Mzwek v Minister for Immigration
[2005] FMCA 941
•7 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWEK v MINISTER FOR IMMIGRATION | [2005] FMCA 941 |
| MIGRATION – Review of decision of Refugee Review Tribunal –findings of fact – no jurisdictional error – application dismissed – costs. |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Sarbjit Singh v Minister for Immigration and Ethnic Affairs (1996) 902 FCA 1; Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | MZWEK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 339 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 21 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared on her own behalf |
| Counsel for the Respondent: | Mr E.J.C. Heerey |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $11,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 339 of 2004
| MZWEK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Proceedings commenced by the applicant filing an application on 23 March 2004 wherein the applicant sought by way of final orders the following:
(1)RRT decision in V03/15825 be quashed.
(2)Application V03/15825 be reconsidered by RRT differently constituted, according to law.
(3)Costs.
A subsequent application was filed on 20 December 2004 with that application going to interim orders wherein the applicant sought that the order made on 30 November 2004 by Riethmuller FM to dismiss the applicant's application be set aside.
What is before the court is the applicant's amended application on which she relies, that application being filed 30 December 2004. The applicant has filed contentions of fact and law and partial alleged transcript of the RRT hearing dated 21 December 2004 as prepared by the applicant. The applicant asserts that "Judge was laughing on my hearing."
The respondent relies on contentions of fact and law filed on 1 March 2005, together with supplementary contentions filed 25 May 2005. The applicant this day filed a Spark and Cannon authorised transcript of proceedings of the Refugee Review Tribunal hearing on 21 January 2004 and there is also on the court file two tape-recordings being the tape-recordings of the subject Refugee Review Tribunal hearing.
The applicant arrived in Australia on 17 January 2003 on a Sri Lankan passport and with a visitor's visa issued to her by the respondent's Department in Colombo on 6 December 2002 and valid until 26 February 2003. The applicant is a citizen of Sri Lanka of Sinhalese ethnicity and Buddhist religion.
On 13 February 2003 the applicant lodged a protection visa application with the respondent's Department. Her claim for refugee status was based on her involvement in political activities as a member of the Peoples Alliance (PA). She claimed to receive death threats from political opponents and that she was attacked by United National Front (UNF) supporters at a polling booth in the December 2001 election and taken to hospital. She claimed to have received subsequent threats; that thugs broke into her family's home and assaulted her and her father on 5 November 2002 and that she was again taken to hospital. She claimed that her enemies were shielded by police who took no action against them because they were UNF supporters.
On 27 May 2003 a delegate of the respondent made a decision to refuse to grant the applicant a protection visa and on 24 June 2003 the applicant filed an application for review of the delegate's decision by the Refugee Review Tribunal (the tribunal). The applicant attended a hearing and gave oral evidence and submissions to the tribunal on 21 January 2004. On 29 January 2004 the tribunal affirmed the delegate's decision not to grant a protection visa. The applicant then applied to this court for judicial review on 23 March 2004.
On 30 November 2004 Riethmuller FM dismissed the 23 March 2004 application and granted leave to the applicant to apply to have the matter reinstated within 28 days. On 20 December 2004 the applicant filed an application for reinstatement of the 23 March 2004 application.
On 14 February 2004 Riethmuller FM ordered that the application be reinstated with leave to amend. His Honour also ordered that the application be limited to the following grounds:
a)issues concerning the Durdans Hospital medical letters; and
b)issues concerning allegations that the tribunal member was laughing at the applicant or otherwise acting inappropriately at the hearing.
It is accepted that in analysing the tribunal's decision for error, the court is guided by a fundamental principle that it does not have jurisdiction to review the merits of the decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The tribunal is the sole arbiter of fact whose function it is to assess the credibility of the evidence and make findings of fact based on that assessment. The reasons of the tribunal should be read as a whole and considered fairly as described by Kirby J. in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996).
