MZWTE v Minister for Immigration
[2006] FMCA 862
•16 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWTE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 862 |
| MIGRATION – Protection visa – Refugee Review Tribunal – second hearing after Court ordered remittal – whether second Tribunal entitled to rely on material before first Tribunal – whether ‘information’ for the purpose of s.424A of Migration Act 1958 – whether breach of s.424A – whether jurisdictional error – whether denial of natural justice – whether failure to take into account relevant matters or taking into account irrelevant matters – whether apprehended bias. |
| Migration Act 1958, ss.91R(1), 424A |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| First Applicant: | MZWTE |
| Second Applicant: | MZWTF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1481 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 24 August 2005 |
| Date of Last Submission: | 25 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr K. Kappadath |
| Solicitors for the Applicants: | Ambi Associates |
| Counsel for the Respondents: | Ms H. Riley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $8,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1481 of 2004
| MZWTE |
First Applicant
| MZWTF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants are husband and wife. The First Applicant was born in 1962. He is a Sinhalese citizen of Sri Lanka and is of the Methodist religion. He worked in Sri Lanka as a restaurant manager. The Second Applicant, his wife, makes no refugee claims of her own. The Applicants arrived in Australia on 21 July 2001.
On 14 August 2001 the Applicants lodged an application for a protection visa and in that application the Second Applicant was included as a family member.
On 14 January 2002 a delegate of the First Respondent refused the application for a protection visa. On 15 February 2002 the Applicants applied to the Refugee Review Tribunal ("the First Tribunal") for review of that decision. The First Tribunal, by a decision dated
19 February 2003, affirmed the delegate's decision not to grant protection visas. An application was filed in the Federal Magistrates Court on 11 April 2003 and an amended application filed on 8 August 2003 in the Federal Magistrates Court seeking review of the first RRT decision. That application was the subject of orders by consent made on 5 February 2004 by a Federal Magistrate. The orders of the court included an order setting aside the first RRT decision and remitting the matter for further consideration. The orders did not include any attachment setting out in brief forms the reason why the First Tribunal decision was set aside and remitted. It is desirable that reasons appear, albeit in brief form, so that upon a rehearing by a differently constitute Tribunal any error identified which caused the first decision to be set aside and remitted would be apparent to the Tribunal member hearing the application after remittal. Following a request by the court lawyers for the First Respondent ultimately provided the court with a brief summary of the reasons why the First Respondent had agreed to setting aside the First Tribunal decision and I shall refer to those reasons later in this judgment.
In the application before this court the Applicants seek review of a decision of the Refugee Review Tribunal dated 28 September 2004 ("the Second RRT decision") where the Tribunal again affirmed a decision of the delegate of the First Respondent to refuse to grant protection visas to the Applicants.
The applicant's claims
The Second Tribunal summarised the Applicants claims which appeared in the protection visa application (Court Book page 27), written submissions to the Tribunal (Court Book 118), evidence before the First Tribunal and evidence before the Second Tribunal. Those claims have been accurately summarised in the First Respondent's contentions as follows:-
“4. In an annexure to his protection visa application (CB27), the applicant said the following:
a. the applicant worked at a prestigious hotel in Colombo as a restaurant manager;
b. the hotel belonged to an Indian chain of hotels and its senior management were Indian expatriates;
c. the management catered to the needs of powerful politicos;
d. the government provided the hotel with elite guests and the politicos were rewarded for their services;
e. the management of the hotel was politically influential and could overpower industrial disputes;
f. the applicant was a vice-president of a branch of the Ceylon Mercantile Union (“CMU”);
g. the CMU was ineffective in dealing with employee related issues;
h. due to the applicant’s exposure to the lives of high rollers, he was in a state of disbelief and frustration about the ways in which the State’s wealth was wasted;
i. the applicant decided to publish and distribute a pamphlet informing the employees of their rights and of the widening gap between rich and poor;
j. the pamphlet ended up in the hands of politicians who were regular visitors to the hotel; the applicant was warned by management on several occasions and branded as a trouble maker;
k. the applicant organized a JVP affiliated union as the JVP was the only movement which condemned politicians for their misuse of public wealth and power;
1. the applicant was threatened by management with the loss of his job and he was made aware of the influence of the hotel chain on his future prospects in the hospitality industry;
m. the management implemented performance appraisal based annual pay increments; the applicant refused to participate in this scheme;
n. on 27 June 2000, the applicant received a letter terminating his employment; the letter alleged that the applicant had threatened to kill members of the senior management;
o. the applicant commenced unfair dismissal proceedings;
p. during the course of the proceedings, the applicant received numerous anonymous telephone calls purportedly made by sources employed by the executive management of the hotel with the blessing of government politicians;
q. the applicant decided to reside at his fiancée’s house, due to the fear of being persecuted; she, too, began to receive telephone death threats;
r. on 7 June 2001, the applicant agreed to withdraw the unfair dismissal case and on 11 June the hotel agreed to pay him Rs 300,000 plus a gratuity;
s. the applicants were married on 19 June 2001, at a simple ceremony and applied to come to Australia on 22 June 2001;
t. until their arrival in Australia, the applicants lived together away from their family homes for fear of being persecuted.
