DZAAD v Minister for Immigration
[2012] FMCA 1017
•8 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1017 |
| MIGRATION – Judicial review – Independent Merits Reviewer’s recommendation – denial of procedural fairness – apprehended bias. |
| Administrative Appeals Tribunal Act 1975 (Cth), s.32 Migration Act 1958 (Cth), ss.5, 424A, 425, 476, 477 |
| Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 DZAAA & Ors v Minister for Immigration & Citizenship & Anor (2011) FCR 423; [2011] FMCA 434 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Goodricke v Comcare (2011) 122 ALD 546; [2011] FCA 694 Kioa v West (1985) 159 CLR 550 Lee & Ors v Minister for Immigration & Multicultural Affairs & Anor (2006) 205 FLR 117; [2006] FMCA 480 Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577; [2010] FCAFC 159 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Naisauvou v Minister for Immigration & Multicultural Affairs (1999) 89 FCR 435; [1999] FCA 86 Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Pochi v Minister for Immigration & Ethnic Affairs (1979) 36 FLR 482 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425; [2001] HCA 28 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425; [2001] HCA 28 SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577 SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411 SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 SBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 963 Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42 Sullivan v Department of Transport (1978) 20 ALR 323 SZBFM & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 451 SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26 Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691 |
| Applicant: | DZAAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 9 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 September 2011 |
| Date of Last Submission: | 6 October 2011 |
| Delivered at: | Perth (by telephone to Darwin) |
| Delivered on: | 8 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the First Respondent: | Mr T Anderson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance (save as to costs). |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 9 of 2011
| DZAAD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application
The applicant is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth).[1] By an amended application[2] filed on 2 August 2011 the applicant seeks judicial review under s.476 of the Migration Act in respect of a recommendation by an independent merits reviewer[3] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]
[1] “Migration Act”.
[2] “Application”.
[3] “IMR Recommendation” (at Court Book (“CB”) 113-139) and “IMR” respectively.
[4] Collectively “the Convention”.
Extension of time application
The Application seeks an order for an extension of time in which to file the application. That extension is sought by reason of the fact that the originating application did not contain an application for an injunction restraining the Minister or his department, officers, delegates or agents from relying on the IMR Recommendation. Post the judgment of the Full Court of the Federal Court in SZQDZ & Ors v Minister for Immigration & Citizenship & Anor[5] an extension of time in which to file the Application is unnecessary as the IMR Recommendation is not a “migration decision” to which the 35 day time limit within which proceedings in this Court must be commenced in relation to a migration decision applied.[6]
[5] (2012) 200 FCR 207; [2012] FCAFC 26 (“SZQDZ”). The judgment of the Full Court of the Federal Court in SZQDZ is binding on this Court, it being a judgment of a superior appellate court, superior to this Court in the hierarchy of federal courts, which is directly on point, and not plainly wrong, and which must therefore be followed by this Court: Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.
[6] Migration Act, s.477; SZQDZ FCR at 216 per Keane CJ, Rares and Perram JJ; FCAFC at para.31 per Keane CJ, Rares and Perram JJ.
Orders sought
The Application seeks the following final orders:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law.
4.Any other orders which the Court thinks fit.
5.Costs.[7]
[7] The orders sought have been numbered consecutively although they are not all numbered in the Application.
Jurisdiction
The Application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[8]
[8] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).
Grounds of the Application
There are two grounds to the Application. The first alleges a denial of procedural fairness by the IMR. The second alleges that the IMR Recommendation is affected by apprehended bias. Each of the grounds is set out in full below.[9]
[9] See para.39 (ground one) and para.61 (ground two).
Background
The applicant is a Sri Lankan citizen of Tamil ethnicity from the north of Sri Lanka. The applicant is married with two children.[10] At the time of the interview by the IMR[11] the applicant and his wife[12] were separated.[13]
[10] CB 7.
[11] “Applicant’s IMR Interview”.
[12] “Wife”.
[13] CB 115.
The applicant arrived on Christmas Island on 20 March 2010 as an “unauthorised boat arrival”.[14]
[14] CB 19 and 77.
On 4 April 3010 the applicant participated in an entry interview.[15]
[15] CB 1-29.
On 8 May 2010 the applicant submitted claims in support of a request for a Refugee Status Assessment.[16] The RSA request initially included the applicant’s Wife and children, as a composite application.
[16] “RSA”; CB 31-70.
The applicant participated in a RSA interview. On 12 July 2010 the RSA officer found that the applicant did not meet the definition of a refugee as set out in the Convention.[17] On 4 October 2010 the applicant applied for independent merits review of the RSA.[18]
[17] CB 75-87 (“RSA Decision”).
[18] CB 89-93 (“IMR Application”).
By the time of the applicant’s IMR Interview the applicant had separated from the Wife. The applicant therefore asked that his application be treated independently.[19] On 19 January 2011 the applicant participated in the IMR Interview.[20]
[19] CB 95.
[20] Affidavit of Alison Hanley, sworn 27 July 2011, Annexure A (“IMR Transcript”).
The IMR conducted the Applicant’s IMR Interview, and an independent merits review interview with the Wife[21] separately on 19 January 2011.[22] The migration agent for the applicant and the Wife was present for the Applicant’s IMR Interview and the Wife’s IMR Interview. The applicant was further interviewed after the Wife so that “differences” could be put to the applicant.[23]
[21] “Wife’s IMR Interview”.
[22] See IMR Transcript at T1-32 (applicant) and T32-52 (Wife) respectively.
[23] IMR Transcript at T52-61.
On 9 February 2011 the IMR sent to the applicant correspondence for his consideration and comment on “possible findings”.[24]
[24] CB 101-110, replicated in the IMR Recommendation at CB 127-135 (“9 February 2011 Letter”).
On 1 March 2011, the applicant’s solicitors replied to the 9 February 2011 Letter.[25]
[25] Supplementary Court Book (“SCB”) 13-14, replicated at CB 135 (“1 March 2011 Letter”).
Applicant’s claims
The applicant’s basic claims can be summarised as follows:
a)that he first came to the attention of authorities in Sri Lanka in 1997 when he was arrested by the Intelligence CID branch of the Sri Lankan army during “a round up”. The applicant was detained for about one week on suspicion of having LTTE[26] links and, thereafter, for a period of three years, he was required to report weekly to the CID Mannar office and advise them when he travelled to Colombo for work;
b)he married in October 1999, and otherwise lived without incident until 2008;
c)in mid 2008 the applicant met a man named Ravi on the bus. Ravi ended up boarding with the applicant and the Wife in their house, in a spare room;
d)Ravi did not return home one day. The next day the police came to the applicant’s home. The applicant was arrested and detained because of his association with Ravi, and on suspicion of having LTTE links;
e)the applicant was detained, questioned about Ravi and tortured by the CID for one day and then released;
f)the applicant said that the CID used barbed wire on his leg, and it was bleeding, and that they tied him upside down and beat him on his foot with an iron bar so he could not walk. He attended hospital for medical treatment, but was able to walk home from the police station and go to hospital himself by pushbike;
g)after the applicant went to hospital and before he got home, the CID came and slapped his Wife;
h)after coming home from hospital the CID used to come in a white van outside the applicant’s house and park at a grocery shop up the road;
i)the applicant then went to Colombo and arranged for a passport; and
j)the applicant claimed that he feared persecution for reasons of race (Tamil ethnicity) and imputed political opinion (support for the LTTE).[27]
[26] LTTE is an acronym for Liberation Tigers of Tamil Eeelam, formerly an armed group in Sri Lanka engaged in various criminal activities such as extortion, illegal taxation, prostitution, people smuggling and the smuggling of arms and contraband, it was designated by some countries and national groupings as a “terrorist organisation”: CB 155.
[27] See CB 123-124; see also CB 115-116.
The IMR Interviews
It is common ground that the IMR went to Darwin to interview both the applicant and the Wife.
The Applicant’s IMR Interview began with the usual formalities, following which the IMR indicated that the RSA Decision was based upon “differences in what your wife had said and what you had said.”[28] The IMR indicated that because of that it was necessary for the IMR “to talk about these issues with you and with your wife separately, and if there are differences I might have to talk to you again about differences that appear.”[29]
[28] IMR Transcript at T2.
[29] IMR Transcript at T2.
The IMR then proceeded to deal with issues including:
a)when the applicant first came to the attention of authorities in Sri Lanka, and his reporting conditions from 1997 to 1999, when he stopped reporting to the authorities;[30] and
b)the circumstances in which the applicant met Ravi, and Ravi came to board at the applicant’s house, and what he did whilst living in the house with the applicant and the Wife.[31]
[30] IMR Transcript at T3-5.
[31] IMR Transcript at T5-7.
The IMR then got the applicant to draw a plan of his house and went through the facilities in and around the house.[32]
[32] IMR Transcript at T7-9.
