M51 of 2005 v Minister for Immigration
[2006] FMCA 606
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M51 of 2005 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 606 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether apprehended bias – whether tone and content of Tribunal’s comments reveal bias – Tribunal entitled to vigorously question Applicant and express disbelief – application dismissed. |
| Migration Act 1958, s.415 |
| VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 23 NADH/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Re Refugee Review Tribunal and Another; Ex Parte H and Another (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 WAHS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 417 |
| Applicant: | APPLICANT M51 OF 2005 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1252 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr M Champion |
| Counsel for the Respondents: | Mr R Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1252 of 2004
| APPLICANT M51 OF 2005 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which had affirmed a decision of a delegate of the First Respondent refusing to grant the Applicant a protection visa.
The Tribunal decision, dated 14 February 2003, made significant adverse credibility findings against the Applicant and/or found claims to be implausible. The sole ground for review, which was pursued at the hearing was apprehended bias. To understand that ground it is necessary to set out the background and the Tribunal's findings.
The Claims
In the submissions of the First Respondent filed 18 May 2005 the following sets out an agreed summary of the claim:-
·The Applicant and his brother were strong supporters of the Pakistan Muslim League (PML).
·The Applicant was closely related to a former member of the Pakistani National Assembly who, after the military coup, was detained.
·As a result of his support for the PML on several occasions the Applicant had been arrested, interrogated and kicked and punched by police.
·The police laid false terrorism charges against the Applicant.
·From October 1999 to June 2000 the Applicant was in hiding.
·In early 2000 the Applicant's brother disappeared.
·With the assistance of an agent the Applicant fled Pakistan in July 2000.
·Since his arrival in Australia the Applicant had been warned by friends and relatives in Pakistan that he should not return because "the security forces have me on the wanted list".
The Applicant, who is a citizen of Pakistan, had arrived in Australia on 12 July 2000. On 3 August 2000 he lodged with the First Respondent's Department an application for a protection visa. The summary of the background to the claim arises from the accompanying statement to the application dated 1 August 2000.
The Tribunal's Hearing and Decision
The Tribunal conducted a hearing on 26 September 2002. At the hearing the Applicant was assisted by an interpreter and it is noted that at least for part of the hearing a friend of the Applicant's attended the hearing.
Apart from the claims referred to earlier in this judgment arising from the statement accompanying the protection visa application, the Applicant made the following further claims before the Tribunal:-
·From 1997 to 2000 he held the position of "secretary of information" for the Sargodha division of the PML.
·He was the subject of false charges laid by the Pakistani authorities.
·In January 1999 he was attacked by "a few people" who "belonged to the PPP".
·The Pakistani authorities had falsely accused him of brawls and fighting and if he returned to Pakistan he would be imprisoned.
An untranslated card was submitted to the Tribunal in support of the Applicant's claim that he had held the position with the PML for a period from 1997 to 2000. The Tribunal questioned the Applicant in relation to the card and raised specific issues concerning the genuineness of it. Specifically he was asked why he had not brought the information forward earlier and the Applicant responded that he did not know what information he had to provide. Further questions were put to the Applicant concerning the membership numbers of the Sargodha division of the party and that the date he claimed to become the information secretary of that political organisation he was only 17 years old. Other issues concerning the genuineness of the card were raised by the Tribunal, including the likeness on the photo of the card to the Applicant (Court Book page 87). Another document was produced at the hearing which was claimed to be from the Sargodha division of the PML. That document, dated 1 February 1997, purporting to certify the Applicant had been appointed as a secretary of the city branch and that he was to perform duties according to the post he had been given. Again, the Tribunal asked why the document had not been translated and the Applicant responded that it was just "lying in his bag" and he just took the documents out two or three weeks ago.
Another document, namely a photocopy of a First Information Report (FIR) was produced. When asked where the FIR had been obtained, the Applicant told the Tribunal that one of his friends who works in a bank got it from the police station, obtained a photocopy and sent it to him. The Tribunal again questioned the Applicant closely in relation to this document.
Relevant country information was put to the Applicant which included reference to that information to what the Tribunal described as "country information concerning the prevalence of fraudulent documents in Pakistan" (Court Book page 91). In its "Findings and Reasons" the Tribunal states the following at Court Book page 102-103:-
“Having taken into account all the applicant's claims, the Tribunal finds that there is not a real chance that the applicant will face serious punishment or penalty or significant detriment or disadvantage so as to constitute persecution now or in the reasonably foreseeable future for any Convention reason, actual or imputed, if he returns to Pakistan.
In reaching its conclusion, the Tribunal has taken into consideration all the evidence, including information lodged by the applicant.”