5. The applicant made a written submission to the Tribunal: CB118. In that submission, the applicant said, among other things, that:
a. the JVP is today a much recognized political party for the working class;
b. the high officials at the hotel did not welcome the JVP affiliated union at their establishment as it would disturb the privacy of the political figures;
c. the JVP affiliated union was a threat to the profiles of top politicians and officers and mercenaries as information can be publicized during general elections;
d. management dismissed the applicant with the support of top politicians and high ranking officers;
e. the hotel desperately needed to get rid of the applicant to maintain the support of the high ranking politicians;
f. at the time of the applicant’s unfair dismissal proceedings, he started to receive telephone death threats requesting him to cease all connections with the union and withdraw the case;
g. even after withdrawing the case, he continued to receive death threats; this shows that it was his involvement with the JVP affiliated union that caused such an adverse reaction;
h. if the unfair dismissal case had proceeded, the applicant would have received a lot of publicity;
i. since the applicant’s knowledge of misconduct by high ranking politicians was well known in political circles, the applicant became a political victim;
j. even after withdrawing the case, it remained possible that the applicant would be hunted down to make sure such information remained out of the public arena.
6. At the oral hearing before the first Tribunal, the applicant said (CB142), among other things, that:
a. after he left the hotel, he obtained other employment (at a higher salary);
b. the JVP at the time of the events in question was part of the coalition government;
c. during his work, he overheard politicians talking about secrets about planning murders;
d. the people making the telephone threats against the applicant never identified themselves;
e. the threats began about a week before he was dismissed;
f. he lived in Sri Lanka for a year after the threats began;
g. he was not harmed because he was in hiding, even though he was in employment;
h. he was not an office bearer in the JVP affiliated union;
i. he fears for his life because he knows of discussions conducted by politicians whose careers could be ruined if he revealed the details.
7. At the oral hearing before the second Tribunal, the applicant said (CB142), among other things, that:
a. the threats began about a week before he was dismissed;
b. he has no fear of harm due to his JVP membership as such.”
It was agreed at the hearing that the First Respondent's summary of the material was accurate.
The second tribunal's decision
In its decision the Second Tribunal, after reciting in detail the claims of the applicant and referring to relevant country information, accepted that the applicant is a citizen of Sri Lanka and is a Sinhalese. It further accepted that he was employed in increasingly senior positions by a particular company and that most recently as assistant manager and that he was dismissed from his job several years ago. It accepted the applicant obtained legal advice and challenged his dismissal in the labour Tribunal but that he later settled the case with the company and withdrew his action in that Tribunal. It accepts the claim as they were clearly and consistently made by the applicant and the documentation he submitted supported the claims.
The Tribunal did not accept that the applicant overheard anything that would now be a threat to the careers of any politicians.