The IMR then dealt with:
a)the circumstances of Ravi’s not coming home one night in November 2009;[33]
[33] IMR Transcript at T10-11.
b)the circumstances of the applicant’s arrest whilst at home having lunch soon after Ravi’s disappearance, and, in particular, who was in the house at the time;[34]
[34] IMR Transcript at T11-15.
c)whether or not the applicant was allowed to wash his hands, and where, and whether the Wife came outside of the house with him when he was arrested;[35]
[35] IMR Transcript at T15.
d)the circumstances of the applicant being taken to the police station, what happened there, and his subsequent release;[36]
[36] IMR Transcript at T16-17.
e)the injuries suffered by the applicant, and his attendance at hospital for the purposes of treatment, including the fact that notwithstanding his leg injuries, he went to hospital by bicycle;[37]
[37] IMR Transcript at T17-19.
f)the circumstances of the applicant’s attendance at hospital and his subsequent return to the house;[38]
[38] IMR Transcript at T19-20.
g)the applicant’s attendance at work for the purposes of applying for leave;[39]
[39] IMR Transcript at T21.
h)the CID coming to his home and waiting outside on the road in white vans;[40]
[40] IMR Transcript at T21-22.
i)the applicant’s going to Colombo to get a passport, and that there were no white vans that bothered him in Colombo;[41]
j)after the applicant went to Colombo the CID came to his home several times, after which he then went to live, together with his family, at his brother’s house;[42]
k)whether or not the applicant’s Wife had seen the white CID vans to which his responses were:
Yes, she may see sometimes, but most of the times I told my wife that I saw the van parked outside.[43]
She may see the vehicle, but I’m not quite sure.[44]
l)further questioning concerning the applicant’s attendance at the police station, and how long he was held there;[45]
m)further questions concerning the applicant’s attendance at work to apply for leave, in response to which the applicant indicated that he went straight to work after being released from the police station (that is before going home) and applied verbally for leave, and that it was not until the next day that he sent a letter applying for leave without pay;[46] and
n)the fact that the applicant told the RSA officer that wherever he went in Colombo he saw white vans and that they were following him, to which the applicant indicated that he did not say that, but rather that he was too scared to go out in Colombo because he thought that white vans may follow him in Colombo as well.[47]
[41] IMR Transcript at T22.
[42] IMR Transcript at T22.
[43] IMR Transcript at T23.
[44] IMR Transcript at T24.
[45] IMR Transcript at T24-25.
[46] IMR Transcript at T25-28.
[47] IMR Transcript at T29.
The IMR then made the following observation:
If the authorities think that you are linked to the LTTE, then I believe you would be in danger. My problem is that the original decision-maker found contradictions between what you were saying and what you wife was saying, and also some of the things that you and your wife were saying changed – kept changing. I am also having a bit of problems because some of the things you have said in your statement is not the same as what you have told me now. So that is why I am asking you these questions. I will also see what your wife says. I understand that people who have had a bad experience quite often have difficulty remembering exactly.[48]
[48] IMR Transcript at T29-30
The applicant then complained about the nature of the questions as being “questions not related directly to my case”, but rather to family and domestic arrangements in and around his arrest.[49] The applicant persisted with his questioning of the fact that the IMR was examining family and domestic matters, and it was in response to that fairly persistent questioning that the IMR observed as follows:
[49] IMR Transcript at T30.
What I am trying to explain is that I need to believe what you are saying, but I can also understand it is very upsetting.
…
It is because there is no way that I can really believe that a person called Ravi stayed at your place or that you were taken by the police, unless what I hear from you and your wife is in general consistent. If there are small things that are different, it does not matter. I will have to think whether there are large things that are different that might make me wonder whether in fact I can believe you. So that is why I am asking the questions.[50].
[50] IMR Transcript at T31.
Shortly thereafter the IMR indicated that “we will stop for the time being, but I may need to talk to you later. In the meantime, I will speak to your wife.”[51]
[51] IMR Transcript at T32.
It is apparent that the applicant then left the room, and that the IMR commenced to hear from the Wife in relation to her claim to be recognised as a refugee.[52]
[52] IMR Transcript at T32.
The course of the IMR’s questions to the Wife essentially followed the course of the IMR’s questions to the applicant.
At the end of the Wife’s questioning the IMR observed that:
There are some differences between what you say and what your husband said. But I have discussed those with you so far. There is also some differences between different statements you have made and I have also discussed those with you. I can understand that people under stress sometimes do not get it exactly right. So I have to think about whether the differences are significant or not. By “significant”, if they really were significant I might not be able to believe that the events described happened, or some of the events described happened. That is what I will have to think about.[53]
[53] IMR Transcript at T51-52.
Shortly after the applicant was further interviewed by the IMR without the Wife present. The IMR commenced by saying that:
There are some things that she said are different to what you said and it is necessary for me to talk to you about that. As I said, I can accept if there are small differences. If there are large differences then I have to think whether in fact it affects my belief that what you are talking about happened. I have not in any way made up my mind yet and that is why I want to talk to you.[54]
[54] IMR Transcript at T52.
The IMR then proceeded to ask the applicant questions in relation to:
a)where he went and how he got there after his release by the police;[55]
b)whether he went inside his house when he arrived home, and who he spoke to, and who was present;[56]
c)how he got to hospital;[57] and
d)what treatment he received at hospital, and whether any parts of his body were bandaged.[58]
e)the applicant then volunteered that the family went to his brother’s house for three days from the night of his release from police custody, and indicated that that was a matter that he forgot to mention earlier.[59] Immediately after the applicant had said that he forgot to mention that matter earlier the following exchange took place:
[55] IMR Transcript at T52.
[56] IMR Transcript at T52-53.
[57] IMR Transcript at T53.
[58] IMR Transcript at T53-54.
[59] IMR Transcript at T54.
DR WITTON: I am very suspicious that you just spoke to your wife about that.
INTERPRETER: No. The security did now [sic] allow us to speak. Even you can ask the security.
DR WITTON: Are they outside?
INTERPRETER: Yes, he is.
DR WITTON: Could we bring him in please. Hello. Do you speak Tamil?
MR…..: Yes.
DR WITTON: Come in, please. You just accompanied the wife across with the husband.
MR…..: Okay.
DR WITTON: Did they have a conversation?
MR…..: No.
DR WITTON: There was no conversation between?
MR…..: Not while I was in there.
DR WITTON: So you’re absolutely convinced. So what happened? How did the swap-over occur?
MR…..: She was on the other side, the woman, and he is on the other side, so I went and (indistinct)
DR WITTON: Good. So they didn’t have any contact?
MR…..: Yes.[60]
f)further questions concerning when the applicant was in Colombo and when he was staying at his brother’s house;[61]
g)further questions concerning the bandaging of the applicant’s wounds, and the fact that the Wife said that the applicant’s right hand was bandaged, a fact which the applicant did not demur from, but indicated that he had removed the bandage before he had come home;[62] and
h)further questions concerning where the applicant washed his hands, and whether or not the Wife came outside and saw him pushed into the police van.[63]
[60] IMR Transcript at T55.
[61] IMR Transcript at T56.
[62] IMR Transcript at T57.
[63] IMR Transcript at T59-60.
The IMR made it plain that he did not need to be persuaded that if the applicant was suspected of being a member or sympathiser of the LTTE it would be dangerous for him to return to Sri Lanka. The IMR made it plain that what was troubling him was whether or not he believed the applicant in light of the inconsistencies between the applicant’s story and that of the Wife, and that he would have to make up his mind as to whether those were sufficiently significant to warrant a finding that “the story was made up.”[64]
[64] IMR Transcript at T56.
9 February 2011 Letter
The IMR subsequently wrote to the applicant in relation to what the IMR perceived to be apparent contradictions in the evidence. The 9 February 2011 Letter is important and is set out in full. In the 9 February 2011 Letter, under headings which referred to “apparent contradictions”, the IMR said as follows:
1. Events when the claimant husband was allegedly arrested at home
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 that she has 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 had 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.
2. When the claimant wife assaulted
In their 8 May 2010 statements the claimant husband and the claimant wife both claimed that the claimant’s wife had been beaten in the evening of the day the claimant husband had been detained.
The RSA officer in her report states the oral evidence of the claimant’s wife was as follows:
“The next day the CID came to my house and then they inquired [sic] they beat me.” This is in contrast to her written claim which states it was the same day. She continued;
“so my husband wasn’t there and they asked for him and I said he wasn’t there, then they beat me. They slapped me on my face and after that they went to the shop to ask about him”.
In their supplementary statements and at the review interview, they both stated that she was slapped the next day while the claimant was at hospital.
3. How often the police/CID came to their house to speak to the claimant wife
In their 8 May 2010 statements they both claimed that the officers had come only once (in the evening while the claimant husband was being detained) and they had beaten the claimant wife.
In her RSA Report, the officer states:
Time of day when incidents occurred
The [wife] claimant had difficulty recollecting what time of day the CID men came and when she went to the police station. Statements varied from; “The next day the CID came to my house and then they inquired and beat me”. “Must have been early afternoon or later morning” Her statement said it was later that night on the day they took him, after she had been to the police station. In answer to that she said that it was “after she went to the police station and came back home I didn’t say it was the evening”. I read to her her claims to which she stated “No it would have been around 5 o’clock or a little before that but not late – not later than that.” I pointed out that at this stage we had anything from late morning to 5 o’clock and her children being at school to her children being with her (from her husband’s account).
