MZAMA v Minister for Immigration
[2016] FCCA 101
•25 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAMA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 101 |
| Catchwords: MIGRATION – Review of a Refugee Review Tribunal decision – application brought outside of timeframe – extent of delay – inadequate reasons –apprehended bias – alleged denial of opportunity to be heard – argument rejected – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476, 477, 477(1), 477(2) |
| AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Jones v Australian Competition and Consumer Commission [2002] FCA 1054 NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAV of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 182 SWDB v Minister for Immigration and Citizenship [2007] FCA 1636 SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 SZRUI v Minster for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZTES v Minister for Immigration & Border Protection [2015] FCA 719 SZTSU v Minister for Immigration and Border Protection [2015] FCA 224 VFAB v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102 |
| Applicant: | MZAMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2052 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 25 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2052 of 2014
| MZAMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an Application filed on 9 October 2014 wherein the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) affirming a decision of a delegate of the First Respondent (“the delegate”) not the grant the Applicant a Protection (Class XA) visa (“the visa”).
The Application has been brought outside the timeframe provided for review provided by s.477 of the Migration Act 1958 (Cth) (“the Act”).
The grounds of application for extension of time set out in the Application are as follows:-
“1. The applicant has strong grounds for judicial review of the Refugee Review Tribunal’s decision (“Decision”) based on the argument that the Decision is affected by apprehended bias.
2. The applicant made a previous application to this Court in 2012, but withdrew it after receiving advice to do so from Victoria Legal Aid.
3. The applicant’s judicial review case is strong because of the Full Federal Court’s judgment in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, which was handed down on 25 July 2013.
4. SZRUI had not been decided when the applicant received advice from Victoria Legal Aid to withdraw his application.
5. Prior to issuing this application, the applicant sought ministerial discretion under s.417 of the Migration Act 1958.
6. The nature of the apprehended bias error is only apparent on listening to the hearing recording of (sic) reading the transcript of the hearing, which runs over some 6 CDs.
7. Before issuing this application, the applicant applied for relief under s.417 of the Migration Act 1958 and was unsuccessful.”
The First Respondent opposes the application for an extension of time. However, if an extension of time is granted, the First Respondent submits that the substantive application should be dismissed.
The grounds for review set out in the Applicant’s Application are as follows:-
“1. The Tribunal made a jurisdictional error in that it made a decision that was affected by a reasonable apprehension of bias.
Particulars
i. During the hearings, the Tribunal member repeatedly scoffed at the applicant’s evidence.
ii. During the hearings, the Tribunal member repeatedly laughed.
iii. During the hearings, the Tribunal member repeatedly interrupted the applicant while he was giving evidence.
iv. During the hearings, the Tribunal member spoke in an exasperated and impatient tone.
v. During the hearings, the Tribunal member acted in a bullying manner by peppering the applicant with repeated questions without pausing between each question.
vi. During the hearings, the Tribunal member made statements revealing that she had already made up her mind about the evidence and claims.
vii. During the hearings, the Tribunal stated that the applicant’s idea was “silly”.
viii. During the hearings, the Tribunal joked about the applicant’s family home being attacked by the Taliban.
ix. During the hearings, the Tribunal member joked that she was “targeting” one of the journalists who had written an article cited by the applicant.
x. During the hearings, the Tribunal member made statements such as “No I don’t believe that at all [laugh]” and “I don’t actually accept that” and “Yes but I don’t think it is happening to that extent [laugh]” and “Listen to me now. OK?”
xi. During the hearings, the Tribunal member made a joke of the applicant’s health problems.
xii. In an exchange with the applicant’s migration agent during the hearing, the Tribunal joked that a decision found to be affected by a lack of procedural fairness may have been made by her favourite merits reviewer.
xiii. During the hearings, the Tribunal member spoke to the applicant in a raised voice.”
The Applicant relied upon his Application, an Affidavit sworn by Erskine Rodan on 8 October 2014 and Written Submissions filed on 20 July 2015.
The First Respondent relied upon a Response filed on 24 October 2014 and Written Submissions filed on 11 August 2015. The First Respondent also made available to the Court both a transcript of the hearings and an audio recording of the hearings proven by affidavit affirmed on 10 August 2015 by Mr Murano. This was provided consequent upon the Applicant’s claims of a reasonable apprehension of bias in the Tribunal member. It remained of course for the Applicant to make out his claims. The audio recording is the primary evidence relied upon by the Applicant in this proceeding. I note the Applicant has had in his possession the audio recording of the first hearing since the 11 November 2010 which is problematic in terms of his extension of time application.