It is relevant to set out the following extract from the Tribunal's findings where it states the following at Court Book pages 222-223:-
“The thrust of the Applicant’s claim is that he fears harm from Person A and Person B and the President, or politicians generally (or criminals acting on their behalf), because they want to ensure that he remains silent about their secrets. The Applicant’s evidence was that these secrets were about their connections with thugs and the underworld and about planned killings; he explained that he overheard conversations about such matters over the years when employed with the company as they did not stop talking when he was around. The Tribunal has some doubts as to the credibility of the Applicant’s claim to have overheard such conversations in the circumstances claimed but for the present purpose it accepts that he did overhear illegal or criminal activities being discussed. However, the Tribunal is not satisfied that the Applicant’s fear of harm from these politicians or politicians generally or criminals acting on their behalf; for the reason claimed, is well-founded, because the Tribunal does not accept that the Applicant heard anything secret (about killings, criminal acts generally, or about political strategy or other matters) that, if revealed would be a threat to those politicians or to their careers, now. This is because the Applicant has not been in a position to overhear such conversations for some years now, because his evidence about what he overheard was very vague and, as well, he was unable to remember when he heard particular conversations or the circumstances in which he heard them and he has nothing to support his claims about what he allegedly overheard, and because although he has worked at the company for many years and had been hearing such conversations for years, he never revealed anything he heard to the authorities, rival politicians, the media, victims’ family or friends, nor did he ever threaten to reveal such information. In addition, as the clippings the Applicant submitted to the Tribunal show, it is well known, or commonly rumoured, that many politicians have business interests and in many cases, connections with thugs and members of the underworld, and that violence, particularly but not exclusively in the lead up to elections, is commonplace.”
In relation to the applicant's claim to having received threats, the Tribunal made the following finding at Court Book pages 223-224:-
“The Applicant claimed to have received threats but as his evidence about when these threats began was inconsistent, the Tribunal does not accept that he (or his then fiancée after he moved into her residence) was threatened. In his original written evidence he claimed that he lodged a case with the Labour Tribunal and during the course of the proceedings at the Labour Tribunal he received threatening calls. In seeking review he reiterated that at the time of the case with the Labour Tribunal he started receiving threatening calls. In his oral evidence the Applicant claimed that the calls began about a week before he was dismissed and he was told to keep away from the JVP and JVP union. The Tribunal also rejects the Applicant’s claim to have been threatened because the Tribunal finds the claim inherently implausible. For example he, and his wife claimed, that the substance of the threats was that he must stop his activities with the JVP and with the JVP union, and they both claimed that the threats continued until after they came to Australia, yet the Applicant had not been employed, let alone active in the formation of the JVP union for some years and he said he was never otherwise active with the JVP.”
In relation to the Applicant's claim that he was deprived of employment after he was dismissed and his fear that he would not get employment if he were to return to Sri Lanka. The Tribunal at Court Book page 224 relevantly found as follows:-
“The Applicant claimed that be was deprived of employment elsewhere after he was dismissed and his fear, if he returns to Sri Lanka now, is that he would not get employment in his field or indeed in any capacity. He asserted that employers won’t employ him because of his previous employment history and he suggested that they won’t employ him because they don’t want an employee like him (presumably meaning a union member or organiser). The Tribunal rejects the Applicant’s assertions and is not satisfied that the Applicant’s fear is well-founded. This is because it was also the Applicant’s evidence that the JVP offered to employ him but he declined, because he had work as a purchasing manager at a higher salary than at the company, for the period he remained in Sri Lanka after being dismissed from the company and because the company service statement makes no reference to his past trade union or JVP union activities, and his main previous employer for the last several years now has been in Australia where he is obviously very highly regarded by management and clients.”
The Tribunal then proceeded to consider whether even if it was satisfied that the Applicant were to suffer discrimination in employment that the discrimination would amount to persecution. It relevantly considered that persecution pursuant to s.91R(1) of the Migration Act 1958 (the Migration Act) must involve "serious harm" and made the following significant finding at Court Book page 224:-
“… In this case the Tribunal is satisfied that even if the Applicant can’t find employment in his chosen field, he wasn’t denied the capacity to earn a livelihood in the past and the evidence does not suggest that he would be denied this capacity if he returns to Sri Lanka now. The Tribunal is not satisfied that employment in other than the Applicant’s chosen field is serious enough to bring the Applicant within the Convention. The Tribunal is also not satisfied that the Applicant will be denied the capacity to earn a living if he returns to Sri Lanka now.”