She stated later in the interview that the police station was less than a mile from her house, not far, and that she walked there leaving the children with her sister-in-law but she did not know what time. She then said that lunch was the meal her husband was having. “They took him during lunch time. I would have gone towards the evening.” I clarified that she went in the evening to which she replied “yes”. I reiterated that her claim states that the CID came in the evening after she went to the police station.
At this point the claimant introduced for the first time that she went to the police station twice, one on the day her husband was taken and once the next day, “the first day in the evening and the second day in the morning”.
In her supplementary statement the claimant wife stated:
4.When the CID arrived, I let them in and they went into the hall and grabbed my husband by the shirt. He went outside with him and one of the CID told me they were taking him for questioning.
5.I followed them to the police station and begged for his release. I couldn’t understand what was happening because they only spoke Sinhalese.
6.The CID came again that evening and questioned me but they didn’t hurt me.
7.I returned to the police station in the morning with the same result.
8.My husband was released in the afternoon,…
11.I had previously stated I went to the police twice and that the CID visited me twice but the Case Officer was confused about those visits and when I was assaulted and her questioning confused me.
At the review interview, the claimant wife said that they came twice: once the same evening and they questioned her and she could not understand them, and once when he was in hospital when she was slapped. It was put to her that her statement of 8 May 2010 implied there had been only one visit but her supplementary statement stated there were two visits by the CID:
5.I followed them to the police station and begged for their release. I couldn’t understand what was happening because they spoke Sinhalese.
6.The CID came again that evening and questioned me but they didn’t hurt me.
7.I returned to the police station in the morning with the same result.
8.My husband was released in the afternoon, came home at about 3.00pm and then went to get treatment for his injured legs.
9.While he was absent, the CID returned and one of them slapped me when I said he wasn’t at home…”
She replied that “we had tension and confusion about all this”.
4. The claimant husband’s movements after release from the police station
In his 8 May 2010 statement, the claimant husband states:
14As soon as I left the station I went to my work and applied for leave.
15When I came home I was told by my wife that my family had gone to the station to beg for my release. The same evening officers of the CID branch of the Sri Lankan army and army officers came to my wife’s house and beat my wife.
16I was concerned about my safety in Mannar and Sri Lanka. After I was released, I travelled with my family to Colombo where we arranged passports. We stayed in Colombo at this time for around two weeks.
In his supplementary statement, he states:
6.I was released the following afternoon and went home at about 3.00pm. I had blood on my legs from the assaults and I went to the hospital for treatment.
7.I returned to my home after 2 or 3 hours and my wife told me that the CID had come to search for me and had slapped her when she said I wasn’t there…
At the review interview he stated he was held overnight and released in the afternoon and returned to his home alone. He was asked about his injuries. He said they used barbed wire on his leg and it was bleeding. He said they also tied him upside down and beat him on his foot with an iron bar and so could not walk. He was asked if he needed medical treatment and he said he went to the hospital for treatment. He said he went to the Mannar Base Hospital and was there for two hours. He said he went to the hospital immediately that afternoon and about evening came home. He said he went to the hospital by himself by pushbike. He said he could not go by trishaw as no one would come to his assistance because he had been taken by the police. He said the hospital was about 5 minutes from home. …He said that he walked home from the police station when he was released and it took him about 30 minutes. He was asked who was at home. He said only the claimant wife and he told her what had happened. He said he did not go inside and could not see if his mother was inside. He said the claimant wife was happy to see him. …He said that the next day he did not go to work. He said he sent a letter asking for two years unpaid leave.
At the review interview, it was put to the claimant husband that in his statement of 8 May 2010 (at point 15) he had said “As soon as I left the station, I went to work and applied for leave” whereas he had just said that he had sent a letter the next day. He said that he had tried to tell the Reviewer earlier on that, after he had been released, he had gone to his office before he had returned home and then had gone to the hospital. He claimed that he had not been given an opportunity to say that. The Reviewer asked him what point 15 in his statement of 8 May 2010 referred to and he said that it meant that he had had to explain his absence from work. He said he lived some eight minutes from work.
5. Whether the claimant entered his house before he went to the hospital
At his review interview the claimant husband said that he walked home from the police station when he was released and it took him about 30 minutes. He was asked who was at home. He said only the claimant wife and he told her what had happened. He said he did not go inside and could not see if his mother was inside. He said the claimant wife was happy to see him.
At her review interview the claimant wife said that she begged the police to release him. She said he came home in the afternoon. She said he had wounds and so he went to the hospital for treatment. She said he came inside and present in the house were his two sisters, his mother and “children”. She said he saw these people and told her he had been beaten and the others were present to hear him say that.
At his re-interview, the claimant husband was asked to describe his movements after his release by the CID. He said he went to his office to request leave and then walked home. He said when he went home he spoke to the claimant wife but did not notice if anyone else was there. It was put to him that the claimant wife had said that he had entered the house and that his sisters, his mother and children were present and had heard what he had to say, but that that was not in accordance with his earlier evidence that only the claimant wife was at home and that he had not gone inside. He replied “I didn’t know”. He said he was under considerable tension and that at the time he had been holding his head with his hands. He said maybe his sisters were there but he did not notice them.
6. The claimant husband’s injuries
The claimant husband at the review interview stated that the hospital and given him ointment and had bandaged his right leg.
The claimant wife at the review interview stated in the late evening the claimant husband came home and there were bandages on his leg and hand.
At his re-interview, the claimant husband was asked again about what wounds were treated at the hospital. He said he also had some plaster on his left foot apart from his bandaged right leg. He was asked if he had bandages elsewhere and he said he did not. It was put to him that the claimant wife had said he also had a bandaged right hand. He then said he had had a bandage on his right hand too but he had taken it off and hid it from the claimant wife. It was put to him again that the claimant wife said he had a bandage on his right hand. He again said he had taken the bandage off.
7. When the family moved into the claimant brother’s home
Both the claimant husband and the claimant wife stated in their 8 May 2010 statements that they stayed at the claimant brother’s place after travelling to Colombo to arrange the passports. Thus, the claimant brother stated that he and his family
“travelled back to our own home. When I returned to my home I met with my brother who was there visiting our mother who stayed at my home. My brother told me that the CID police had come to my home and harassed my mother asking her for my whereabouts. My brother told me that I should take my family to his place. I then travelled to my brother’s home at Shanthipuram in Mannar with my family. I stayed at my brother’s place for around 15 days.
Similarly, in his evidence at the review interview, the claimant husband said that after they had been to Colombo, his brother invited him to stay at his house because the CID was looking for him. His brother said the CID had come to the claimant’s house several times while he and the family were in Colombo. The claimant husband said he stayed at his brother’s house for about 15 days after they came back from Colombo.
However, at the review interview, the claimant wife said the police left and in the late evening the claimant husband came home and there were bandages on his leg and hand. She said nothing else happened that evening. She said they feared the police could come again so they went to his brother’s house and they stayed at his brother’s house from then on before the family went to Colombo
At the review interview, it was pointed out to her that in her 8 May 2010 statement she stated:
11.My husband returned home the next day. My husband was scared for his safety and so we immediately travelled to Colombo to arrange a passport. My family stayed in a lodge in Colombo while waiting for the passport.
She said this was not right as they stayed at his brother’s house until they went to Colombo.
However, when the claimant husband was re-interviewed, he said he would like to correct his statement about his brother. He said that before they went to Colombo, they had indeed lived in his brother’s place for three days and again after they returned from Colombo. He said that after staying three days at his brother’s place, they went to Colombo. It was put to him that the claimant wife had said they had had to wait for money from his aunt in Saudi Arabia and that it had been two weeks before they went to Colombo. He said she may have confused the two weeks with the two weeks they had spent in Colombo. It was put to him again that she was adamant that they were waiting for money from his aunt, and he said that he admitted he was wrong and that they had spent another two weeks there before going to Colombo. He said that during this time he used to come home to see his mother. It was the pointed out to him that his earlier evidence was that he had been living at his home and that he had noticed a white van in the neighbourhood. He said that he had seen the white van when he had returned home occasionally to see his mother.
8. How long before they went to Colombo
At the review interview, the claimant wife was asked how long it was from when the claimant husband came back from the hospital until they went to Colombo. She said that in around January they were in Colombo to get their passports. She said it would have been about two weeks until they went to Colombo after he returned from hospital. She said they could not go straight away as they had to get money from the claimant husband’s aunt in Saudi Arabia.
It was pointed out to her that at point 11 of her 8 May 2010 statement she says:
11. My husband returned home the next day. My husband was scared for his safety and so we immediately travelled to Colombo to arrange a passport. My family stayed in a lodge in Colombo while waiting for the passport.
She said this was not right as they stayed at his brother’s house until they went to Colombo.
9. White Vans
The RSA officer in her report states:
At interview claimant 1 [the claimant husband] was quite specific that white vans were following him in Colombo; “Wherever I went in Colombo I saw these white vans….they were following me”.
