MZXBF v Minister for Immigration
[2006] FMCA 1809
•15 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBF v MINISTER FOR IMMIGRATION | [2006] FMCA 1809 |
| MIGRATION – Apprehended bias – behaviour of Tribunal member said to indicate pre-judgment – alleged inducement by Tribunal to think there was no need to call a witness and that reliance could be placed on a statutory declaration – all allegations without any foundation – recording of hearing did not factually support the allegations. |
| Ebner v VT Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 |
| Applicant: | MZXBF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | MLG1014 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 17 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greentree |
| Solicitors for the Applicant: | Nevett Ford |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to show her as
“The Minister for Immigration and Multicultural Affairs”
The amended application filed on 27 February 2006 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $11,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1014 of 2005
| MZXBF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 27 February 2006, the applicant seeks to set aside an order of the Refugee Review Tribunal (the Tribunal) dated 13 July 2005.
The applicant contends that the Tribunal decision was infected by jurisdictional error on two bases:
a)That the Tribunal member did not bring an impartial mind to the question of whether the applicant should be granted a protection visa having displayed apprehended bias through pre–judgment of the issue; and
b)That the Tribunal breached the hearing rule in that it induced a belief in the applicant that there was no need to call a witness to give evidence in person as her statutory declaration would suffice.
Background
The applicant is a Philippine citizen who arrived in Australia on 14 May 2004.
The applicant claimed in support of his application for a protection visa that, as a result of his actual or imputed political opinion, he faced a real chance of persecution by his political opponents if he was to return to the Philippines in the reasonably foreseeable future.
The applicant is legally qualified and from 1986 until his departure from the Philippines in 2004, the applicant worked as a legal researcher at a regional trial Court.
The applicant claimed that from 1995, in addition to his employment with the Court, he performed part-time work for a politically active family during election campaigns. This involvement, he claimed, brought him into conflict with a rival political family who had ascribed to him authorship of a document exposing the corrupt criminal activities of that rival family. He claimed further that during the time before his departure he was subjected to threats by telephone, text messages and letters.
In 2004, he claimed, he was informed that he was on a hit list. He recited how one of his organisers had been killed five days prior to an election and that generally opponents of the rival political family and organisations were assassinated.
He further claimed that because of the power and wealth of the rival family he was precluded from relocating within the Philippines to avoid risk.
He was also involved in various organisations with a political flavour that he claimed attracted the adverse attention of his political enemies.
Tribunal's decision
For the purposes of this review, because of the very narrow grounds relied on by the applicant, it is not necessary to go into any great detail about the Tribunal's decision and reasoning. The Tribunal conducted the hearing over two days. The first day was on 1 April 2005 and the second day a week later on 8 April 2005.
In making some of its findings, the Tribunal found the evidence of the applicant inconsistent and discovered discrepancies, which in general terms, reflected on his credibility.
Significantly, as far as this review is concerned, the Tribunal rejected the evidence provided by the applicant's sister in the form of a statutory declaration.
Applicant's contentions
On the applicant's first ground that there was apprehended bias on the part of the Tribunal, he highlights various examples of the conduct of the Tribunal which he claims is indicative of that apprehended bias.
He set out 26 paragraphs of particulars in the amended application. I do not intend to detail each of those particulars but summarise them as relating to allegations of the Tribunal member raising her voice, being abrupt and rigid in her questioning, being sarcastic, exhibiting displays of body language which the applicant took to be derisive and expressing incredulity, laughing at the applicant, showing disinterest in the applicant's answers and being preoccupied with shuffling papers, being discourteous, interrupting him and generally giving the appearance, from the applicant's perspective, of pre-judging the matter.
The applicant filed an affidavit setting out his subjective response to his perception of the Tribunal's conduct. In that affidavit he deposes to the fact that he was, in effect, because of the conduct of the Tribunal member, overborne and found the exercise one where he believed it futile to properly present his case. He states that the conduct of the Tribunal member precluded him from fully presenting his case.
Because the allegations made by the applicant against the Tribunal member were so serious, and should they prove to be correct, the conduct of the Tribunal member would justifiably be considered reprehensible, I listened to the full tape recording of the hearing very attentively.
It is with some surprise, therefore, that on listening to the tape recording of the hearing I came to the end not having identified any instance of conduct by the Tribunal member that would substantiate the applicant's allegations.
Instead of being overborne, in my view, the involvement and responses of the applicant are indicative of someone who gave a full and detailed exposition of his case without any evidence of obstruction from the Tribunal.
In my view, the conduct of the Tribunal member was courteous,
non-interrupting, inquisitorial and was exemplary in the way it was done. I see no criticism at all that can be levelled against the Tribunal member. The factual situation of this case is exhibited by the tape recording. It is such that it does not support in any way the allegations levelled against the Tribunal member. Further, it is quite evident that at the end of the hearing the applicant was invited to make further oral submissions if he wished or give written submissions. He did give written submissions. It is also to be remembered that the applicant was represented and prior to the decision being made, had not expressed any concerns about the conduct of the hearing.
The applicant asked me to apply the governing principle of apprehended bias as stated by the High Court in Ebner v VT Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; namely, "subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that judge is required to decide." As stated, there is nothing in the conduct of the Tribunal member that, in my view, would cause a fair minded, lay observer to apprehend bias in the Tribunal member.
I need go no further with this ground. It is one without any substance.
In addition, the contentions of fact and law filed by the first respondent, in my view, spell out the applicable law and also address those factual situations raised by the applicant that clearly are not supported by the facts of the case as disclosed in the recording of the Tribunal hearing. I adopt those contentions of fact and law.
The second ground relied upon by the applicant concerns the claim by the applicant that he was not afforded a proper hearing because he was induced into a belief by the Tribunal that it was not necessary for him to arrange for his sister to give evidence on the second day of the hearing. That a statutory declaration was all that was required to prove the point made.
Again, this allegation is not supported by the facts. The recording of the hearing clearly sets out the nature of the discussions held by the Tribunal member with the applicant as to what should be done about the applicant's sister being called to give evidence. Suffice to say, a clear direction was given by the Tribunal that the giving of evidence in person by the applicant's sister would be far preferable than relying on a statutory declaration. It is to be noted that the day before the second hearing day the applicant, through his representative, had indicated that the sister would be called to give evidence. It was clearly an intention of the applicant to call his sister to give evidence right up to that day and there can be no suggestion that he was induced into believing he did not require her to give that evidence by any conduct of the Tribunal.
Like the first ground set out above, this ground fails simply on a factual basis. The first respondent's contentions of fact and law set out some of the general issues surrounding questions of procedural fairness and for the sake of completeness I adopt those contentions of fact and law.
Conclusion
In the opening of his case, counsel for the applicant described, in respect of the apprehended bias ground, his client's case as similar to the construction of a dwelling. The analogy put by him was that a dwelling is made of bricks, mortar and sand and it is not until they are all put together that the dwelling becomes evident. Continuing that analogy further, in this particular case, the applicant attempted to construct a dwelling without foundations and on quicksand. There was no factual basis for his allegations and whatever his subjective interpretation of the conduct of the Tribunal might be, it bears no resemblance to what a fair minded lay observer would conclude about the conduct of the Tribunal member.
No error has been shown to have been made by the Tribunal, let alone any jurisdictional error. For that reason, the amended application filed on 27 February 2006 should be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Marlene Dixon
Date: 15 December 2006
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