In the First Respondent's submissions specific findings of the Tribunal which led up to its conclusion are accurately set out as follows:-
“(a) country information did not support the applicant’s claim that the military government had been particularly harsh against PMI. members [CB 93.10];
(b) rather, the government had targeted people alleged to have taken part in corruption under previous administrations [CB 94.11];
(c) on the applicant’s own evidence, there was nothing to suggest that he had been engaged in corruption or had attracted the adverse attention of the authorities on that basis [CB 94.2];
(d) on the basis of country information indicating that political parties were permitted to participate in Pakistani elections in 2002, political activists had not been imprisoned or forced to flee the country in the maimer claimed by the applicant [CB 94.5-6];
(e) in any event, the applicant had a low political profile in Pakistan [CB 99.4-5 and 101.7];
(f) contrary to his claims, the applicant had not been the information secretary for the PML in the Sargodha district branch because he “displayed a lack of the most elementary knowledge of the organisation” and it was not credible that he would be appointed to this position at the age of 17 years old [CB 98.3-7];
(g) his activities had not attracted adverse attention from the authorities [CB 95.5 and 101.7];
(h) the applicant was not on a “wanted list” because he was able to depart Pakistan via an airport on his own passport [CB 95.6 and 100.7];
(i) the applicant had not had false charges laid against him and a FIR had not been issued against him [CB 100.7 and 102.8];
(j) it could not be accepted that the documents lodged by the applicant with the Tribunal (that is, the PML card, the letter from the PML and the FIR) were genuine [CB 95.7-99];
(k) the applicant had not been attacked by PPP political opponents before the military coup [CB 99.5-8];
(1) the applicant had not been in continuing trouble with the police such that he had been arrested and mistreated many times [CB 100.4 and 102.3];
(m) as a consequence, the Applicant had not gone into hiding [CB 102.3];
(n) on the evidence before the Tribunal, there was nothing to connect the disappearance of the applicant’s brother with any claims of the applicant [CB
100.9];
(o) on the evidence before the Tribunal, there was also nothing to connect the detention of leading political figures with any claims of the applicant [CB 101.3];
(p) throughout the hearing, the applicants evidence was “evasive”, “vague” and “unconvincing” [CB 101.3-5];
(q) the applicant was not a credible witness [CB 102.4].”
Applicant's Submissions
As indicated earlier, the sole ground of review in this application is apprehended bias.
The principles to be applied in considering apprehended bias are agreed by the parties to be set out in the helpful decision of Kenny J in VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 23 (VFAB) where her Honour states the following at paragraphs [25] and [26].
“25 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: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, 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. "[R]egard 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": see Ex part H, at 427. Further, their Honours posited, at 434-5, that:
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.
26 As in the present case, Ex parte H concerned the Refugee Review Tribunal. The Court held that, in the circumstances, having regard to the transcript of the hearing before the Tribunal, "a fair-minded lay observer or a properly informed lay person" might infer that there was nothing that the prosecutor could say or do "to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa": see Ex parte H, at 435 and compare Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at 71 per McHugh and Gummow JJ. In so holding, the Court referred to "the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events": see Ex parte H, at 435.”
Reference was also made to the nature of proceedings in the Tribunal referred to by her Honour in VFAB at paragraph [27] as follows:-
“27 In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at 435:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question ... .
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.”
The Applicant submitted that the court should not simply refer to the transcript of the hearing, but also listen to the tape-recordings which became an exhibit. The tape-recording commenced at 1.44 pm and concluded at 4.40 pm, that is, approximately three hours. It is noted, however, that only specific parts of the recording are relied upon.
In support of the submissions for the Applicant, further reference was made to the decision of Kenny J in VFAB where after considering the matter further, her Honour states the following at paragraphs [81] and [82]:-
“81 Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
82 I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 ("Applicant VCAT of 2002"): see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant's claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant's claim when the hearing commences: see s 425(1)-(2). The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim - that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.”
The Applicant relied particularly on part of paragraph [82] set out above where her Honour refers to what she describes as "the vice in this case". It was submitted that the same vice exists in the present case.
The Applicant relied upon six examples claimed to be illustrative of the vice that a fair-minded observer might infer that there was nothing that the Applicant could give by way of evidence or submit by way of argument that might change the Tribunal's mind that he had fabricated his claim.
Example A: Finding as to implausibility of the Applicant's explanation about his lost passport tainted everything that followed.
It was submitted that the first matter of any substance concerned the whereabouts of the Applicant's passport. It was noted that in its decision the Tribunal referred to the Applicant's explanation regarding his passport and that it put to the Applicant it did not find the explanation to be plausible. Relevantly it was argued that this issue arose early in the proceedings before the Tribunal when a number of questions were raised concerning the passport. It is relevant to set out the following extract from the transcript:-
“MS FORD: So these photocopies of your passport, they're all we've got now; photocopies of some papers.
INTERPRETER: I do also have photocopies.
WITNESS: Yes, this is my passport.
MS FORD: Have you got a photocopy of the whole passport or just the copies I ‑ ‑ ‑
INTERPRETER: I might have at home. I’m not sure.
MS FORD: When we asked you to bring your passport, if you didn't have it, why didn't you bring your photocopies or why didn't you write and say, "I haven't got a passport, but I've got photocopies?"
INTERPRETER: I did see my lawyer and I told him that I lost my passport. He said, "Don't worry. Just go without passport." He said, "Just go and tell the member" that I've lost my passport.
MS FORD: Did he?
INTERPRETER: When I was called to come in here and I was asked to bring my passport, and I did inquire from DIMA, but they said it would take a while to issue me a passport, and then I asked my solicitor, and they said, "No, no, you go without it."
MS FORD: Why didn't you go to your embassy or high commission and get a new passport when you lost it?
INTERPRETER: I was not aware of the system, how it works here, and nobody told me. I didn't have any people who could tell me. I was trying, but I didn't know where the embassy is. I did go to the consulate. It is close to my house where I live, and they told me where to go, but since I didn't have any means of transportation, I couldn't go there.