When asked her experience of white vans, claimant 2 [the claimant wife] gave a general description and mentioned her next door neighbour whose husband had been taken in one and later killed. She made no reference to any implications for her own family.
In her supplementary statement the claimant wife states:
12. The case manager asked what my experience of white vans was. I said I hadn’t had any experience with them. She didn’t [ask] about my husband’s experiences.
At his review interview, the claimant husband said that after he was released, the CID used to come in a white van outside their house. He said they parked at a grocery shop up the road. He was asked how often this happened and he said that even when his brother came to visit, he saw it. He was asked if the claimant wife knew about the white vans and he said yes she did. He said he had mentioned it to her and she may have seen it. …He was asked if he saw any white vans in Colombo. He said an agent helped him get the passport and otherwise did not go out and just he stayed at the “lodge” (hotel).
Possible finding:
In the light of the above apparent contradictions, the Reviewer may come to a finding that while there may have been a boarder staying at their home, their divergent evidence indicates that the alleged detention of the claimant husband and the alleged assault of the claimant wife did not in fact occur, that their claims in this regard are fabrications, and that there is no current interest by the authorities in them as claimed.
The applicant’s reply to the 9 February 2011 Letter
On 1 March 2011 the applicant’s representative replied to the 9 February 2011 Letter,[65] and relevantly, in relation to the apparent contradictions said this:
We are instructed that … [the applicant] was detained in Sri Lanka and his wife was subsequently assaulted, as he stated to you during the interview. … [the applicant] instructs that he has been truthful in his accounting of his experiences but that the trauma that he has faced has led him to forget details of his experiences in Sri Lanka, leading to the several inconsistencies within his interviews and statements.[66]
[65] “1 March 2011 Letter”.
[66] CB 135.
The IMR Recommendation
The IMR was prepared to:
a)accept that the applicant was detained in 1997 and subsequently released on reporting conditions;[67] and
b)find that there may have been a boarder named Ravi staying at the applicant’s home.[68]
[67] CB 136.
[68] CB 136.
The IMR, however, rejected the applicant’s claims because of “significant disparities in the evidence of the applicant and his former wife over time”, and also significant disparities between their evidence.[69]
[69] CB 136.
The IMR then detailed the specific disparities as follows:
1. The events when the claimant was allegedly arrested at home
In the light of the significant disparities in evidence with regard to where he allegedly washed his hands and whether his wife was present, the reviewer finds that he was not arrested at home as claimed.
2. When the claimant’s wife was assaulted
In the light of the significant disparities in evidence with regard to when his wife was allegedly beaten, the reviewer finds that she was not assaulted.
3. How often the police/CID came to their house to speak to his wife
In the light of the significant disparities in evidence with regard to the claims of the CID visit or visits to the home, the reviewer finds that the CID never visited their home to speak to his wife.
4. The claimant’s movements after being allegedly released from the police station
In the light of the significant disparities in evidence with regard to his movements after being allegedly released from the police station, the reviewer finds that he was never arrested, mistreated and detained at the police station as claimed.
5. Whether he went inside before he went to the hospital
In the light of the significant disparities in evidence with regard to whether he entered his house after being allegedly released from the police station, the reviewer finds that he was never arrested, mistreated and detained at the police station as claimed.
6. The claimant’s injuries
In the light of the significant disparities in evidence with regard to the evidence given of the injuries he allegedly suffered, the reviewer finds that he was never mistreated at the police station as claimed.
7. When the claimant and his family moved into his brother’s home
In the light of the significant disparities in evidence with regard when the family allegedly moved into his brother’s home, the reviewer finds that there was never any need for the family to no longer remain in their home and seek refuge with his brother.
8. How long before they went to Colombo
In the light of the significant disparities in evidence with regard to when the family went to Colombo, the reviewer finds that their evidence with regard to their movements to not be reliable.
9. White Vans
In the light of the significant disparities in evidence with regard to the alleged sighting of white vans, the reviewer finds that there was never any surveillance of the claimant and his family by the authorities from white vans.
The IMR then made the following findings:
These significant disparities in evidence as discussed above and with the claimant, leads the Reviewer to be unable to find that the authorities suspected Ravi of LTTE links, that the claimant was detained and tortured by the authorities, that his then wife was physically abused by the authorities, nor that the movements of the claimant and his then wife were monitored by the authorities. The reviewer believes these claims were fabricated so as to be able to gain a protection visa.
The disparities were discussed with the claimant and his wife (as recorded above), but the Reviewer finds their explanations (also recorded above) unconvincing giving the number and details of the disparities.[70]
[70] CB 137.
The IMR also found:
Ordinary Tamil citizens of Sri Lanka continue to face discrimination and levels of political suspicion on the part of the Sinhala majority and the Sir Lankan government. However, the reviewer has found no independent country information that would lead him to a finding that such discrimination and political suspicion would in the particular circumstances of the claimant, give rise to a real chance of serious harm to him.[71]
[71] CB 138.
The IMR also found that upon return it was likely that the applicant might well be identified as a failed asylum seeker and questioned about his overseas activities. The IMR, however, found nothing in the applicant’s background to be such as to arouse the suspicions of the Sri Lankan authorities such that he would be detained or interrogated.[72]
[72] CB 139.
The Court also observes that:
a)the IMR was aware that the “common law rules of natural justice apply”;[73] and
b)in addition to setting out the terms of the 9 February 2011 Letter and the findings which have been set out above (including the findings as to specific disparities in the evidence) the IMR had previously set out at length both the applicant’s and the Wife’s claims by reference to statements that they had made shortly after arrival at Christmas Island, and by reference to submissions made prior to the IMR hearing and the evidence given at the IMR hearing.[74]
Consideration of grounds
[73] CB 114.
[74] CB 115-127.
Ground one
Ground one of the Application is as follows:
1. The Reviewer denied the Applicant procedural fairness by requiring him to leave the hearing room at the time of receiving evidence from his wife
Particulars
(a) The reviewer was advised that the Applicant and his wife were separated and wanted their applications considered separately.
(b) For the purpose of the Applicant’s submission, the wife was an important witness in his case.
(c) The Reviewer required the Applicant to leave the hearing room at the time of receiving evidence from his wife.
(d) The Reviewer received evidence from the wife and purported to conduct a review of the wife’s case in the middle of the Applicant’s hearing and in the Applicant’s absence.
(e) Requiring the Applicant to leave the hearing room constituted a denial of procedural fairness notwithstanding the reviewer subsequently put to the Applicant perceived inconsistencies between the Applicant and his wife’s evidence.
Applicant’s submissions
The applicant’s submissions were as follows:
a)the common law rules of procedural fairness apply to the conduct of the IMR;[75]
[75] Citing Plaintiff M61.
b)a fundamental principle of fairness is that an applicant has a right to appear at a hearing where his interests are affected. It is critical, that an applicant has the right to appear, even if represented. Part of the reason for that is that the ultimate outcome of the proceedings may impact upon the life and liberty of an applicant;[76]
[76] Citing DZAAA & Ors v Minister for Immigration & Anor (2011) 250 FLR 423 at 433-434 per Lucev FM; [2011] FMCA 434 at para.18 per Lucev FM (“DZAAA”).
c)while it is true that fairness in administrative decision-making is not measured by reference to a judicial paradigm, judicial procedure ought to be an example of fairness in action;[77]
[77] Citing SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at 300 per Gleeson CJ; [2005] HCA 24 at para.8 per Gleeson CJ (“SAAP-High Court”).
d)before the hearing, the IMR was advised that the applicant and the Wife were separated and wanted their applications considered separately;[78]
[78] CB 95.
e)for the purpose of the applicant’s IMR Application, the Wife was a witness, as opposed to a joint applicant. The Wife was a witness in that she provided relevant, pertinent evidence to the applicant’s case and was questioned by the IMR in relation to the applicant’s case;
f)in light of the findings of the IMR, it is clear that the Wife was a critical witness;
g)the manner in which the IMR proceeded was unorthodox. With reference to the IMR Transcript the following can be ascertained:
i)notwithstanding the applicant and the Wife were separated, and arguably had different interests, they continued to be represented by the same migration agent;
ii)the IMR effectively stopped the Applicant IMR Interview and stated:
Reviewer: ... I think what we will do is we will stop for the time being, but I may need to talk to you again later. In the meantime, I will speak to your wife.[79]
[79] IMR Transcript at T32.
iii)the IMR asked a number of questions of the Wife, relevant to the applicant’s case. The questioning of the Wife also appears to have constituted the Wife’s separate interview, which produced a separate recommendation by the IMR;[80]
[80] IMR Transcript at T32-52. Exhibit 1 is the IMR’s separate recommendation in relation to the Wife.
iv)the IMR “resumes” the Applicant’s IMR Interview and informs the applicant that he has talked to the Wife and that “there are some things that she said are different to what you said and it is necessary for me to talk to you about that”;[81] and
[81] IMR Transcript at T52.