The Tribunal then further accepted country information to the effect that Sri Lanka has a strong union tradition with over 1600 unions in Sri Lanka and concluded that "the applicant's previous experience with the labour Tribunal does not suggest that he would be denied adequate state protection of a Convention reason.
The Tribunal then stated that it was "satisfied that the applicant does not have a well-founded fear of persecution within the meaning of the Convention if he returns to Sri Lanka".
The applicants’ grounds
Denial of natural justice and breach of s.424A of the Migration Act
It was common ground that the Second Tribunal included in the summary of the Applicants’ claim a reference to the oral evidence given by the applicant at the First Tribunal hearing, so much is clear from the summary set out earlier in this judgment. To understand this ground, however, it is also useful to refer to the Supplementary Court Book which is a transcript of the hearing before the Second Tribunal where reference is made by the Tribunal to the First Tribunal in the following extracts:-
“I read all the information that you've provided in the protection visa application and in your first review application and I've listened to the tape of that First Tribunal hearing.”
(SCB page 3, lines 13-15)
“... what I'd like you to tell me is what concerns you about going back to Sri Lanka now given that it's more than three years since you came here. I have read everything that you've provided and I have listened to the tape but I want to hear now - because I have to look at what will happen if you go back now. So I don't need you to tell me the story again at the moment, I just want to know what you think would happen to you if you went back now.”
(SCB page 11, lines 21-28)
It is also relevant to note that the Second Tribunal referred to the First Tribunal's reference to the Applicants’ claim under the heading of "Claims and Evidence" in the First Tribunal decision. After referring to that, the following exchange occurred between the Tribunal and the Applicants through an interpreter:-
MS O’BRIEN: Yes, I realise. Okay. On bottom of page 4, it sets out claims and information provided to the Department of Immigration, right? Then the next few pages are all about what your written evidence was, and then the next section on page 7, oral evidence, tribunal hearing, and that goes through to near the bottom of page 9. Now, has your claims and evidence been set down in that document accurately?
INTERPRETER: I presented all this evidence within a month coming after here, within few days. I was not in a good mental state at that time. I think that mostly what has been written here is correct except for tiny - - -
MS O’BRIEN: Tiny things like what?
THE APPLICANT: Fm sorry, I can’t find it.
MS O’BRIEN: Can you remember if it was something that was in your written evidence or was it in the tribunal member writing up what you said at the hearing?
THE APPLICANT: No, I can’t remember now what
MS O’BRIEN: Mr De Soza, can you help us with that? Is this an accurate reflection of the claims and evidence?
MR DE SOZA: Actually I wasn’t present at that hearing when this was taken.
MS O’BRIEN: You weren’t present
MR DE SOZA: Yes, I was overseas, and I made few requests to the tribunal asking for a fresh date as I got stuck in Sri Lanka. So the tribunal, you know, just- - -
MS O’BRIEN: But you’ve since had the tape, you’ve had the decision, you’ve been to the court. You must have looked at it.
MR DE SOZA: There are differences.
MS O’BRIEN: Yes.
MR DE SOZA: There are differences in the tribunal hearing record what has been- - -
MS O’BRIEN: What’s wrong with the hearing record?
MR DE SOZA: (indistinct) submit all that written statement.
MS O’BRIEN: As far as I thought, yes. You challenged this decision in the court. You must have been - - -
MR DE SOZA: Yes.
MS O’BRIEN: - - - very familiar with what, if anything, was wrong with the recording of the claims and evidence. Is there any major errors do you think? I’m not talking about the findings and reasonings. I’m talking about the accuracy of the claims and evidence that are recorded there. That’s all I’m talking about.
MR DE SOZA: I need some time to give a written submission as to these - - -
MS O’BRIEN: Okay. Depending on - well, we’ll have to see what you have to say about that then I suppose.
INTERPRETER: Can I explain something here?
MS O’BRIEN: Yes. Page?
INTERPRETER: On page 13.
MS O’BRIEN: Page 13?
INTERPRETER: Yes.