MS FORD: Where is it?
INTERPRETER: I don't remember. It's a long time ago.
MS FORD: I have a great deal of difficulty believing this story. A passport is such an important identification document. Whereabouts in Melbourne was it, if you didn't have transport?
INTERPRETER: About the suburbs, and to go around, I was a bit confused about going around in Melbourne, how to reach there.
WITNESS: I know my suburb. Sometime I come city, and confused.
INTERPRETER: I just try to stay at home most of the time, because I can come to the city, but still I get confused about that. Since even by the tram or train, public transport, tickets are a matter of concern to spend more money. I didn't used to go out anywhere. I used to stay at home.
MS FORD: I have even more difficulty in believing you if you tell me that because nothing is more important for you to have than your identification document of a passport.
INTERPRETER: When I lost my passport, I went to DIMA, and they said - they have given me sort of a card - identity card - which was showing about my passport, details about myself. They said that whenever I come next time to DIMA department, I should bring that identity card with me.
MS FORD: That's not much use to you really except to take to DIMA. Have you asked your lawyer how to get to your embassy or your high commission?
INTERPRETER: I did ask, but at the time, then I reminded I don't need the passport at the moment. Then I (indistinct) at first. I didn't have enough money to pay the fee of my solicitor. So that's why he used to give me not complete advice.
MS FORD: What about all your friends you were living with? Why couldn't they help you go to the embassy?
INTERPRETER: They all were busy, and since they were helping me with all other bills like electricity bill, my food bill. So that's why I didn't want to give them more trouble.
MS FORD: I have even more difficulty in believing that. This is such an important thing for you. Anyway, I'll move on from that. I don't feel very satisfied with what you're telling me about the passport. Tell me why you fled from Pakistan.”
It was submitted on behalf of the Applicant that the comment by the Tribunal which appears at the end of the extract where the Tribunal states, "I have even more difficulty in believing that this is such an important thing for you," could properly be described as a comment which is similar to the description in VFAB of being one where "virtually from the beginning of the hearing ... the member expressed her disbelief in his truthfulness."
Example B: Hostility in the exchange about the Applicant reading information on the card.
Reference was made to the reproduction of the card which appears at Court Book pages 29-30.
The Tribunal dealt with that material as indicated earlier in this judgment. It was argued that consistent with the theme of the hearing the Tribunal disbelieved that the photo on the card was the Applicant.
To understand the Applicant's submissions it is again relevant to set out the following extract from the transcript:-
“… My job was just to provide some information. I have this card. You won't be able to read it.
MS FORD: Whose pictures are they?
INTERPRETER: On the left is the (indistinct) and that other one is me. That was how I used to look when I was in Pakistan. Now I have changed.
MS FORD: Okay. You read out what it says on it so that the interpreter can interpret what you say.
INTERPRETER: On the top it says Pakistan Muslim League, Mohammed Shaheen, son of Sophie Mohammed Anwar, secretary for information. Those marks, he's pointing to the picture.
WITNESS: The picture is very old. Some people is confused, "This is not your picture." I have hair (indistinct) the same in my picture.
INTERPRETER: Two scars, he's pointing, "I have two scars here."
MS FORD: It doesn't look like you.
WITNESS: Yes, because there I have little bit hair and different style.
MS FORD: I can see you've got - the moustache doesn't make that much difference. You don't really look like that. Anyway, what else does it say? Secretary for information.
INTERPRETER: That's all.
MS FORD: That's all. What does it say on the back?
INTERPRETER: Same name and address and phone number.
MS FORD: Pakistan Muslim League, secretary for information - what, for the whole league?
INTERPRETER: It's a Sargodha division.
MS FORD: A what?
INTERPRETER: Sargodha division.
MS FORD: Does it say that on the card?
WITNESS: Yes.
MS FORD: Why didn't you read that out?
INTERPRETER: In Sargodha, those - the city part, I’m just a secretary of that city division.
MS FORD: How many secretaries?
INTERPRETER: In our area, only one. I was the one.
MS FORD: Why didn't you tell us about that before?
INTERPRETER: Before, I didn't know what sort of information I have to provide.
MS FORD: Is there a date on the card?
WITNESS: 2 February 1997.
INTERPRETER: 2 February 1997.
MS FORD: Look, I asked you to read out what was on the card and then for the interpreter to interpret it. I didn't ask you to select two or three things on the card. I asked you for what was on the card. I asked you what was on the back, and you said, "The same as the front." Now, this has taken 10 minutes to find out that there's a whole lot of things on the card that you did not bother to read out. I didn't write down the date. Read out the date in your language unless it's in English figures, and ‑ ‑ ‑
INTERPRETER: 2 February 1997.”
It was submitted that the Tribunal's comments which included "Why didn't you read that out" and the criticism from the Tribunal of the Applicant for not reading out information under the photo of an older man could be described as intemperate. The Applicant submitted that under the criticism from the Tribunal and in the face of apparent irritation and impatience it is understandable because this was the first time the Applicant had been in an interview situation of the kind which had occurred before the Tribunal.
Example C: Apparent unpreparedness to bring a mind open to persuasion to documentary evidence produced for the first time at the hearing.