v)equipped with the new and further evidence of the Wife, the IMR proceeded to question the applicant and put contradictory matters to him;
h)what is apparent from the IMR Transcript is that the IMR required the applicant to leave the hearing room while his hearing, that is, the Applicant’s IMR Interview was still on foot.[82] As contended, the Wife was a critical witness in the applicant’s case and was so recognised by the IMR;
[82] IMR Transcript at T32.
i)as a basic rule of procedural fairness, the applicant had an entitlement to be present and to participate in the totality of the Applicant’s IMR Interview. This includes, but is not limited to, the right to give evidence, to attempt to clarify or test evidence, and, to ask questions of witnesses. While the IMR is not bound by the strict rules of evidence the IMR is governed by the rules of common law procedural fairness;
j)requiring the applicant to leave the hearing room constituted a denial of procedural fairness. The denial of procedural fairness was occasioned notwithstanding that the IMR attempted to subsequently put to the applicant perceived inconsistencies that had emerged between the applicant and the Wife;
k)the denial of procedural fairness can be characterised as follows:
i)denying the applicant the right to fully and meaningfully participate in the Applicant’s IMR Interview;
ii)upon “resuming” the Applicant’s IMR Interview, failing to put to the applicant all of the Wife’s relevant evidence; and
iii)upon “resuming” the Applicant’s IMR Interview, using the additional and new evidence of the Wife to further impugn the applicant’s credibility, before putting to him what the Wife had said;
l)an example of the practical unfairness occasioned can be found in some of the responses given by the applicant when the Applicant’s IMR Interview “resumed”. In the 9 February 2011 Letter sent to the applicant by the IMR, the IMR referred to the applicant’s explanation for the contradictions between the applicant and the Wife’s evidence as to where the applicant had washed his hands. The applicant stated at the “re-interview” that the Wife had made a mistake.[83] Conceivably, had the applicant been present at the hearing, the applicant could have put this to the Wife for comment and the IMR could have assessed her response, by reference to her answers and demeanour;
m)the fundamental unfairness that arose was not capable of being remedied by the 9 February 2011 Letter provided to the applicant. By the time these matters were put in the 9 February 2011 Letter, the damage was irreparable and the opportunities afforded by procedural fairness lost. This is reflected in the fact that the IMR Recommendation mirrors the matters raised in the IMR’s letter to the applicant;
n)referring to s.425 of the Migration Act, the Federal Court has held that an applicant must be provided a real opportunity to do that which he or she is invited to do, namely give evidence and present argument. As the Full Court stated in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR:[84]
Pursuant to s.425 of the Act the tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or empty gesture: ...[85]
o)an applicant who is not present in the hearing room for the whole of the hearing cannot do either of those things;[86] and
p)in this case, given how critical the evidence of the Wife was, the applicant’s absence from the hearing room during her evidence caused significant unfairness and was procedurally unorthodox and unfair.
[83] CB 128.
[84] (2003) 128 FCR 553 at 560 per Gray, Cooper and Selway JJ; [2003] FCAFC 126 at para.33 per Gray, Cooper and Selway JJ (“SCAR”).
[85] SCAR FCR at 560 per Gray, Cooper and Selway JJ; FCAFC at para.33 per Gray, Cooper and Selway JJ (footnote omitted).
[86] Citing SZBFM & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 451.
Minister’s submissions
The Minister submitted as follows:
a)the facts are similar to those in proceedings where an applicant had been required to absent herself while her daughter gave evidence to the Tribunal which were heard:
i)at first instance by the Federal Court;[87]
ii)on appeal by the Full Court of the Federal Court;[88] and
iii)on a further appeal by the High Court,[89]
and in which none of the Judges in those three separate cases suggested that there had been a denial of procedural fairness by virtue of the applicant’s absence. The other authorities referred to in the applicant’s Contentions are not on point; and
b)in circumstances where matters considered adverse arising from the Wife’s IMR Interview were put to the applicant when the Applicant’s IMR Interview “resumed”, and were then put comprehensively in writing, the applicant’s absence whilst the Wife was interviewed cannot be characterised as a denial of procedural fairness.
[87] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577 (“SAAP-Federal Court”).
[88] [2002] FCAFC 411 (“SAAP-Full Federal Court”).
[89] SAAP-High Court.
Consideration of ground 1
At the outset, it is necessary to observe that this was an administrative hearing. That said, it is nevertheless a little strange that the Wife’s IMR Interview also constituted her evidence in the Applicant’s IMR Interview. That strangeness, however, is simply explained: the Wife’s application for consideration as to whether or not an application for refugee status might be made, depends, to a significant extent, upon the same broad factual matrix as the claim of the applicant. In any event, it does not appear to be in dispute that the Wife’s IMR Interview was also evidence in the Applicant’s IMR Interview. The parties argued the matter on that basis.
In Naisauvou v Minister for Immigration & Multicultural Affairs[90] the Federal Court dealt with a case where the applicant had been appearing, assisted by a lay representative, before the Administrative Appeals Tribunal in relation to a decision to deport him from Australia after his conviction on various drug and assault charges. While the applicant was giving evidence the police arrived with a warrant for his arrest for breaching his parole. The Administrative Appeals Tribunal permitted the applicant to be arrested, and taken away, after he had given his evidence, but before other witnesses in his case had been called. No witnesses were called for the respondent Minister. The issue arose as to whether the fact of the applicant’s removal prior to the completion of the evidence on his case constituted a denial of procedural fairness.[91] The Federal Court referred to s.32 of the Administrative Appeals Tribunal Act 1975 (Cth) as providing that a party may conduct the case themselves or have another conduct it on their behalf, but as saying nothing as to whether a represented party was entitled to attend or remain at a hearing of the Tribunal even if represented.[92] The Federal Court went on in Naisauvou to cite Pochi v Minister for Immigration & Ethnic Affairs[93] where the Administrative Appeals Tribunal observed that:
… the exclusion of a party from a hearing which affects his interests is a much greater step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him – a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal.[94]
[90] (1999) 89 FCR 435; [1999] FCA 86 (“Naisauvou”).
[91] Naisauvou FCR at 440 per Moore J; FCA at para.16 per Moore J.
[92] Naisauvou FCR at 440 per Moore J; FCA at para.20 per Moore J.
[93] (1979) 36 FLR 482 (“Pochi”).
[94] Pochi at 508 per Brennan J. Justice Brennan (as he then was) was at the time President of the Administrative Appeals Tribunal.
In Naisauvou the Federal Court observed that the question was “whether the applicant was, in the result, denied a reasonable opportunity to present his case” and that consideration of that question involved “a consideration of the point at which the proceedings had reached when, by the course proposed by the Tribunal, the applicant was arrested and detained.”[95] The Federal Court found that:
… the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing … [his representative] in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inquiry.[96]
[95] Naisauvou FCR at 441 per Moore J; FCA at para.22 per Moore J.
[96] Naisauvou FCR at 442 per Moore J; FCA at para.27 per Moore J.
Citing observations made in the High Court in Kioa v West[97] the Federal Court concluded that the applicant had been denied the opportunity of raising for consideration matters which might not already have been obvious, and that that denial constituted a denial of procedural fairness.[98] On the basis of that finding the Federal Court concluded that the Administrative Appeals Tribunal decision should be set aside, and the matter remitted to the Administrative Appeals Tribunal for re-consideration.[99]
[97] (1985) 159 CLR 550 at 632 per Deane J.
[98] Naisauvou FCR at 442 per Moore J; FCA at paras.27-28 per Moore J.
[99] Naisauvou FCR at 446 per Moore J; FCA at para.42 per Moore J.
In DZAAA this Court dealt with an application in respect of applicants in migration judicial review proceedings who were represented legally at the hearings, were present at the hearings, but in respect of whom the Minister argued that it was not necessary to provide interpreting services to enable the applicants to understand the proceedings. In the course of an extensive review of the authorities this Court observed that:
Indeed, it is critical, in the Court’s view, that an applicant appears, even if represented. Part of the reason for that is that the ultimate outcome of these proceedings may impact upon the life and liberty of an applicant. Arguably, an applicant’s life and liberty are at risk by reason of the alleged fear of future persecution or harm to the applicant, if returned to the applicant’s country of origin/nationality. In relation to the applicant’s liberty there is a distinct analogy with criminal proceedings. Thus, whilst these are judicial review proceedings, their outcome may be of the utmost importance to each applicant. It is potentially sufficiently important to warrant that each applicant be able to properly and appropriately observe, and if necessary participate in, the final hearing of their application in this Court, if the applicant so wishes, even when represented by a lawyer.[100]
[100] FCR at 433-434 per Lucev FM; FMCA at para.18 per Lucev FM.
For reasons which do not pertain to an administrative hearing of the type conducted by the IMR the Court held that in relation to judicial review proceedings the opportunity to be told what occurred in the hearing after the event, or to have access to the transcript, does not avail an applicant of procedural fairness.[101] That view, however, specifically related to the judicial nature of proceedings in this Court, as opposed to the administrative nature of proceedings of the type in which the IMR is engaged.
[101] DZAAA at 435-436 per Lucev FM; FMCA at paras.25-26 per Lucev FM.
