period and then resumed with the husband giving evidence. By page 54 the husband made comments such as appears at page 54, line 24:
“I did not mention earlier that before I went to Colombo there were three days I went to my brother’s place and then after that, we went to Colombo from there.”
Later, after recounting another detail said at page 54, line 44:
“I forgot to mention that earlier.”
Clearly these recent recollections or clarifications by the husband, shortly after the break, excited the reviewer’s mind. Having done so, it seems to me that it was appropriate for the reviewer to raise that he had some concerns, which he did at the top of page 55 of the transcript saying:
“I’m very suspicious that you just spoke to your wife about that.”

It could be said that this is somewhat strong language, but nonetheless the clear purpose of it was to identify that there were issues raised in the reviewer’s mind based on the course of the evidence. He then asked the security guard to give some evidence and accepted the security guard’s evidence that the parties had not in fact spoken during the course of the break.
The third matter that was particularised was that the reviewer’s questioning of the applicant and her husband was directed towards finding inconsistencies in their evidence instead of assessing and reviewing their claims. When one looks at the material that was before the reviewer in the previous decision and the material that had been placed before the initial assessing officer it is clear that there were a number of inconsistencies. It is also clear that the central question in the case was whether or not the version of events given by the applicant and her husband as to what occurred in 2009 was to be accepted.
It seems clear from the terms of the decision that had that version of events been accepted there was little else that the parties would need to say to convince the reviewer of their entitlement to a protection visa recommendation. Thus the real question for the reviewer was to assess whether or not to accept that these events had taken place. The fact that the reviewer was focused upon this does not indicate a basis for an apprehension of bias, rather, that the reviewer commenced the hearing well prepared and focused upon the matters that the reviewer had concerns about.
The final matter referred to was the fact that the reviewer perceived there to be “significant disparities in evidence” when it was said that the central features of the claim remained identical. In a case such as this it would be rare for the central features of such a claim to differ. It is only the surrounding features that provide a basis for assessing the evidence and it is not inappropriate for a reviewer to look at those matters in determining whether or not there were disparities and if sufficient details are different or disparate to conclude that the differences are significant.
Again, this of itself does not appear to me to show a basis for reasonable apprehension of bias on the part of the reviewer.
Whilst I have considered each of the particulars individually I am mindful of the fact that for the purposes of the test for reasonable apprehension of bias I should also consider the matters as a whole as it may be that an individual matter when added to others, would be sufficient to show a reasonable apprehension of bias.
This was a difficult case that required considerable forensic analysis and focus. In these circumstances the reviewer has diligently attended to those issues. That is what has led to the manner in which the hearing was conducted and the calling of the security guard during the course of it. Ultimately I am not persuaded that even when taken together these matters would lead to a reasonable apprehension of bias on the part of the reviewer.
As I am not persuaded that a ground has been made out in this case I must therefore refuse the application for judicial review.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 28 August 2012