Reference again was made to the extract concerning the card and the claimed failure by the Applicant to lodge the document before the Tribunal hearing. It was submitted that at the Tribunal hearing the Applicant was not represented and he required the assistance of an interpreter. Accordingly, it was submitted, it would not be as surprising as the Tribunal appeared to assume that the Applicant adopt the course of bringing with him the documents relevant to his claim. Reference was made to s.415 of the Migration Act 1958 (the Act) where the Tribunal has all the powers of the original decision-maker in relation to an application. It was argued that this is an inquisitorial process and documents have to be examined critically. In the present application it was submitted the Tribunal brought a pre-conceived attitude of disbelief to the documents before he had even looked at them. Specific reference was made to the FIR and it is relevant again to set out in some detail the following extract from the transcript:-
“MS FORD: But you haven't got any documents about the false cases lodged against you.
INTERPRETER: I have the copy of that FIR.
MS FORD: I have trouble believing this. Why have you got one now when you didn't have one before?
INTERPRETER: This is the first time I come across these type of cases. I didn't know what ‑ ‑ ‑
MS FORD: But you had a lawyer.
INTERPRETER: I would not pay him his fees, so he was not guiding me properly.
WITNESS: Yes, because I have no money. Now I get job, just two, three months I work.
INTERPRETER: If you need the photocopy of those documents, I do have it.
MS FORD: Why have you got them now and never let us have them earlier?
INTERPRETER: I have just realised now after discussing with you that those papers might be relevant.
MS FORD: Why did you think they mightn't be relevant?
INTERPRETER: Because you're asking the questions about the problems I faced there. So they can give you some sort of proof.
MS FORD: I can't believe this, because you were - I'll retract that. What I mean is I don't believe what you're telling me from one point of view, but what I mean is I can't understand why, when all the things you filled in asked you to supply relevant documents or said to you, if you haven't got them, list what you haven't got and what you're hoping to get. You see, you've filled in something that had all that on I; page after page asking you these things, but you didn't lodge them then, and in this last one you lodged, which I think your lawyer lodged, I'm not sure - the last one - yes, here it is. It asks you to send in all your new information, documents or submissions and send them as soon as possible. It says so on the form you filled in there.
INTERPRETER: I went to my lawyer and he just filled this form. He never told me to take all these documents or anything.
MS FORD: Did you show him your documents? Did you show the lawyer your documents?
WITNESS: No.
MS FORD: No?
WITNESS: No.
MS FORD: Why not?
INTERPRETER: I didn't know that I had to show all the documents to him. If somebody gave me advice about this, I could have.”
It was submitted that the tone used by the Tribunal, particularly when the Tribunal said, "I have trouble believing this" before she had even seen or even considered the document implied that she had dismissed the FIR as non-genuine before either seeing the document or hearing the Applicant's explanation.
Example D: Criticism of the Applicant as to the knowledge of the law in the FIR under which he was charged.
It was submitted that the Applicant was asked a number of questions about the FIR. Specific reference was made to the Tribunal's decision where it recites in part at Court Book p.88 the exchange which followed the production of the photocopy of the FIR as follows:-
“… He was asked where he obtained it and he said that when they put allegations on him, he got it out to see what the charges were that they had put against him. Asked again where he obtained the FIR, he responded that one of his friends who works in a bank, got it from the police station, obtained a photocopy and sent it to him. Asked how his friend who works in a bank had obtained the FIR, he responded that if you know someone at the police station you give a little money and they give you a photocopy. The Tribunal asked the applicant if he could remember the date of the FIR and he said that he cannot remember when it was issued. He then said he thinks it was issued in 1999 but he cannot remember the day or the month. He was asked what law or regulation he was supposed to have broken and he responded that they were having a demonstration and procession in support of their party and their leader, and the police put false claims against them for disturbing the peace and that sort of thing. He was asked again what law is mentioned under which the charge was laid in the FIR. He explained it was all false allegations. Asked again what law or regulation he was alleged to have broken he said that as his language is Urdu he cannot read it. The Tribunal put to him that the relevant part of the FIR was in English and the Tribunal had been able to read on the document the law under which he was charged. …”
It was noted that the document written in English referred to by the Tribunal was a document described as “Maintenance of Public Ordinance 16” referred to by the Tribunal in its decision at Court Book page 97. From the transcript the following exchange appears:-
“MS FORD: What law were you supposed to have broken? Do you remember?
INTERPRETER: We were having some demonstration and procession in support of our party and our leader, and then these police, they put some false cases against us for disturbing the peace and involving some sort of brawls, these kind of things.
MS FORD: What was the actual bit of the law? What does it say on here what the law is?
INTERPRETER: This is the normal procedure. When anything happened they file an FIR against the person.
MS FORD: That's not what I asked you. An FIR is a legal document. It states on it what law has been broken, what regulation, what law. What law or regulation does it state on your FIR that you are supposed to have broken?
WITNESS: I understood what you are saying.
MS FORD: You do understand?
WITNESS: Yes.
MS FORD: What is it? Which one?
WITNESS: I can't explain you.
MS FORD: I don't want an explanation. It actually says on it what law you've broken. I've read it. I can see it.
INTERPRETER: They are all false allegations that we got involved in some sort of disturbing the peace, we are fighting with the police. We are harassing other party members, like People Party.
MS FORD: It sets out - now FIR is a proper legal document.
WITNESS: Yes.