The Durdans Hospital medical letter
This issue was not addressed in the materials put before the court by the applicant. Nevertheless, the letter was considered by counsel for the respondent. The letter is contained in the court book. It bears the heading Ceylon Hospitals Ltd and is a handwritten note dated 2002.11.11. The letter purports to be signed and stamped by a consultant surgeon of the hospital, the name of whom is illegible. The letter contains the following handwritten text:
This is to confirm that Applicant MZWEK was admitted on 5 November 2002 as she was unconscious due to an assault by a stick to her head, and discharged on 11 November 2002.
The tribunal noted in its decision that the hospital's letter was not provided until the day of the tribunal hearing on 21 January 2004 and the tribunal dealt with the letter as follows:
... The letter from the hospital which the applicant provided is of limited weight. The Durdans Hospital is a significant medical institution in Colombo ( It is a puzzle why such a handwritten letter attesting to the reason for the applicant's hospitalisation would have been issued on the day of her discharge, 11 November 2002, and that it was not provided to the tribunal until the day of the hearing notwithstanding the evidence that her father had been busy in relation to an election. It is also curious that the letter, apparently from a doctor, did not state the nature of the injury sustained rather than just stating the cause.
The letter purported to have been issued on 11 November 2002. It was a source of concern for the tribunal member that it was not provided by the applicant until 21 January 2004. The transcript does not reveal any discussion at all of the letter, it being one of the documents which were handed by the applicant's agent to the tribunal at the end of the hearing. No oral submissions were made about the letter but rather submissions were made about newspaper articles, including the documents which were handed up by the applicant's agent to the tribunal member. The transcript does not disclose any arguable lack of procedural fairness in the tribunal's treatment of that letter. There is no basis to conclude the applicant was denied an opportunity to deal with the suspicious nature of the letter and in any event the tribunal's doubt about the hospital's letter was only one of three reasons upon which the tribunal expressed doubts about the applicant's account of events on 5 November 2002 leading to its conclusion that:
I have come to the view that the attack on 5 November 2002 did not occur in the circumstances and for the reasons claimed.
I accept Counsel for the respondent’s submissions in relation to this letter. The tribunal's rejection of the applicant's claims in relation to the 5 November 2002 attack was but one of many factors that led the tribunal to its conclusion to reject the applicant's claim for refugee status. The tribunal relied on various factors unrelated to the hospital letter to form the conclusion that the applicant's involvement in campaigning for the PA was not of the profile that she had claimed. In any event, the hospital's letter did not serve to establish that any assault upon the applicant was motivated by reason of the applicant's imputed political opinion.
Allegation that the tribunal member was laughing at the applicant or otherwise acting inappropriately
The document served by the applicant on 28 February 2005 titled "Script of RRT Hearing Tape Dated on 21.01.2004" purports to set out a transcript of the tribunal's hearing that day which was prepared by the applicant herself. The transcript is only five pages long and is clearly not an accurate or complete record of the tribunal's hearing. However, on the hearing date the applicant did provide an authorised transcript of proceedings and urged the court to listen to the tape‑recordings also provided to the court.
The transcript does not record any laughter by the tribunal member.
The transcript reveals that the tribunal engaged in an acceptable testing of the evidence as contemplated by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) HCA 28 wherein Gleeson CJ, Gaudron and Gummow JJ said 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. 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.
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 a person whose evidence is in question being overborne or intimidated. If that should happen, a fair‑minded lay observer or a properly informed layperson might readily infer that there is no evidence that the witness can give which can change the decision‑maker's view.
As appears from the tribunal's reasons, its decision rested primarily on its assessment of the applicant's credibility.
It is obviously a question of fact to determine whether or not the tribunal member has been so biased that her decision cannot be allowed to stand. If actual bias is proved by the applicant, that is the end of the matter and the person concerned must be disqualified. Even where a decision‑maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views are incapable of being altered because the decision‑maker had unfairly and irrevocably prejudged the case (Sarbjit Singh v Minister for Immigration and Ethnic Affairs (1996) 902 FCA 1 (18 October 1996)).