There was also before the Court evidence as contained in the Court Book filed on 13 May 2015.
History
The Applicant is a 27 year old citizen of Pakistan. He is a Shi’a Muslim and a member of the Turi tribe.
On 8 November 2008, the Applicant entered Australia holding a student visa. That visa was valid until 16 June 2010.
On 16 June 2010, the Applicant applied for the visa. The Applicant claimed to fear persecution on the ground of his religion, race, political opinion and membership of particular social groups.
On 7 September 2010, a delegate of the First Respondent (“the delegate”) refused to grant the Applicant the visa. The delegate did not accept the Applicant’s fears of persecution were well-founded having regard to his accepted profile and relevant country information.
On 27 September 2010, the Applicant lodged his application for merits review by the Tribunal.
On 12 October 2010, the Tribunal invited the Applicant to appear before it. By that invitation the Tribunal advised the Applicant it had “considered the material before it but it [was] unable to make a favourable decision on this information alone.”
On 10 November 2010, the Applicant filed a further statutory declaration and medical certificates. At the hearing (being the first hearing before the Tribunal on 11 November 2010), the Applicant was assisted by his migration agent and a Pashto interpreter. The Applicant filed further country information. At the conclusion of the hearing, the Tribunal agreed to give the Applicant time to file further evidence and argument in support of his claims. After the hearing, in response to the Applicant’s request, the Tribunal registry provided the Applicant with a copy of an audio recording of the hearing held on 11 November 2010.
On 10 December 2010, 8 February 2011 and 26 May 2011, the Applicant filed further submissions and materials in support of the Applicant’s claims. No complaint was made by the Applicant as to the Tribunal member’s conduct of and/or behaviour during the Tribunal hearing of 11 November 2010.
On 28 November 2011 and 9 May 2012, the Applicant’s migration agent wrote to the Tribunal, urging it to finalise the application for review. There was again no complaint as to the behaviour and/or conduct of the Tribunal member.
On 14 May 2012, the Tribunal caused two letters to be sent to the Applicant both apologising for the delay and inviting the Applicant to appear before the Tribunal for a further hearing scheduled for 8 June 2012. In a letter dated 14 May 2012 and sent to the authorised recipient of the Applicant, the Applicant was relevantly advised of the following:-
“The Member has asked me to let you know that she expects the focus of the further hearing will be on clarifying aspects of the evidence and on the question of relocation to another part of Pakistan.
On 24 March 2012 new alternative criteria for the grant of a protection visa were introduced by the Migration Amendment (Complementary Protection) Act 2011. This legislation provides that an applicant for a protection visa who is found not to be a refugee may nevertheless be a person to whom Australia has protection obligations on ‘complementary protection’ grounds. As the Tribunal has not made a decision about your claims for protection, the further hearing will also be an opportunity for you to give evidence about whether you meet alternative complementary protection criterion.
Under the new legislation a person may qualify for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of his or her removal from Australia to a receiving country, there is a real risk he or she will suffer significant harm.
The legislation provides that a person would suffer ‘significant harm’ if:
a) He or she will be arbitrarily deprived of their life; or
b) The death penalty will be carried out; or
c) He or she will be subjected to torture; or
d) He or she will be subjected to cruel or inhuman treatment or punishment; or
e) He or she will be subjected to degrading treatment or punishment.
The Member has asked me to send to you the following documents she has prepared on the basis of the material before her and these are attached:
*a draft account of the evidence before her about your claims; and
*a summary of independent information relevant to your case.
If there are any matters which you do not consider have been accurately documented, you are invited to advise the Tribunal before or at the time of the hearing and the Member will review the source material.”[1]
[1] Correspondence from the Refugee Review Tribunal to the Applicant dated 14 May 2012.
On 31 May 2012, the Applicant filed a further statutory declaration with the Tribunal.
On 1 June 2012 and 5 June 2012, the Applicant provided further submissions, evidence and country information in support of his claims for protection. The Applicant did not take issue with the draft account of evidence about the Applicant’s claims or the summary of independent information relevant to his case as provided in the 14 May 2012 correspondence described in paragraph 18 above. Nor did he make any complaint as to any matter, including the conduct of the first hearing by the Tribunal member nor the behaviour of the Tribunal member in relation to the first hearing.
On 8 June 2012, the Applicant attended a further hearing (second hearing). He again appeared with the assistance of his migration agent and a Pashto interpreter.
On 12, 14 and 25 June 2012 the Applicant filed further country information and argument in support of the Applicant’s claims.
On 18 July 2012, the Tribunal notified the Applicant its decision dated 17 July 2012 to affirm the decision not to grant to the Applicant the visa.