MS FORD: Right, and on it, it has to say which law or regulation has been broken. Now, I've got it in front of me and I’m actually reading which law or regulation has been broken. You tell me which one it is. You must have read it.
INTERPRETER: I can't understand this one.
MS FORD: You can't understand it. It actually says what it is. I'm reading it. It says. Now, come on, tell me. If this is your FIR.
WITNESS: Yes, I know this is my FIR.
MS FORD: And you're in trouble ‑ ‑ ‑
WITNESS: I can't read this one. This one is different writing. I read Urdu. My mother tongue is Urdu. I can't read like that.
MS FORD: This is written in English, this bit.
INTERPRETER: I don't know.
MS FORD: Surely you looked at it.
INTERPRETER: If I would have planned something, I could have read it, but it was just lying there. I just brought it with me. I never gave any importance to this paper. I didn't have any plan to bring this document with me.
MS FORD: Didn't you look at it?
INTERPRETER: Just casually I just had a look at that document.”
It was submitted that the Applicant's attempts to explain the substance of the charge, including reference to "disturbing the peace and involving some sort of brawls, these kinds of things" was used against the Applicant as evidence of evasiveness and untruthfulness. It was submitted that a comparison may be made to persons perhaps charged with theft and not many of them would refer to the specific provision in the Crimes Act. The episode serves, it was argued, as a further example that there was nothing that the Applicant could do to change the Tribunal's preconceived view that he had fabricated his account.
Example E: Remarks to the interpreter to the effect that it had been "very hard to get answers".
Again, it is useful to set out the context in which the comment was made "very hard to get answers" which appears from the following extract of the transcript:-
“INTERPRETER: No, I was not but they had a doubt. Excuse me, I will be leaving soon. Three officers are looking for me and I have to go to my work actually.
MS FORD: Okay. What time do you have to go?
INTERPRETER: I was booked till quarter past 4 today.
MS FORD: I'll have to speak to them about this - not you, not you.
INTERPRETER: Well, I wouldn't accept it if I know before it's going to go for longer.
MS FORD: Yes. Well, I had no idea it would take so long to get answers to these questions. They have been very hard to get answers to.
INTERPRETER: I understand, yes.
MS FORD: And I apologise, but I can't do anything ‑ ‑ ‑
INTERPRETER: I do apologise because if I know before I would do it happily.”
It was submitted that by the time these comments were made it was apparent, despite the hearing being incomplete and the Applicant not having a chance to comment on any of this country information, including the reference to widespread availability of fraudulent documents, that the mind of the Tribunal was closed. It was submitted that the Tribunal was simply "going through the motions". It was otherwise submitted the Tribunal was "building the barricades lest it be said that the Tribunal had not accorded the Applicant natural justice".
Example F: Use of country information.
Reference was made to the claim by the Applicant that in late 1999, shortly after a coup, the Applicant had been involved in a demonstration protesting the coup and supporting the former Prime Minister who has claimed the government had taken action against some of those involved. This was referred to in the Tribunal's decision (Court Book pp.86 and 91). Reference was made by the Tribunal to country information, noting that on 15 March 2000 an ordinance was issued banning all political gatherings held outdoors (Court Book page 91). It was argued the way in which the Tribunal used the country information it disbelieved the Applicant was at risk of future persecution for a Convention reason was a further point at the fact that an independent person may apprehend, that there is nothing that the Applicant could say that might change the Tribunal's mind about the claim. Reference was made to the Tribunal's reasoning of the political protest in the period from October 1999 to March 2000, after the coup but before the adoption of the March 2000 ordinance, would not have attracted possible adverse interests with the authorities. Such political protests not then being outlawed by the ordinance. Reference was made to the Tribunal's decision at Court Book page 91 where it states the following:-
“ … It also put to him that the ban on political processions and similar events did not come into force until March 2000 in Pakistan which was a later date than that when he alleged he had been in trouble for such a reason. …”
It was submitted there was no country information to the effect that political activity from October 1999 to March 2000 would not attract "trouble". It was submitted the opposite must be the case given the time immediately after the coup was going to be a time of maximum political tension in Pakistan.
It was submitted on behalf of the Applicant that the manner in which the Tribunal used country information to disbelieve that the Applicant was at risk of future persecution for a convention reason was a further indicator of the fact that an independent person may apprehend that there was nothing that the Applicant could say that might change the Tribunal's mind about the claim.
First Respondent's Submissions
The First Respondent submitted that the Tribunal's decision is not affected by apprehended bias. Again, reference was made to well-established principles in relation to apprehended bias and I accept the submission for the First Respondent that for the Applicant to prove the Tribunal's decision was affected by apprehended bias he must establish that a fair‑minded and informed person might reasonably apprehend the Tribunal might have brought an impartial mind to bear upon its decision (see NADH/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14]) (NADH).
The First Respondent correctly acknowledged that an apprehension of bias might arise from consideration of the Tribunal's conduct of its hearing and its reasons for its decision.
It was noted, however, that the proceedings of the Tribunal are inquisitorial proceedings and the Tribunal is entitled to vigorously test evidence presented by the Applicant. Reference was made to the decision of the High Court in Re Refugee Review Tribunal and Another; Ex Parte H and Another (2001) 179 ALR 425 where in a joint judgment Gleeson CJ, Gaudron and Gummow JJ relevantly state, and I apply in the present application, the following:-
“[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.”