I was asked by the applicant to listen to the tapes of the hearing in order to hear exactly what the tribunal member said and so to understand the context, the tone and the manner of the remarks of the tribunal member upon which reliance was placed by the applicant to establish actual bias, in particular whether the tribunal member laughed. Following the conclusion of the hearing I played the tapes in private. As I listened to the tapes I followed the proceedings with the authorised transcript provided to me. I listened to those parts of the tapes containing the passages to which the applicant referred me in particular and to the parts surrounding both before and after those parts. It was important to listen to the tapes because the applicant places reliance not only on what was said by the tribunal member, but the manner or tone in which the statements were made, including an allegation of laughter. I considered the comments not only in isolation, but with a view to their cumulative effect.
I am satisfied that the case of actual bias has not been established. The tribunal member was clearly frustrated from time to time because of the evasive and at times inherently improbable answers given by the applicant to questions asked of her. The applicant argued the tribunal had not acted according to substantial justice in the following exchanges:
MS HOLMES: Are you sure about that?
This followed the following exchange:
MS HOLMES: All right. So what other policies about the PA did you think were good?
INTERPRETER: They had a policy to provide employment for the youth.
MS HOLMES: Anything else?
INTERPRETER: Those are the main things.
MS HOLMES: That is the main thing that attracted you to the party?
INTERPRETER: Yes.
MS HOLMES: That was more than "Yes".
INTERPRETER: Their speeches attracted my attention.
MS HOLMES: By the time you joined, the PA was in power, wasn't it?
INTERPRETER: Yes.
MS HOLMES: Yes. Have they managed to do this, have they managed to make the roads safe to walk on and have they managed to get youth employed?
INTERPRETER: Yes.
MS HOLMES: Are you sure about that?
INTERPRETER: To a great extent.
(Transcript page 10, lines 11 to 36). And later:
MS HOLMES: Okay. Look, I don't think so. I mean, the biggest security issue facing Sri Lanka for a long time has been the war with the LTTE -
which occurred in the following exchange:
MS HOLMES: I see. All right. What other sort of issues concerning the security and peace in Sr Lanka were important to the PA?
INTERPRETER: In what period?
MS HOLMES: In the period that you claim to have been campaigning house to house and putting up posters and handing out leaflets for the PA, that period?
INTERPRETER: There was not much of atrocities at that time.
MS HOLMES: I think there were.
INTERPRETER: No, there was not, atrocities were not to that extent. At that time what was happening was there were threats to the people who were working in the election campaign.
MS HOLMES: Right. That was the most important security issue facing the whole of the country, was it?
INTERPRETER: Yes.
MS HOLMES: Okay. Look, I don't think so. I mean, the biggest security issue facing Sri Lanka for a long time has been the war with the LTTE.
INTERPRETER: That was confined to the north.
MS HOLMES: It wasn't really, was it? I mean, the actual day‑to-day fighting might have been in the north but unfortunately it did affect the south as well, didn't it?
(Transcript page 19 lines 15-35). And later:
MS HOLMES: Okay. Well, let's move on now to the 2001 campaign. I want to talk to you about the bad things that you claim happened to you then.
INTERPRETER: I was working at the polling station and some UNP supporters came and assaulted me. I became unconscious and I was admitted to the hospital.
MS HOLMES: Yes, okay. Now, did the police talk to you at all about that assault or did you talk to them?
INTERPRETER: No.
MS HOLMES: So you made no statement or anything like that about it?
INTERPRETER: My father had gone and informed the police.
MS HOLMES: Right. Was he there at the time, your father?
INTERPRETER: He was working in the booth.
MS HOLMES: So your father told the police and they didn't come to you and take a statement?
INTERPRETER: No.
MS HOLMES -
and being the line complained of:
I find that quite difficult to believe, that the police wouldn't have taken a statement if you had been assaulted in that way in public. I don't actually believe that. I just think that's not so.
INTERPRETER: But it is what happened.
MS HOLMES -
this exchange being also complained of:
Okay. Like all the other things you've told me about today. Now, I would find that very difficult, that if there was a young woman who had been assaulted in a polling booth, as you have described, and she was in hospital for days, and her father went to the police, that they wouldn't have sought to take a statement from you about it.
INTERPRETER: In Sri Lanka people are shot acting in the law courts also.