MS O’BRIEN: I’m not talking about that section. I have to make my own findings and give my own reasons for whatever findings I make. I don’t rely on what the first tribunal found and why she found that. What I want to know - - -
THE APPLICANT: Sorry about that.
MS O’BRIEN: No, that’s okay. I’ll explain. What I want to know is when the first tribunal typed up the claims and evidence from page 4, what you said at the first tribunal hearing from page 7 up to the end of that section near the bottom of the page 9, what I want to know is has the first tribunal made any mistakes in writing that up? That’s all I want to know. I’ll let you and your adviser go away and answer that in writing, but I’ll need to have something within a week if there’s anything that’s inaccurately recorded, the findings and reasons. I’m sure you appreciate this.
MR DE SOZA: Yes.”
The Second Tribunal after further discussions about the claims, including a specific claim arising out of a particular incident further indicated that he would have to check the tape of the First Tribunal hearing. During the course of a further exchange, the applicant agreed that he had mentioned another incident to the First Tribunal (SCB lines 35-42, page 53).
It will be noted that the Second Tribunal gave the applicant an opportunity to identify any inaccuracies in the First Tribunal summary of the applicant's claims. It further stated the following at SCB page 62, lines 16 to 23:-
“MS O’BRJEN: Okay. I don’t have anything more, and if Mr De Soza doesn’t have anything he’d like me to ask either of you, then I suggest that we close the hearing, and if Mr De Soza wants to make written submissions about the accuracy of the claims and evidence and the oral evidence in the first tribunal decision or on any other matters, then you can do that in the, next week. Is that okay with you, Mr De Soza, if we make it tomorrow week, close of business?”
It should be noted that no further submissions were received by the Second Tribunal as at the date of its decision.
Against that background information concerning the reference by the Second Tribunal to the First Tribunal hearing, it was submitted for and on behalf of the Applicants that the Second Tribunal did not inform the applicant of its reliance on the applicant's oral evidence given at the First Tribunal hearing. It was argued that this was a breach of the Second Tribunal's duty imposed upon it by s.424A of the Migration Act as it neither informed the applicant of its reliance on that information or invited the applicant to comment upon it. That failure constituted a denial of procedural fairness.
The applicant relied upon the decision of the High Court in the SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (SAAP) and in particular the passage from Hayne J at [208] where his Honour states:-
“208. Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
It should be noted that during the course of the hearing, as indicated earlier in this judgment the court was concerned to obtain a summary of the reasons why the decision of the First Tribunal was set aside and the matter remitted. Ultimately a statement was provided by the First Respondent purporting to be a summary of the reasons why the First Respondent had agreed to set aside the decision of the First Tribunal. Reference was made to the applicant's claim of dismissal from employment not being serious enough, according to the First Tribunal, not to amount to persecution. It was noted that the First Tribunal appeared only to consider reference to the applicant overhearing conversations relating to political figures conspiring to assassinate opponents and the First Tribunal findings that those conversations were unlikely to have occurred in a hotel restaurant, leading the First Tribunal to decide that the applicant did not have a well-founded fear of persecution. The First Respondent indicated that the advice had been received that the First Tribunal had failed to exercise its jurisdiction "by overlooking the broader elements of (the Applicants) claims, in particular the overhearing of conversations which were not about political assassinations and his general involvement in the JVP." As a result of that failure, the First Respondent was advised that the First Tribunal's decision was likely to be set aside.
According to further submissions filed by the applicant after the hearing the reason for remittal is only a partial summary of the applicant's claims which it sought to challenge shortcomings of the decision of the First Tribunal. It was submitted that a denial of procedural fairness by the Second Tribunal occurred in the circumstances where that Tribunal was entrusted with the task of independently reviewing the primary decision and "acted in excess of its jurisdiction and/or failed to exercise its jurisdiction in taking into account and relying upon the oral evidence of the applicant given at the first hearing and the statement of reasons sent by the DIMIA setting out the reasons, albeit in summary for the decision of the First Tribunal that was set aside on judicial review."