The First Respondent submitted that applying the appropriate authorities to the present application the court should conclude that the Tribunal has simply made adverse credibility findings which are a matter for the Tribunal par excellence see Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at [67]. It was submitted that the Tribunal had vigorously tested the Applicant's evidence and has done so in a manner which would not constitute apprehended bias.
During the course of submissions the First Respondent noted that during the hearing the Tribunal vigorously tested the Applicant's evidence and it was argued that upon a fair assessment of the tapes and the transcript of that hearing it could not be claimed the Applicant was overborne or intimidated by the Tribunal's questions about his evidence. It was reasonable for the Tribunal to consider credibility an issue having regard to the failure of the Applicant to submit documentary evidence at an earlier stage in the Tribunal hearing and perceived discrepancies in the Applicant's evidence. The Tribunal argued it was entitled to test the Applicant's evidence, as it did, and any robust approach adopted by the Tribunal was open to it where it needed to properly test and examine assertions made by the Applicant (see WAHS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 417 at [24]).
It was submitted by the First Respondent that the Applicant must ultimately establish the apprehension of a possibility of predisposition, that is the predisposition of the Tribunal towards a result (see NADH at [20]). This had not been proved in the present case according to the First Respondent's submissions.
It was noted that the Applicant refers to specific instances by way of examples of the apprehended bias. The First Respondent referred to the hearing which occurred over almost three hours and submitted that the examples provided by the Applicant are not representative of the Tribunal's conduct throughout the whole hearing. In any event, it was submitted, the instances referred to earlier in this judgment do not disclose any apprehension that the Tribunal might have been disposed towards a particular result adverse to the Applicant. It was argued that a fair mind and an informed person would not reasonably apprehend that the Tribunal might have brought an impartial mind to bear on its decision.
The First Respondent submitted it was not improper for the Tribunal to point out weaknesses in the Applicant's evidence and to seek an explanation from the Applicant. Indeed, it was argued that to ensure the Applicant was afforded procedural fairness, it is arguable the Tribunal was required to confront the Applicant with matters which bore adversely on his credit or which brought his account into question. Reference was made to the decision of Kenny J set out earlier in this judgment in VFAB where her Honour found that occasional displays of impatience and irritation, whether justified or not, would not amount to disqualifying bias. The Tribunal in this case, it was submitted, was clearly entitled to take into account the Applicant's demeanour and his style of giving evidence. It made observations the Applicant's evidence was "evasive and vague" and those observations were open to it at the time.
The First Respondent dealt with each and every example relied upon by the Applicant. In relation to the passport issue, the comments made by the Tribunal were noted and it was submitted that the Tribunal reasonably regarded the Applicant's passport as a vitally important document. A fair assessment of the tapes and transcript does not reveal, according to the First Respondent's submissions, that the Tribunal's doubts about the Applicant's explanation "permeated all that follow" during the Tribunal hearing. It was submitted the Tribunal continued to ask questions pertinent to the elucidation of the Applicant's claim.
In relation to the question concerning the PML card, it was submitted that the Tribunal's question, "Why didn't you read that out?" is clarified in the context of the surrounding exchange between the Tribunal and Applicant set out earlier in this judgment. It was argued that when the Applicant later confirmed that further details were written on the card including "Sargodha division" it was entirely reasonable for the Tribunal to ask, "Why didn't you read that out?"
When dealing with the FIR and claimed failure to lodge documents before the hearing, it was submitted that although the Applicant's representative did not attend the hearing, the Applicant was otherwise assisted by representatives for the conduct of his case before the delegate and the Tribunal reasonably considered the Applicant could have discussed with those representatives his protection visa application and how best to substantiate the claim. Despite the Applicant's inability to understand English, it was noted the proceedings were interpreted and the Applicant attended the hearing with a friend. The documents ultimately produced at the hearing had been in the possession of the Applicant for a considerable period of time. It was submitted in dealing with that issue the Tribunal did not bring a "preconceived attitude of disbelief to the documents". It made an assessment about the genuineness of documents which was reasonable based on several grounds, only one of which concerned the late provision of the documents to the Tribunal. Reference was made to the other grounds which were set out in the Tribunal's reasoning, including the issue of why a large political party would appoint a 17‑year‑old boy as secretary of information for its division in a large city like Sargodha. That matter, along with others, it was argued were relevant to the Tribunal's assessment of the documentary material submitted by the Applicant and does not demonstrate apprehended bias. It was conceded that when the Applicant produced a copy of the FIR in the course of the hearing the Tribunal did state "I have trouble believing this". However, on a fair reading of the material and consideration of the tape, it was submitted the Tribunal was simply expressing frustration that the Applicant had not previously supplied the document and that documents were being "drip fed" to the Tribunal during the hearing. A display of irritation was understandable in the light of the long period of time since the Applicant had obtained the document and that he had been represented throughout a significant period. The comments did not amount to a disqualifying bias according to the First Respondent's submissions. When dealing with the issue of the Applicant's knowledge of the law in the FIR under which he was charged reference again was made to the exchange between the Tribunal and the Applicant set out earlier in this judgment. The questions, it was submitted, raised by the Tribunal concerning the specific offence to which the FIR referred to were entirely reasonable. The Tribunal, it was argued, fairly considered that if the Applicant relied on the document in support of his claims he would have a much better knowledge of its contents. That reasoning disclosed no apprehension of bias.