The findings made by the Federal Court in Naisauvou and by this Court in DZAAA would be pertinent to this matter if the IMR had not re-interviewed, or further interviewed, the applicant after the Wife’s IMR Interview, and if the IMR had not sent the 9 February 2011 Letter to the applicant seeking the applicant’s comment on the apparent contradictions which had arisen between the evidence of the applicant and the Wife. That this is an important distinction can be seen from an examination of the judgments in SAAP-Federal Court, SAAP-Full Federal Court and SAAP-High Court.
In the SAAP litigation the appellant was a follower of the Sabian-Mandean religion, who asserted a well founded fear of persecution if returned to Iran, on the basis of her religion. At the hearing before the Refugee Review Tribunal the Tribunal member advised at the outset that the appellant would be informed of any information considered to be adverse to her claim and given an opportunity to comment on that information. Evidence was taken from two witnesses, and the Refugee Review Tribunal then took evidence from the applicant’s eldest daughter, in the absence of the applicant. At that point in time, the applicant had not herself given evidence. The applicant’s migration adviser had remained in the hearing room whilst the applicant’s daughter gave evidence. In SAAP-Federal Court the Federal Court observed that through the migration agent, who remained in the hearing room during the applicant’s daughter’s evidence, the applicant had the opportunity of knowing what the daughter had said, including whether any of her evidence was different from that of the applicant. Further, the Refugee Review Tribunal specifically drew to the applicant’s attention for comment those elements of the daughter’s evidence which it considered to be adverse to the applicant.[102]
[102] SAAP-Federal Court at para.40 per Mansfield J; SAAP-Full Federal Court at para.5 per Heerey, Moore and Kiefel JJ.
In SAAP-Federal Court it was concluded that:
… assuming the rules of procedural fairness at common law apply to the decision making processes of the [Refugee Review] Tribunal … 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: …[103]
[103] SAAP-Federal Court at para.43 per Mansfield J.
In SAAP-Federal Court no further written submissions were made on behalf of the applicant following the Refugee Review Tribunal hearing.[104] In SAAP-Full Federal Court before the Full Court of the Federal Court the issue of common law procedural fairness was not the subject of any specific findings, the Full Court of the Federal Court merely observing and seemingly accepting what had been determined by the Federal Court at first instance.[105]
[104] SAAP-Federal Court at para.42 per Mansfield J.
[105] SAAP-Full Federal Court at paras.12-13 per Heerey, Moore and Kiefel JJ.
In SAAP-High Court it was unnecessary for the majority Justices to deal with the matter of common law procedural fairness, and the matter was only dealt with, to any significant degree, by the minority Justices. In that regard, it was observed that:
The reasons given by Mansfield J for concluding that there was no want of procedural fairness are compelling. No successful challenge has been made to that aspect of His Honour’s decision, which was accepted by the Full Court.[106]
In short, the requirement that the first appellant withdraw from the hearing room during the questioning of her elder daughter did not, as it transpired, deprive her of the opportunity to learn of material adverse to her claim or to comment upon it.[107]
[106] SAAP-High Court CLR at 302 per Gleeson CJ; HCA at para.14 per Gleeson CJ.
[107] SAAP-High Court CLR at 338 per Gummow J; HCA at para.140 per Gummow J.
Another Justice in SAAP-High Court dealt with the procedural fairness issue, but found a breach of procedural fairness on a different basis, namely, that it was open to imply that there had been a promise to provide communication of a kind that the obligation attaching to s.424A of the Migration Act envisages would have been forthcoming from the Refugee Review Tribunal.[108]
[108] SAAP-High Court CLR at 345 per Kirby J; HCA at para.172 per Kirby J.
The duty of the IMR was to ensure that the applicant was given a reasonable opportunity to present his case, not to make sure that the applicant took best advantage of the opportunity to which he was entitled.[109] Having regard to Naisauvou and DZAAA the applicant was initially denied procedural fairness by the IMR by not being allowed to be present during the Wife’s IMR Interview. These were, however, administrative proceedings, and the IMR took steps, which negated any denial of procedural fairness arising from the failure to allow the applicant to be present during the Wife’s IMR Interview.
[109] Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J (with whom Fisher J agreed at 350) (“Sullivan”); Goodricke v Comcare (2011) 122 ALD 546 at 557 per Flick J; [2011] FCA 694 at para.60 per Flick J (“Goodricke”).
In this case, the applicant received the opportunity to deal with issues which the IMR considered might be adverse to the applicant:
a)in the Applicant’s IMR Interview, when it “resumed” after the Wife’s IMR Interview; and
b)by being invited to respond to the 9 February 2011 Letter from the IMR. It must be observed that that letter set out in what is, for a proceeding of this nature, extraordinary detail, the material which might lead the IMR to make a finding adverse to the applicant. It is further pertinent to observe that notwithstanding that opportunity, the applicant, in his email reply to the 9 February 2011 Letter failed to say anything other than to assert that he had been truthful in his accounting of the experiences.[110] It was a very limited response, drafted by the applicant’s lawyers, and one which took no particular issue with any particular aspect of the material which the IMR had indicated might lead to an adverse finding. The failure to take issue with that material at that time by the applicant, or by the applicant’s representative, undermines the valiant efforts made at hearing by Counsel for the applicant to suggest certain matters which might have been raised by the applicant had he been present during the Wife’s IMR Interview. Given the opportunity to respond to the IMR’s indication of matters which might lead to an adverse finding, the applicant, and the applicant’s representatives, did not take any issue with the procedure adopted by the IMR, and beyond asserting the truth of what had been said by the applicant to the IMR, raised no issues with respect to the relevant factual content or possible conclusions and findings that the IMR had foreshadowed in the 9 February 2011 Letter. Had they done so, in the context of administrative proceedings, the IMR would have been obliged to consider those matters. That the applicant and the applicant’s representatives failed to do so simply means that they did not take best advantage of the opportunity of which they were availed.[111] Further, no medical evidence was put before the IMR to support the contention that the applicant had forgotten details of his experiences in Sri Lanka due to the trauma associated with those experiences.
[110] SCB 13-14.
[111] Sullivan at 343 per Deane J; Goodricke ALD at 557 per Flick J; FCA at para.60 per Flick J.
On this application, Counsel for the applicant sought to criticise both the manner in which the IMR expressed findings concerning the significant disparities found by the IMR, and the manner in which the IMR conducted various aspects of the hearing. In relation to the manner in which the IMR expressed its findings as to the significant disparities it can be legitimately said that they are expressed in narrow and specific and repetitive terms. The repeated use of the formulaic “[i]n the light of the significant disparities in evidence with regard to” to introduce each of the significant disparities which were found tends to distract attention from the significance of those disparities. Overall, it is tolerably clear, as was suggested by Counsel for the Minister, that what the IMR is saying is that the disparities are so many, and some so marked, that the IMR generally did not believe the story told to him by the applicant. It was suggested that the so called “significant disparities” were not, in fact, significant disparities, and as such ought not to have led the IMR to disbelieve what the applicant had said. As is clear, however, from the significant detail of the then alleged significant disparities set out by the IMR in the 9 February 2011 Letter, there is evidence, in respect of each of the alleged significant disparities, on which it is open for the IMR to find that there were significant disparities, and to give to them such weight as the IMR saw fit.[112]
[112] SBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 963 at para.26 per von Doussa J (“SBBO”).
The significance of the disparities is all the more marked in this case when one considers that there are, in essence, just two incidents upon which the alleged well founded fear of persecution is based. The first, which occurred in 1997, was, for reasons set out in the IMR Recommendation, disregarded, as being no longer relevant to a well founded fear of persecution because the applicant was, as long ago as 1999, no longer required to report to the authorities and therefore, the IMR found, no longer of interest to them in relation to suspected LTTE activities. That left just the one incident in 2009, and its aftermath, in respect of which the significant disparities found by the IMR arose. The IMR made it clear at the Applicant’s IMR Interview that if he found that the applicant was of interest to the authorities because of suspected LTTE links then he would have no difficulty in concluding that the applicant had a well founded fear of persecution.[113] The IMR, however, needed to be satisfied as to the content of the events which were said to give rise to that well founded fear of persecution. The IMR made it clear at the Applicant’s IMR Interview that the approach that he would necessarily therefore have to take would be to examine the applicant’s account of the particular events, and the Wife’s account of those same events, and look at them both, and compare them, as had been done in the RSA Decision, which had found significant inconsistencies in the applicant’s own story, and as between the applicant’s story and that of the Wife. The IMR undertook that task fairly by putting those matters to the applicant:
a)at the Applicant’s IMR Interview when re-interviewing the applicant after the Wife’s IMR Interview; and
b)in a significant level of detail in the 9 February 2011 Letter.
Furthermore, the applicant’s representative remained throughout the Wife’s IMR Interview, as he was also the applicant’s representative, and the applicant would have had the opportunity, through the representative, of subsequently knowing what was said in the Wife’s IMR Interview, which was also part of the Applicant’s IMR Interview.[114]
[113] IMR Transcript at T29-30 and T57-58.
[114] SAAP-Federal Court at para.40 per Mansfield J.