The First Respondent submitted that there is no breach of s.424A in the present case. The decision of the High Court in SAAP was different to the present case as the High Court in that case considered information not given by the Applicants themselves for the purpose of the application, but rather by a relative. It was submitted by the First Respondent the applicant has failed to identify any part of the evidence given at the hearing before the First Tribunal that the Second Tribunal relied upon adversely to the applicant. In any event, it was submitted, the evidence given by the applicant at the first hearing was evidence that the applicant gave himself for the purpose of the application. That evidence, it was submitted, would fall within the exception in s.424A(3)(b) of the Migration Act which provides that the section does not apply to information that the applicant gave for the purpose of the application. It was further submitted that there is no reason in principle why relying on information given by the applicant himself for the purpose of the application would be a breach of the common law rules of natural justice.
The First Respondent, in supplementary contentions, referred the court to the decision of Nicholson J in WAIX v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 896 (WAIX) where His Honour stated the following at paragraphs 23-26:-
“23 This ground of appeal alleges that the second Tribunal did not carry out a re-determination of the delegate’s decision refusing to grant a protection visa to the appellant because it had regard to the first Tribunal’s file, adopted the first Tribunal’s summary of the appellant’s claims and relied upon matters stated by the appellant at the first Tribunal hearing, when all matters relating to the first Tribunal hearing should have been ignored and matters of evidence should have been resolved solely on the basis of the evidence at the hearing before the second Tribunal.
24 In support of this ground the appellant relied upon Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225 and 227 – 228. That case considered the effect of a conviction for a criminal offence being set aside. It was held that the setting aside of the conviction had the result that it was a void ab initio. It has no application to administrative decisions by a tribunal. It is not the case that the decision on review to set aside the decision of a tribunal has the effect that the processes before that tribunal are void ab initio. There are good reasons why that should not be so. Why should it be the case that a statement by a person such as the appellant in the migration jurisdiction taken upon arrival in Australia and subsequently while in detention should remain standing as evidence but not so the evidence given by him at a first Tribunal hearing not be taken into account? There is no basis in law or logic why the approach in the criminal jurisdiction should be applicable. Furthermore, there is every reason in law and logic why the setting aside of a conviction should have the consequences which Cavanough’s case found it to have.
25 The order made by Lee J, that the decision of the first Tribunal be set aside, is an order which related only to the ‘decision’ of the first Tribunal. It did not affect the reasons of that Tribunal. Consequently, the order made by his Honour in no way precluded the second Tribunal from considering evidence given by the appellant at the first Tribunal hearing. In the migration jurisdiction, it is common in the course of administrative tribunal hearings for evidence of witnesses to be compared to accounts which they may have given, for example, on arrival and on subsequent interviews. This is done for the purpose of locating and considering the effect of any inconsistencies in that evidence. The position is no different in relation to the account given by way of evidence by the appellant to the first Tribunal hearing. There is nothing in law to preclude the second Tribunal having regard to the content of that account and examining it for any inconsistencies with the evidence given to the second Tribunal hearing.
26 Furthermore, when the second Tribunal adopted the first Tribunal’s summary of the appellant’s evidence, it said ‘the Tribunal, differently constituted, summarised the claims made at the different stages of the determination process as follows and the Tribunal is satisfied that this is an accurate summary of the applicant’s claims’. The second Tribunal, therefore, put its own imprimatur on the summary of the first Tribunal and did not simply adopt that summary. Furthermore, it was a summary of the claims made by the appellant.”
It was submitted in the present case that the Second Tribunal made its own summary of the evidence given by the Applicant at the First Tribunal hearing. Further, it was submitted, as set out in the extracts from the supplementary Court Book, the Second Tribunal gave the applicant an opportunity to identify any inaccuracies in the First Tribunal's summary of the Applicant's claims.
The First Respondent referred to another authority concerning this issue which I do not need to set out in this judgment.
According to the First Respondent's submissions, however, the Second Tribunal made it clear that it considered the evidence given by the applicant to the First Tribunal, it told the applicant that it listened to the tape of the First Tribunal hearing. Reference was made to extracts set out earlier in this judgment and in particular where the Second Tribunal provided the applicant with an opportunity to make written submissions concerning any inaccuracies of the First Tribunal's summary of the applicant's claim. Further, it was submitted, the applicant himself relied upon matters raised by him at the first hearing. He confirmed that he had mentioned certain issues before the First Tribunal and the Second Tribunal indicated it would check the tape.