On 8 August 2012, the Applicant commenced Federal Magistrates Court (as it then was) proceeding MLG977/2012 by filing an application requiring the Tribunal to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act in relation to the decision of the Tribunal dated 17 July 2012. On 15 February 2013, the Applicant filed a Notice of Discontinuance in that proceeding.
On 25 July 2013, the Full Court of the Federal Court delivered its reasons for decision in SZRUI v Minster for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”).
Over a year later, on 9 October 2014, the Applicant lodged his Application for judicial review and an extension of time.
Extension of time
Pursuant to sub-s.477(1) of the Act, any application for judicial review in this proceeding should have been filed on or before 21 August 2012. The Application is accordingly over two years out of time. The Court has power to extend the time provided the requirements of sub-s.477(2) of the Act are met.
Section 477(2) of the Act includes a precondition that must be satisfied before time can be enlarged, namely that the extension be “necessary” in the interests of the administration of justice: SZTSU v Minister for Immigration and Border Protection [2015] FCA 224 at [2] per Mortimer J; SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [43].
“In exercising the discretion to grant or refuse an extension of time, the considerations to be taken into account have been variously expressed. Thus for example, in SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281, Collier J has summarised these considerations as follows:-
· [15] In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J explained principles relevant to the exercise of the power of the Court to extend time in which to make an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These principles are of general application. In summary, relevant factors for consideration by the Court include:
· whether the applicant has provided an acceptable explanation for the delay in lodging the application;
· whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and
· the merits of the substantial application.
More recently, in Reaper v Baycorp Collections PDL (Aust) Pty Ltd [2014] FCA 426 at [12] Tracey J has observed:-
[12] An application for an extension of time within which to file a notice of appeal may be made pursuant to Rule 36.04 of the Rules. The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah [1982] FCA 159; (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that “the respondent to the application has a vested right to retain the judgment, the subject of the appeal”: see Jackamarra v Krakourer (1998) 195 CLR 516 at 519–20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A “full rehearsal” of the argument on appeal is not required. Any assessment of “the merits” must necessarily be undertaken “in a fairly rough and ready way”: see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191–2 and the authorities therein referred to.”[2]
[2] AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10].
As to the provision of an “acceptable explanation for the delay” as referred to in the preceding paragraph the first respondent submits:
a)the delay is of significant duration;
b)the Applicant has previously lodged an application for judicial review of the Tribunal’s decision, and, with the benefit of advice from Victoria Legal Aid in 2012, withdrew that application;
c)with the benefit of legal advice, the Applicant elected to abandon his application for judicial review and seek Ministerial Intervention in respect of his application;
d)moreover, the Applicant had the assistance of a migration agent before the Tribunal and has had legal representation in the conduct of his present application;
e)to the extent the Applicant claims the ostensible bias ground is only revealed by listening to the audio recorded hearing, the applicant has been in possession of the audio recordings of the First Hearing since the day it occurred, over three and a half years ago and been in position to obtain transcript of the hearing since that time; and
f)the law of ostensible bias is well-settled and the decision in SZRUI is merely an application of these principles and it did not create new law. In any event SZRUI was handed down in 2013.
For the above reasons the First Respondent submits the explanation offered is not reasonable, acceptable or adequate in the requisite sense.
It is quite clear that the extension of time required is significant, as a fact in itself. This coupled with the other submissions made by the First Respondent, as set out in paragraph 29 above, which are accepted by the Court, is compelling. The Court is of the view in the exercise of its discretion that no satisfactory explanation for the delay has been provided by the Applicant. No plausible reason which provides a foundation for the conclusion that it is in the interests of justice that an extension be granted is before the Court as determined by the Court. Furthermore no complaint or allegation of bias was ever made by the Applicant or his agent prior to the Applicant issuing these proceedings despite the two hearings, provisions of an audio hearing to the Applicant and numerous correspondences which emanated from the Applicant to the Tribunal. This goes to the consideration of both the delay itself and whether there is any substantive merit to the Application.
It is not necessary that the First Respondent not claim prejudice. Indeed the First Respondent accepts there is no prejudice that cannot be ameliorated by an adequate costs orders. But on the ground of the delay alone and the inadequacy of the explanation the First Respondent urges the Court to not extend time. The First Respondent does however also argue that there is no substantive merit in the Application. The Court has considered whether the Tribunal decision was affected by an alleged reasonable apprehension of bias such that an extension of time ought be granted. The Court concludes that it should not. The Court is satisfied the Tribunal member considered the Applicant’s claims on their merits and that on the evidence before it no basis emerges to conclude that the Applicant was not afforded procedural fairness founded in a reasonable apprehension of bias.