The approach argued by the applicant would engage this Court, in the circumstances of this case, in impermissible merits review contrary to the accepted principles which flow from the High Court’s judgment in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors.[115]
[115] (1996) 185 CLR 259 (“Wu Shan Liang”).
In the circumstances, the applicant was not denied procedural fairness. He was given the opportunity to be informed of material adverse to his claim and to comment upon it. In this respect, the IMR went two steps further than in Naisauvou, by giving the opportunity to comment both at hearing and in response to subsequent correspondence, and one step further than in the SAAP litigation, by giving the applicant the opportunity to respond to further correspondence.
In all the circumstances, no case of denial of procedural fairness has been made out, and ground 1 must therefore fail.
Ground two
Ground two of the Application is as follows:
2. The Independent Merits Review decision is affected by apprehended bias.
Particulars
(a) A fair minded lay observer might reasonably apprehend that the Reviewer might not bring an impartial mind to the applicants case by reason of the following:-
(i) The Reviewer required the applicant to leave the hearing room when his wife gave evidence in his case.
(ii) During the hearing, the Reviewer accused the Applicant and his wife of collusion and questioned a security guard in relation to this allegation.
(iii) At hearing, the Reviewer’s questioning of the Applicant and his wife were directed towards eliciting inconsistencies in their evidence instead of assessing and reviewing the Applicant’s protection visa claims.
(iv) The Reviewer used perceived ‘significant disparities in evidence’ to reject the factual claims of the applicant, when such disparities could not logically or reasonably have led to such findings.
Applicant’s submissions
The applicant submitted as follows:
a)the test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided.[116] This rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings:
[116] Citing Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para.27 per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).
… regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned[117]
[117] Ex parte H ALR at 427 per Gleeson CJ, Gaudron and Gummow JJ; HCA at para.5 per Gleeson CJ, Gaudron and Gummow JJ.
and:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.[118]
[118] Ex parte H ALR 434-435 per Gleeson CJ, Gaudron and Gummow JJ; HCA at para.28 per Gleeson CJ, Gaudron and Gummow JJ.
b)unlike the test for actual bias, the question for apprehended bias is an objective one: whether a reasonable bystander (or fair minded lay observer) might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision maker is required to decide;
c)the question for determination when considering apprehended bias is not the state of mind of the decision-maker, but the state of mind of a reasonable bystander properly informed.[119] As the Full Court of the Federal Court stated in NADH:
[119] Citing NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 (“NADH”), quoting Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 per Gleeson CJ, McHugh, Gummow and Hayne JJ; [2000] HCA 63 at para.7 per Gleeson CJ, McHugh, Gummow and Hayne JJ.
The RRT must be independent and impartial. It must deliver justice. Justice must not only be done, it must be seen to be done. Justice can only be done by a decision maker who is not biased, but independent and impartial. Justice can only be seen to be done where a reasonable lay observer might not apprehend that the decision maker may bring a partial mind to the resolution of the question for decision.[120]
d)a combination of reasons are relied upon to support the applicant’s contention that a fair minded lay observer might reasonably apprehend that the IMR did not bring an impartial mind to the applicant’s case. The following factors are relied upon:
i)the IMR required the applicant to leave the hearing room when the Wife gave evidence in his case;
ii)during the hearing, the IMR accused the applicant and the Wife of collusion and questioned a security guard in relation to this allegation;
iii)at hearing, the IMR’s questioning of the applicant and the Wife was directed towards eliciting inconsistencies in their evidence instead of assessing and reviewing the applicant’s claims;
iv)the IMR used perceived “significant disparities in evidence” to reject the factual claims of the applicant, without engaging in a proper assessment of the evidence; and
v)the IMR failed to properly and fairly assess other aspects of the applicant’s protection visa claims.
[120] NADH ALR at 277 per Moore, Tamberlin and Allsop JJ; FCAFC at para.66 per Moore, Tamberlin and Allsop JJ.
With respect to the requirement that the applicant leave the hearing room during the Wife’s evidence, the applicant relied upon the submissions set out at paragraph 40 above.
In relation to the accusation of collusion the applicant submitted that:
a)the IMR accused the applicant and the Wife of collaborating with one another during the Applicant’s IMR Interview and the Wife’s IMR Interview. While ultimately the IMR accepted that there had been no such collusion, the IMR did accuse the applicant of collusion, and called evidence from the security guard. The relevant exchange is as follows:
Reviewer: I am very suspicious that you just spoke to your wife about that.
Applicant: No. The security did not allow us to speak. Even you can ask the security.
Reviewer: Are they outside?
Applicant: Yes he is.
Reviewer: Can we bring him in please. Hello. Do you speak Tamil?
Security: Yes
Reviewer: Come in, please. You just accompanied the wife across with the husband.
Security: .... okay.
Reviewer: Did they have a conversation?
Security: No
Reviewer: There were no conversation between?
Security: Not while I was in there.
Reviewer: So you’re absolutely convinced. So what happened? How did the swap-over occur?
Security: She was on the other side, the woman, and he is on the other side, so I went and (indistinct).
Reviewer: Good. So they didn’t have any contact?
Security: Yes
Reviewer: Thank you. I believe you ...[121]
b)that exchange lends support to an apprehension of bias on behalf of the IMR;
c)the IMR’s questioning of the applicant during the Applicant’s IMR Interview was focused on peripheral, circumstantial details. Very few questions were asked of the applicant as to his experience in detention; including where he was detained, by whom, how he was tortured and the nature of the interrogation. As the applicant commented at hearing:
Even the questions that you asked me when I am having my lunch, who was sit next to me, these are the bits I think that those are unnecessary questions because that when I am having lunch I know – I don’t know – normally I didn’t notice who was sit next to me or who was in my house and all, and also that I had the problem after that so I can’t remember so many things. So these are the questions that they’re confusing me a lot when you are asking these types of questions. So when the CID came and grabbed me, do you thinking that I’m looking at who was sitting there next to me or who was waiting there, or whatever the thing? But because I was anxious and I had the fear when they came to grab me.[122]
[121] IMR Transcript at T55.
[122] IMR Transcript at T30.
d)the IMR’s questioning of the Wife at the Wife’s IMR Interview was focused on obtaining evidence on issues canvassed by the applicant to check for consistency. The Wife’s IMR Interview apparently constituted the hearing of the Wife’s separate claim. The IMR failed, however, to ask the Wife any questions as to her separate claim, until the Wife raised the issue herself:
Reviewer: Okay, all right. Was there anything else you wanted me to raise?
Adviser: No
Wife: But I separated from my husband and I’m living with my two children here now, so I can’t go back to my country because I do not know anyone there ...[123]
e)a reasonable bystander (or fair minded lay observer) might reasonably apprehend that the decision-maker was focused on eliciting inconsistencies in the applicant and the Wife’s evidence, as opposed to hearing and considering the independent claims of the applicant and his Wife.
[123] IMR Transcript at T50.
With respect to the use of significant disparities to reject all claims the applicant submitted as follows:
a)at hearing, the IMR told the applicant:
It is because there is no way that I can believe that a person called Ravi stayed at your place or that you were taken by the police, unless what I hear from you and your wife is in general consistent.[124]
[124] IMR Transcript at T31.
b)such comments invoke a reasonable apprehension that the IMR had a fixed view of the issues it had to decide; in other words, that the IMR was minded to find that the applicant’s claims were fabricated if his evidence was not “generally consistent” with the Wife’s evidence;
c)even if the evidence of the applicant and the Wife was not generally consistent, as a matter of reason and logic, this should not have led to an inescapable conclusion that Ravi did not stay at their house or that the applicant had not been taken by the police. Upon a proper assessment of the evidence, for example, it was open to the IMR to prefer the applicant’s account or to find that the Wife was mistaken in some aspects of her evidence or vice versa. It was also open to the IMR not to place great weight on the discrete inconsistencies because the overall accounts were consistent. There were a number of different conclusions open upon a proper analysis and consideration of the applicant’s case;
d)the applicant contends that the IMR did not engage in a proper assessment of his case or an assessment of the quality or reliability of the evidence, but rather rejected all the claims of the applicants because of the discrepancies. This can be inferred by the reasons as provided by the IMR. For example, the IMR made the following findings in the light of the significant disparities in evidence with regard to:
i)where the applicant allegedly washed his hands, and whether the Wife was present, the IMR finds that the applicant was not arrested at home as claimed;[125]
ii)when the Wife was allegedly beaten, the IMR finds that the CID never visited the applicant’s home to speak to the Wife;[126] and
iii)the applicant’s movements after being allegedly released from the police station, the IMR finds that he was never arrested, mistreated and detained at the police station as claimed; and
e)each discrete finding by the IMR was worded in very similar terms.
[125] CB 136.
[126] CB 137.