It was submitted by the First Tribunal that in this application where the applicant himself effectively asked the Second Tribunal to take account of the evidence given to the First Tribunal, then the applicant cannot now be heard to take issue with the process.
Reasoning
In my view there is no breach of s.424A and/or any denial of natural justice arising out of the first ground relied upon by the Applicants.
On a proper reading of the supplementary Court Book, relevant extracts of which have been set out above, combined with the Second Tribunal's decision, it is clear that it has simply summarised the claims in evidence before the First Tribunal. It has then proceeded to ask questions of the applicant in relation to the claims in further detail.
In this case I am satisfied that the setting aside of the First Tribunal decision and remittal to a differently constituted Tribunal did not require the Second Tribunal to ignore the claims and evidence presented to the First Tribunal. If it was required to do so, then the order could have specifically referred to evidence of the First Tribunal which in some cases may well be so tainted that a Second Tribunal should not have any regard to the material. For example, if a First Tribunal hearing was conducted without the assistance of an interpreter and answers to questions concerning claims and evidence were rendered meaningless, it would be inappropriate for a Second Tribunal to have regard to the First Tribunal's hearing where a finding of a court clearly demonstrates that evidence given by an Applicant at a First Tribunal hearing would be of no value or would otherwise be unreliable. That is not the case in the present application. In the present application the applicant himself relied upon material at the First Tribunal hearing and the Second Tribunal, quite properly, gave the applicant an opportunity to make written submissions concerning any perceived inaccuracies arising from the First Tribunal's summary of the applicant's claims. In this instance, whilst the applicant may have had other grounds to challenge the First Tribunal decision, there is no material before the court to suggest that the First Tribunal summary of the applicant's claims is in any way defective. It is indeed information provided by the applicant where the applicant only referred to what might be described as "tiny" errors and when given the opportunity to do so, failed to indicate any inaccuracies in the First Tribunal's summary of the Applicant's claims.
In reaching my decision that there has been no denial of natural justice I apply and adopt the reasoning of Nicholson J in WAIX. That reasoning is apposite to the present application.
As indicated, I am otherwise satisfied that this is not a case where s.424A applies and I am satisfied that in this instance the applicant, by reference himself to the First Tribunal's summary of his claim, has effectively conceded that that summary was accurate and represented information he provided himself for the purpose of the application.
I accept the submissions made on behalf of the First Respondent that the facts and circumstances in this case may be distinguished from the facts considered by the High Court in SAAP. I note that SAAP was applied by the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (SZEEU) and that the parties did not seek leave to make further submissions arising from the decision of the Court in that case. That decision does not detract from my conclusion of the facts and circumstances of this application are not the same as those facts considered by the High Court in SAAP nor do I regard the reasoning of the Full Court in SZEEU as precluding this Court from following and adopting the reasoning of Nicholson J in WAIX.
It follows that the ground relying upon a breach of s.424A should fail.
Relevant/Irrelevant considerations
As I understand it, the applicant sought to argue that the Second Tribunal had failed to give proper, genuine and realistic consideration of the merits of the application which amounts to a constructive failure to exercise its jurisdiction. It was contended that the Second Tribunal by referring to alleged inconsistencies in the applicant's evidence relied upon were objectively insignificant and superficial. Again, reference was made to the Second Tribunal taking into account oral evidence of the applicant given at the First Tribunal hearing.
The First Respondent submitted that this ground simply seeks to agitate the merits of the case and submitted that it is a matter for the Second Tribunal to determine whether inconsistencies render an applicant's account implausible (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611).
Specific reference was made to the one inconsistency relied upon by the Second Tribunal concerning the timing of alleged threats against the applicant. It was submitted that having regard to the context of the history relayed by the Applicant, whether the threats began before the applicant was dismissed or during the subsequent labour Tribunal hearing was a matter of significance. If the applicant was confused about a significant matter, then that is material which the Tribunal can rely upon in determining that the claims were implausible or fabricated.