In relation to the difficulty expressed by the Tribunal concerning the time it took to get answers to questions towards the end of the Tribunal hearing it was submitted that whilst those observations might disclose some justified impatience with the Applicant, it did not give rise to any apprehension of bias. In any event, a fair reading of the transcript and assessment of the tapes reveals that it was entirely open to the Tribunal to find the Applicant was "evasive" and "vague" in giving evidence.
It was argued that the five specific examples arising out of the hearing do not either, individually or collectively give rise to apprehended bias.
A further separate issue concerning country information cannot be impugned according to the First Respondent's submissions. This does not constitute apprehension of bias, but rather the Applicant seeks impermissibly to re-agitate the merits of the Tribunal's findings of fact.
Reasoning
I accept and apply the principles of law referred to by Kenny J in VFAB and the passages from the High Court decision in Re Refugee Review Tribunal and Another; Ex Parte H.
In my view it is important to note that Tribunals are not required to sit "sphinx-like" whilst conducting a hearing. I accept that it is an inquisitorial process and further accept that in the course of that process it is appropriate in certain cases that the Tribunal ask questions and that sometimes the questioning process may be vigorous. I further accept that a failure by a Tribunal to necessarily test the evidence may lull the Applicant into a false sense of security on the basis that material received without question might be thought by an Applicant to have been accepted by a Tribunal. Whilst the Tribunal does not have to challenge each and every assertion of fact or each document presented in support of an application, it assists the process where the Tribunal vigorously questions an Applicant, particularly where there appears to be delay in the production of documents or inconsistencies in the material and evidence.
In my view, a proper reading of the extracts set out in detail earlier in this judgment in relation to each and every one of the examples relied upon by the Applicant reveals nothing more than a vigorous testing of the evidence, albeit that on occasions it may be concluded that this Tribunal has demonstrated a degree of impatience. However, that impatience which is evidenced in the examples selected during a three‑hour hearing amount, in my view, to no more than what was described by Kenny J in VFAB as being "occasional displays of impatience and irritation". It is not for this court to determine whether they were justified or not, although in the present circumstances one would be tempted to conclude that they were justified given what, in my view on a proper reading of the transcript, appears from an early stage to at least be justified. The mere fact that that Tribunal at an early stage has expressed concerned does not taint the process which occurred thereafter where in circumstances such as this case, the Tribunal has clearly sought to further question the Applicant in relation to the claim squarely put and relied upon by the Applicant. Had the Tribunal simply undertaken a cursory examination of material and not embarked upon the detailed exchange evident from the transcript, then the concern expressed in the thorough submissions made for and behalf of the Applicant may provide a basis upon which it could be concluded that a fair-minded lay observer or properly lay person might infer that there was nothing that the Applicant could do or say to change the Tribunal's preconceived that the Applicant has fabricated his account of events upon which he based his application for a protection visa. In this case, however, for the reasons indicated, I am not satisfied that a fair reading of the transcript justifies that conclusion.
Each of the comments raised in the examples relied upon by the Applicant need to be seen in the context of a number of questions asked in relation to the discrete topics. Whilst comments are made from time to time by Tribunal members which include expressions of having difficulty in believing an Applicant or something that an Applicant has said or even where complaints are made that the Applicant had not read out part of a document, it is my view that those comments made in the context of detailed questioning do not of themselves lead to a conclusion of apprehended bias.
I do not see any reason why the Tribunal should resist making a comment in relation to the passport, albeit early in the proceedings which followed questions and answers in relation to the loss of the passport and specifically followed a question concerning why the Applicant could not obtain the assistance of friends who could help him to go to the embassy. His response to that question was nonsensical when he said, "They all were busy and since they were helping me with all other bills like electricity bill and my food bill, so that's why I didn't want to give them more trouble." To suggest that somehow friends could not assist with the crucial issue of a lost passport because they were assisting the Applicant with electricity bills and food bills not surprisingly led the Tribunal to say, "I have even more difficulty in believing that. This is such an important thing for you." I do not see any basis upon which that comment, following as it does from the response after some questioning concerning the important issue of passport could lead to a conclusion that the Tribunal at an earlier stage had demonstrated apprehended bias.
Likewise, towards the end of the proceeding it was clear that the interpreter was not going to be available for much longer and the exchange whereby the Tribunal expressed the view, "Well, I had no idea it would take so long to get answers to these questions," and where it says, "They have been very hard to get answers to," does no more than summarise the process that was evident throughout the transcript which arose principally due to the vague answers of the Applicant when dealing with crucial issues.
It is further clear to me that when the Tribunal expressed its concerns throughout the three-hour hearing in the instances highlighted by the Applicant it did not appear to prevent the Applicant from continuing to provide detailed, albeit on many occasions vague, answers to questions. The answers were responsive, albeit unsatisfactory according to the Tribunal. The assessment of that evidence and ultimately the credibility of the Applicant was a matter for the Tribunal and I accept, as a matter of law, the assessment of credibility is a matter par excellence for the Tribunal based on the authorities relied upon by the First Respondent.