With respect to the failure to properly and fairly assess other aspects of the applicant’s claims the applicant submitted that there was a failure by the IMR to properly assess and consider the applicant’s claims in relation to whether the applicant would suffer harm upon his return to Sri Lanka as a failed asylum seeker. The IMR found that “he may well be ... questioned about his activities overseas. However, the reviewer finds nothing in his background to be such as to arouse the suspicions of the Sri Lankan authorities such that he would be detained and interrogated...”.[127] The finding was made without any reference to the applicant’s claimed detention in 1997 for suspected links to the LTTE and his subsequent three years reporting conditions and monitoring. Significantly, the IMR accepted this claim but then failed to have regard to it in relation to the future risk that the applicant may face as a failed asylum seeker returned to Sri Lanka.
[127] CB 139.
Minister’s submissions
The Minister agrees with the applicant’s submissions with respect to the legal test for apprehended bias.
With respect to the applicant’s absence during the Wife’s IMR Interview the Minister says that there is no merit in this contention for the reasons given in relation to ground 1.
With respect to suspected collusion between the applicant and his Wife the Minister submits that the context in which the hypothetical reasonable apprehension is to be considered includes the findings in the RSA Decision that inconsistencies between the stories of the applicant and the Wife lead to the conclusion that the allegations of principal importance had been fabricated. On independent merits review it was, therefore, necessary and appropriate to guard against collusion, which is why the interviews were conducted separately. There were reasonable grounds for the suspicion as to collusion, but in any event the suspicion was allayed.
With respect to the questioning of the applicant and the Wife focussing on inconsistencies the Minister submits that in order to assess the reliability of the allegations it was necessary and appropriate to focus on matters about which both the applicant and the Wife could comment.
With respect to the use of significant disparities to reject all of the claims the Minister submitted that:
a)the fact is that the IMR simply did not believe the claims of the applicant and the Wife that the applicant was arrested, detained and mistreated. The IMR reached this conclusion because of the significant disparities. This may not have been the only possible conclusion, but was clearly a reasonable conclusion in all the circumstances. The applicant merely speculates that the IMR did not engage in a proper assessment. A fair minded lay observer could not have a reasonable apprehension based on such speculation; and
b)the IMR’s comments read in full,[128] demonstrate an open and impartial mind to the hypothetical fair minded lay observer.
[128] IMR Transcript at T31and T52.
With respect to the alleged failure to properly and fairly assess other aspects of the applicant’s claims the Minister submitted that:
a)the applicant alleges a finding[129] was made without assessment of the effect of the 1997 detention. It is clear, however, that the IMR found with respect to the 1997 detention that, “as he was eventually released from his reporting conditions, he was not suspected by the authorities of having LTTE links or of being a threat to the government.”[130] It is clear that the IMR considered the applicant had been of no interest whatsoever to the government for over a decade and, therefore, he would be unlikely to be detained and interrogated on his return to Sri Lanka; and
b)there is no merit in the contention that a fair minded lay observer might reasonably apprehend that the IMR did not bring an impartial mind to the applicant’s case, as there are no proper grounds for such an apprehension.
[129] CB 139.
[130] CB 136.
Consideration of ground 2
There is no dispute concerning the appropriate test with respect to apprehended bias being that set out in Ex parte H, and cited above.[131]
[131] See para.62(a) above.
With respect to the IMR requiring the applicant to leave the hearing room whilst the Wife gave evidence, that is procedurally unfair, of itself, for reasons set out above, but not procedurally unfair in all the circumstances of this case, for reasons also set out above. Having regard to the conduct of the matter before the RSA officer, and the content of the RSA Decision, a fair-minded lay observer would appreciate that an issue in these proceedings was the significant disparity in evidence concerning the events surrounding the matters said to give rise to a well founded fear of persecution. The IMR explained the issue of significant disparities in the evidence between the applicant and the Wife at the commencement of the Applicant’s IMR Interview.[132] The IMR also explained this issue to the applicant before adjourning to commence the Wife’s IMR Interview.[133] Thus, whilst it may have been a procedural error of itself, the fair-minded lay person would no doubt have understood why it was that the Wife’s evidence was taken in the absence of the applicant given the IMR’s concerns with respect to evidential disparities. Far from revealing apprehended bias, the fair-minded lay observer would be likely to apprehend that the IMR was minded to grant the application, save for the issue of the evidential disparities, about which the IMR, not unnaturally, needed to be satisfied, particularly given the RSA Decision. The IMR’s questioning was directed towards the evidential disparities because those disparities were effectively the only matters in issue.[134] The IMR’s questioning was “not … for the purpose of curtailing the applicant’s right to a fair hearing nor was it a manifestation of a disposition against the applicant.”[135]
[132] IMR Transcript at T2.
[133] IMR Transcript at T31-32.
[134] IMR Transcript at T29-30 and T57-58.
[135] Naisauvou FCR at 443 per Moore J; FCA at para.31 per Moore J.
The suggestion that a fair-minded lay observer would consider that the IMR had not engaged in a proper assessment of the evidence is, in the Court’s view, without foundation. The IMR, both at the Applicant’s IMR Interview and the Wife’s IMR Interview, has exhaustively dealt with the evidence, and put matters adverse to the applicant, both at the Applicant’s IMR Interview and subsequently in the 9 February 2011 Letter. Ultimately, what the applicant seeks to have the Court do in this case is re-assess the evidence under the guise of apprehended bias. To do so would be to impermissibly re-weigh the evidence,[136] and to engage in impermissible merits review.[137]
[136] SBBO at para.26 per von Doussa J.
[137] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
As to the accusation of collusion, it is necessary to understand the context in which that accusation arose. The relevant transcript extract is set out above.[138] That context was that the applicant, unprompted, mentioned something that he forgot to mention earlier. The IMR, obviously suspicious, queried whether or not the applicant had spoken to the Wife concerning that matter. The applicant told the IMR that security did not allow them to speak, and that the IMR could ask the security officer about this. The IMR, having inquired as to whether or not the security officer was outside, which he was, had him brought in and briefly questioned him to ensure that there was no contact between the husband the Wife. In the context of a seeming inconsistency sought to be explained away unprompted, against the background of the significant disparities originally identified in the RSA Decision, and the IMR’s explanation to both the applicant and the Wife that, in reality, the only issue which the IMR needed to deal with was the significant disparities in the evidence, a fair-minded lay observer might think that the IMR had an overly active imagination or an unduly suspicious mind, but not one which manifests apprehended bias. A fair-minded lay observer would see the IMR’s actions as a reaction to a particular comment in a particular context, and not something which would indicate any hint of predetermination. Put simply, the IMR perceived an issue, raised it, and dealt with it. That is not only what he did, but what he ought to have done in the circumstances, if he suspected collusion in those particular circumstances, which he obviously did.
[138] See para.64(a) above.
In relation to the IMR telling the applicant that he could not believe that a person called Ravi stayed at his house or that the applicant was taken by the police unless what he heard from the applicant and the Wife was in general consistent, the Court considers that the hypothetical fair-minded lay observer, in the context of the particular circumstances as explained by the IMR at the outset of the proceedings and against the background of the RSA Decision, would no doubt understand that those comments were meant to convey that the IMR might not believe the applicant’s account if there were significant inconsistencies or disparities between the evidence of the applicant and the Wife. This would be seen as nothing more than a fair warning to the applicant of one possible outcome of the proceedings.
The rejection of all of the applicant’s claims because of the disparities in the evidence was a course open to the IMR. It might not have been a course which every IMR, or a different IMR, might have adopted. Nevertheless, the fair-minded lay observer would understand that it was possible for an IMR, on the basis of the totality of the evidence, to come to a view that there were significant disparities in the evidence of the applicant and the Wife, and that that cast doubt upon the applicant’s entire story. At the end of the day what is put forward as apprehended bias, is nothing more than the weighing of the evidence, and a credibility finding which was open to the IMR, and a matter exclusively for the IMR.[139]
[139] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J; Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577 at 594-595 per Buchanan J; [2010] FCAFC 159 at para.63 per Buchanan J.
With respect to the alleged failure of the IMR to bring to account the applicant’s detention in 1997 for suspected links to the LTTE and his subsequent three years of reporting conditions and monitoring, it is obvious that the IMR considered that the applicant’s release from reporting conditions, his wholly undisturbed life[140] until the disappearance of Ravi and the applicant’s subsequent arrest and one night of detention, meant that the applicant was not, and continued not to be, a person of interest to the government, and therefore a person unlikely to be detained and interrogated on his return.
[140] From 1999 to 2009 “[n]othing happened. I lived very happily with my family. I worked at the RDH Road Authority.” IMR Transcript at T5.
The IMR was careful to observe during the course of the Applicant’s IMR Interview that he had “not in any way made up my mind yet and that is why I want to talk to you.”[141] And when he wrote the 9 February 2011 Letter he referred to the disparities in the evidence in appropriate and neutral terms as “apparent contradictions”.[142] Having regard to the individual incidences alleged to be apprehended bias, and also to an overall view of them, the Court considers that the fair-minded lay observer would not think that there was any possibility that the IMR had pre-determined this issue.
[141] IMR Transcript at T52.
[142] CB 127-128.
In all the circumstances no case of apprehended bias has been made out, ground 2 must therefore fail.
Conclusion and order
The Court has concluded that neither of the grounds of the application have been made out. The application must therefore be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 8 November 2012
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