If the matters were taken into account by the Second Tribunal arising out of oral evidence given at the First Tribunal hearing and are claimed to be irrelevant, then it was submitted by the First Respondent that the applicant had an opportunity to identify those matters and failed to do so.
Reasoning
In my view there has been no error demonstrated on the material in the manner in which the Second Tribunal considered the claims and evidence. It was entitled to make its findings concerning the claims of the applicant which it regarded as implausible. It was also entitled to identify any inconsistency and to then draw appropriate conclusions.
I accept the submissions of the First Respondent that it is a matter for the Second Tribunal to determine those considerations which are relevant. In this instance it was also entitled to consider the oral evidence of the applicant before the First Tribunal hearing. If any irrelevant matters had been set out by the First Tribunal in its summary of the applicant's claims, then those matters could have been identified by the applicant when invited to do so by the Second Tribunal or, at the very least, identified in some detail before this court.
I cannot see any material set out in the summary of the oral evidence of the applicant before the first hearing relied upon by the Second Tribunal which could properly be regarded as containing irrelevant matters. All the claims have been thoroughly set out by the Second Tribunal and it has made findings of fact reasonably open to it free of jurisdictional error.
Apprehension of bias
This ground, although raised in submission, again relies upon the manner in which the Second Tribunal dealt with and/or relied upon the oral evidence given at the first hearing. It was submitted that reliance on the oral evidence of the applicant given at the first hearing leads to the "inescapable conclusion that the Tribunal appears to have prejudged the applicant's case or was committed to a conclusion already formed by it."
Reference was made to Re RRT Ex Parte H (2001) 179 ALR 425 where the High Court formulated the test as "a hypothetical, fair‑minded layperson who was 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" as applying to the Tribunals.
It was further submitted that in reliance on the statement of reasons for remittal of the matter after the First Tribunal's decision was set aside that the Second Tribunal failed to bring an independent or impartial mind to the Second hearing.
The respondent submitted that there was nothing untoward in the Second Tribunal considering relevant evidence given to the previous Tribunal. Consideration of that evidence, it was submitted, is not indicative of bias, but a genuine attempt to deal with the matter diligently and thoroughly.
Reference was made to the summary of the hearing before the Second Tribunal where it pursued a number of issues and had regard to the applicant's answers. It was submitted there was no evidence before the court substantiating the applicant's allegations that the Second Tribunal appears to have been biased.
Reasoning
In my view this ground should fail. I accept the submissions made for and on behalf of the First Respondent that the decision of the Second Tribunal, particularly when read in the context of the transcript provided in the supplementary Court Book demonstrates clearly that the Second Tribunal has reached its own decision free of bias. Whilst it clearly has referred to and listened to the tape-recordings of the oral evidence given by the Applicant to the First Tribunal hearing and, has then summarised that evidence, it does not follow that it has simply adopted the First Tribunal's reasoning. Indeed, it is clear from the material before the court that the Second Tribunal has conducted its own hearing and pursued issues not pursued by the First Tribunal. By pursuing those issues it has overcome the perceived difficulties which arose from the First Tribunal decision. It has done so appropriately and, in my view, free of any suggestion of apprehended bias.
When considering the approach by the Second Tribunal I am satisfied, applying the relevant authorities, that in this instance a fair-minded person, 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 regard the procedure adopted by the Second Tribunal as constituting apprehended bias. It has simply informed itself of relevant material, including the oral evidence of the applicant given at the First Tribunal hearing. It should also be noted that evidence of that kind is important for a Second Tribunal, particularly where it may seek to draw an adverse finding against an applicant who may, in some circumstances, have failed to raise an issue when given the opportunity to do so at a first hearing or in early documentary material.
By making reference to the evidence at the first hearing there is indeed an advantage to the applicant, at least to the extent that a degree of consistency may be discerned between evidence at the first oral hearing and evidence and material provided at the Second hearing. In any event, I am satisfied that this is not a case where the court could conclude that the Second Tribunal has demonstrated apprehended bias.
Accordingly, this ground fails.
Conclusion
For the reasons given, it follows that the application should be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 June 2006
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