MS HOLMES: That has just got nothing to do with the circumstance that you have described, but all right, I have taken a note of that. After that, how long before the election day - that was on election day, was it?
INTERPRETER: Yes.
MS HOLMES: What else happened to after that event?
(Transcript Page 27). And later:
MS HOLMES: Okay. Because in your protection visa application you said that UNP supporters telephoned and came to the house and threatened you with death.
INTERPRETER: That was after the 2000 election.
MS HOLMES: No, you have said - well, it's not the way that I read it here. It says that was after the time when you were assaulted. The way that it's stated in your protection visa application makes it seem as though you had the threats after each election, but today you're only saying that the threats came after the 2000 election. Is that right?
INTERPRETER: Every election after re-election I had problems.
MS HOLMES -
and the lines complained of:
Yes, I am just finding this a bit difficult to accept that you're telling me the truth today about this, I'm sorry. I think that, you know, had UNP supporters telephoned you and come to the house and threatened you with death - you know, that's very difficult to overlook, and you have just said that nothing happened to you in 2002.
INTERPRETER: After each election I had death threats.
MS HOLMES: Yes, but why didn't you say that a minute ago when we were talking about what happened to you, after you got out of hospital, after the 2001 election? I asked you what happened to you after you got out of hospital after you were assaulted at the time of the 2001 election.
(Transcript page 30). And later:
MS HOLMES: Okay. I mean, I just find it really difficult to accept that after all that time 10 UNP thugs are going to track you down and they beat you up. I mean, I just don't believe that you were so important or so active to lead to that kind of sustained attention. You know, I understand that there's a lot of violence in Sri Lankan politics. It's conducted in a much more vigorous way than we do politics here, I know that. There's a lot of pushing and shoving, a bit of hitting and occasionally there's people even die in fighting, usually around election time.
But I just don't believe that you would have received those threats as frequently as you have said over five or six months and still have gone off to work, most days it seems. I just can't see that the involvement of a young, energetic woman, who might really believe that the PA is the right party, would prompt that kind of sustained attention. I want to look at everything that you have said today, but it is important for me to tell you about the misgivings that I have. Are there any other things you would like to tell me about what we have talked about today or are there any other reason or reasons why you don't want to go back to Sri Lanka? Now, there's the obvious reason, -
and then the line complained of -
isn't there, and that's that your husband is here.
INTERPRETER: I met my husband here after I came here.
MS HOLMES: Yes. But that's an obvious reason why you don't want to go back to Sri Lanka.
INTERPRETER: I have a bigger binding with my parents than my husband.
MS HOLMES: I have a bigger what?
INTERPRETER: Binding.
MS HOLMES: "I am closer to my parents than my husband"?
INTERPRETER: Yes.
MS HOLMES -
(Transcript page 36). And later:
I see. Okay. I was just trying to find something nice to write about how you wouldn't want to be returning, leaving your husband behind.
(There is, as it sounds, some trace of laughter in the voice at this point.)
INTERPRETER: No, I don't have that - I can leave my husband and go.
MS HOLMES: Okay. Are there any other things you want to tell me about not going back, about why you don't want to go back or what you're frightened of?
(Transcript page 37).
The transcript does not disclose the tribunal member talking over or hectoring the applicant. The transcript exchanges do not raise an apprehension of bias, whether taken alone or in conjunction with any and all of the other matters raised by the applicant.
I have had regard to the record of the hearing on tape and in transcript and cannot conclude that the member in her questioning was unfair. Although the tribunal member expressly stated her lack of belief at times with the matters as put by the applicant, she was not lacking in civility or impatient in tone or manner of questioning. Her tone at times clearly indicated incredulity and the tribunal member did gasp on occasion again indicating incredulity. She was however polite and quietly spoken throughout.
The applicant cannot establish jurisdictional error committed by the Tribunal. I accept Counsel for the respondent’s submission that a hypothetical fair-minded lay observer, 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, would not reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434, 427 and 434-5 per Gleeson CH, Gaudron & Gummow JJ.).
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 7 July 2005
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