My findings in relation to the question of apprehended bias are based upon an analysis of the transcript and listening to the tapes. When listening to the tapes it is clear that the Tribunal, in a number of examples relied upon, clearly expressed difficultly believing the Applicant's story. The tone, however, was consistent with the expressed view of disbelief. By way of example, when dealing with the passport issue when the Applicant was asked by the Tribunal, "Where is it?" he answered, "I don't remember. It's a long time ago" (Supplementary Court Book page 8). It was after that comment that the Tribunal made the statement that, "I have a great deal of difficulty believing this story. A passport is such an important identification. Whereabouts in Melbourne was it, if you didn't have transport?" It should be noted that that response from the Tribunal was interpreted sentence by sentence and I did not detect any unduly aggressive or offensive tone, but rather firm questioning of an inquisitorial type which I regard as entirely appropriate, particularly when viewed in light of the Applicant's vague answers. After that comment by the Tribunal the Applicant suggested he got confused about travelling around the city and referred to tickets being a matter of concern "to spend more money". It was then that the Tribunal made the following comment:
“I have even more difficulty in believing you if you tell me that because nothing is more important for you to have than your identification document of a passport.”
Upon listening to the tape-recording the comments by the Tribunal set out above are expressed in what could only be described as the Tribunal indicating a concern about the material presented by the Applicant. The tone used by the Tribunal was entirely appropriate. The Tribunal member's voice was not raised, agitated and nor could it be concluded that there was an aggressive approach by the Tribunal member. At best it might be concluded that there was a hint of exasperation which, in my view, is hardly sufficient to support the submissions advanced on behalf of the Applicant of apprehended bias at an early stage of the hearing which tainted the entire process. I should also add that on my hearing of the tape-recording there are a number of pauses whilst the Tribunal member either repeated or appeared to be taking time to note answers to questions provided by the Applicant through the interpreter. Any comments made by the Tribunal in English did not appear to be particularly aggressive but in any event, the questions were all translated by the interpreter for the Applicant who then answered in his own language which in turn was interpreted in English. The delay in this process of itself offsets any immediate impact the Tribunal's questions may have upon the Applicant as the interpreter throughout appeared to maintain the same intonation in his voice. I stress, however, that in any event the Tribunal questioning appeared entirely appropriate, both in tone and content.
When dealing with the issue of the PML card, it is clear that the exchange between the Tribunal and the Applicant proceeds as set out earlier in this judgment with the Tribunal asking questions about the picture on the card and raising doubts as to whether one of the persons in the picture looks like the Applicant. It is relevant to note that during that exchange the Applicant answers questions in English directly to the Tribunal and in particular, when the Tribunal states, "It doesn't look like you," the Applicant answers in English, "Yes, because there I have little bit hair and different style." The Applicant did not appear to have any difficulty in responding to the questions which were asked in a reasonable manner. When the Tribunal stated, "Why didn't you read that out?" it is clear that comment follows the earlier questions and answers and it is noted that the tone is clearly louder and I conclude the Tribunal member, by her voice, sounds somewhat irritated. However, questioning continued after that point in a normal, calm manner. In fact the Tribunal puts to the Applicant clearly, though in a quiet manner, the suggestion that at the time he would have been "only been 17 years old" and goes on to state, "You're a bit young to be the information secretary." That question, as indicated earlier, is entirely appropriate and relevant for the Tribunal to pursue, as it did, on a proper hearing of the tape in a normal manner. The Tribunal then legitimately makes that point that it had taken 10 minutes to find out that "there's a whole lot of things on the card that you did not bother to read out". The Tribunal further, when confronted with the suggestion that the Applicant was confused, states in a reasonable tone and manner, "How can you be confused when you're asked to read out what's on the card?"
When dealing with the FIR document the comment by the Tribunal that, "I have trouble believing this," was expressed in a normal tone and appears after an exchange concerning other material relied upon by the Applicant which did not relate to the alleged false case being lodged against him. It was only after the Tribunal expressed the view that the Applicant did not have any "documents about the false case lodged against you" that the Applicant then produced the copy of the FIR. It is hardly surprising the Tribunal then expressed concern and stated that she had "trouble believing this". Neither the tone, nor the content of the Tribunal's remarks, in my view, reveal any basis upon which the court could conclude that there has been apprehended bias. The Tribunal continues to express disbelief, but specifically refers to the basis of the disbelief in a reasoned and normal manner after referring to documents lodged with the Department. The Tribunal, on my interpretation of both the transcript and hearing the tape, expresses disbelief and appeared to be genuinely perplexed by the late production of the documents and endeavours to make sense of the documents by asking further relevant questions.
The questions asked by the Tribunal in relation to the law or regulation claimed to be broken in the FIR were again asked in a normal manner, free of any suggestion of apprehended bias.
It is further clear on a proper reading of the material and listening to the tape that a discussion towards the end of the interview with the interpreter which resulted in the Tribunal indicating that she had "no idea it would take so long to get answers to these questions" and further where the Tribunal states "they have been very hard to get answers to" is clearly in the context of apologising to the interpreter for the proceedings going longer than anticipated. It would be wrong to read into that exchange any suggestion of apprehended bias. Instead it is merely a passing comment by the Tribunal to an interpreter who appears to have been booked for a shorter period of time by the interpreting service.
Conclusion
Having considered the material in detail and in particular having listened to the tape-recording and in particular the relevant extracts of that recording relied upon by the Applicant, it is my concluded view that there is no basis upon which this court could find that the Tribunal decision should be quashed on the basis of apprehended bias. For the reasons given, it follows therefore that the application should be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 April 2006
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