Scoffing, laughing, joking, bullying, interrupting, impatience, rudeness
The applicable legal principles are identified in the First Respondent’s submissions, and agreed with by the Applicant, and are as follows:-
a)The test of apprehended bias is whether a hypothetical fair-minded lay observer could reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425 (Ex parte H) at 434 per Gleeson CJ, Gaudron and Gummow JJ. Apprehended bias must be “firmly established”: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J. A “vague sense of unease or disquiet” is not sufficient: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at 100 per Weinberg J;
b)The test is expressed differently when applied to administrative proceedings, in order to take account of the nature of the proceedings and the task of the decision-maker. Ex parte H at 427. The difference between curial and administrative decision-making is significant in assessing the question of bias: see further NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [19] per Allsop J, as his Honour then was. Here the fair-minded lay observer would accordingly be informed that: the proceeding is inquisitorial, the hearing was occasioned by the Tribunal’s failure to be satisfied of the applicant’s entitlement to the Visa on the basis of the material before it and that the Tribunal is obliged by s.425 to identify the issues arising;
c)Courts have recognised that “the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process”: SZRUI at [27] per Flick J. The issue is whether the Tribunal’s conduct gives rise to a reasonable apprehension the decision-maker is not prepared to change those views, no matter what is said during the conduct of the hearing, or in fact has a closed mind: refer SZRUI at [27] per Flick J;
d)“Harsh tones”, mere discourtesy or abruptness does not give risk to a reasonable apprehension of bias: VFAB v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102 (VFAB) at [44] and [81] per Kenny J and SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzman J;
e)In evaluating the Tribunal’s comments, it is necessary to consider the stage of the hearing the statements were made in and, any inherent probabilities or improbabilities to which the Tribunal was reacting: SZRUI at [82] per Robertson J;
f)The Court may have regard to the Tribunal’s reasons for decision in determining an apprehended bias ground: see e.g., SCAV of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 182;
g)The Court is required to have regard to the whole of the hearing, a statement made that indicates prejudgment can be removed by a later statement that withdraws of qualifies it: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [14] per Gleeson CJ, Gaudraon, McHugh, Gummow and Hayne JJ and VFAB at [68].[3]
[3] First Respondent’s Written Submissions filed on 11 August 2015 at [48] to [54].
The Tribunal member conducted the hearing in a generally courteous manner. The Tribunal member did laugh on occasion but not in a way supportive of the Applicant’s case. Such laughter went more to a softening or relaxing of the process and sometimes as a means of re-directing the Applicant to relevant issues. Any interruptions were likewise to progress the hearing and have the Applicant put before the Tribunal relevant matters and avoid repetition, which at very limited times and understandably given the length of the hearings and volume of material canvassed, exasperated the Tribunal member. Scoffing as described was not apparent on the audio hearing. Nor was bullying. What occurred was a polite and lengthy hearing with much opportunity given to the Applicant to put his claims and evidence before the Tribunal for a full consideration by the Tribunal of those matters.
As submitted by the First Respondent and accepted by the Court, the Court having read the complete transcript and listened to the complete audio recording, the Tribunal’s conduct of the hearings was transparent and manifestly fair. To the extent the Tribunal sought to direct the Applicant’s attention to the “issues arising” on the review, as submitted by the First Respondent it was obliged to do so in order to conduct an efficient and fair hearing and discharge its obligation under s.425 of the Act – this included testing those aspects of the applicant’s evidence that the Tribunal had difficulty accepting, putting the thrust of country information to the applicant for comment: see further SWDB v Minister for Immigration and Citizenship [2007] FCA 1636 at [16] per Branson J.
The Court is entitled to consider the Tribunal’s conduct in context. The Tribunal’s occasional expressions of doubt in comments during and at the conclusion of the hearing and an obvious testing of the evidence were a part of the Tribunal’s inquisitorial function, and assisted the Tribunal in reaching a concluded view. Indeed in its reasons for decision, it was clear there was a careful consideration of the claims and evidence of the Applicant.
The Court concludes the Applicant was afforded a hearing free from any reasonable apprehension of bias, and in accordance with s.425 of the Act. There is satisfied the test that the fair-minded lay observer would conclude the Tribunal member brought an impartial mind to the resolution of the question before her. She considered the Applicant’s claims and noted the Tribunal’s obligation to reach “a state of satisfaction that the Applicant was entitled to Australia’s protection”. There was a willingness evident in so doing, to make positive findings if possible, which in fact in respect of some claims did occur.
The Application for an extension of time must fail.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 25 January 2016
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