MZXRO v Minister for Immigration
[2008] FMCA 33
•7 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXRO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 33 |
| MIGRATION – Refugee Review Tribunal – whether reasonable apprehension of bias – insensitivity – whether concluded view expressed – application dismissed. |
| Migration Act 1958, s.425(2)(a) |
| Ferguson v Cole & Anor (2002) 121 FCR 402 Macquarie Dictionary (revised third edition) |
| First Applicant: | MZXRO |
| Second Applicant: | MZXRP |
| Third Applicant: | MZXRQ |
| Fourth Applicant: | MZXRR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 951 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 14 December 2007 |
| Date of last submission: | 14 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2008 |
REPRESENTATION
| Counsel for the Applicant: (Direct Access) | Mr Jackson |
| Solicitor for the Applicant: | None |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 10 July 2007 and amended on 7 November 2007 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 951 of 2007
| MZXRO |
First Applicant
| MZXRP |
Second Applicant
| MZXRQ |
Third Applicant
| MZXRR |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicants are a Sri Lankan man, his wife and their two children. They applied for protection visas. The first named applicant, who will be referred to in these reasons as the applicant, claims to be a refugee. His wife and children made no claims of their own but relied upon the claims made by the applicant. The applications were rejected by both the first respondent's delegate and the Refugee Review Tribunal.
The applicant said that in 1989, when he was 18 years old, he was employed as a security officer for John Amaratunghe who was then a UNP Member of Parliament and the Sri Lankan Minister of Foreign Affairs. The applicant claimed that his family were strong members and supporters of the UNP. He said that the JVP threatened his family and told him to stay away from the Minister. In 1989, whilst attending a funeral of a political dignitary with his Minister, the applicant was shot in the upper chest. The applicant survived and said that the Minister sent him to work in the Sri Lankan consulate in Lebanon. The applicant worked there for the next five years.
In 1994, the People's Alliance won government from the UNP. The applicant returned to Sri Lanka in 1995 but was initially unable to find employment. He then worked as a marketing executive and shipping coordinator from 1996 to 1998, as a dispatcher in Saudi Arabia from 1998 to 2001 and as a company director in Sri Lanka since 2001.
The applicant claimed that in and after 2001, he actively campaigned for the UNP which was re-elected to government in 2001. He said that in April 2004 PA supporters attacked him and damaged his property. He said that when he refused to change his political allegiance, PA supporters made false allegations against him and damaged his business, alleging that he was doing business with the LTTE and assisting criminals to escape police custody. The applicant said that he was forced to close his business at the end of 2005.
The applicant said he had difficulty obtaining proper medication for his son who has haemophilia B. The applicant claimed that his difficulties in this regard constituted an example of political harassment.
The Tribunal's decision
The Tribunal accepted that the applicant was an active member of the UNP from the 1980’s and his strong connections with the UNP enabled him to be employed firstly as a security officer for a minister in Sri Lanka and later in the Sri Lankan consulate in Lebanon. The Tribunal also accepted that the applicant had been shot by a JVP gunman in 1989. However, the Tribunal noted that the applicant made no claims that he had experienced any harm from the JVP since it ceased being an outlawed guerilla movement and became a legitimate political party in the 1990s.
The Tribunal considered that any allegations against the applicant in relation to assisting the LTTE or helping criminals to escape would have resulted in serious criminal charges being laid against him. As no such charges had been laid, the Tribunal considered that the allegations had been fully investigated by the police and had been found to be baseless.
In relation to an alleged attack in April 2004, the Tribunal noted that the applicant told the Tribunal that his attackers had told him not to be involved in politics any more. However, in a police report about the same incident, there was no mention of the attackers telling the applicant to stop being involved in politics. Based on this discrepancy, the Tribunal did not accept that there was any political motivation behind the attack.
The Tribunal also rejected a claim, made for the first time at the Tribunal hearing, that the PA held him responsible for the arrest of prominent PA people during the period of the UNP government. The Tribunal rejected the claim that the applicant was forced to close his business in December 2005 based on the applicant’s own evidence that the business continued trading until June 2006. The Tribunal did not accept that the applicant's son was denied hospital treatment or such medication as was available in Sri Lanka.
Ground of review
The amended application filed on 7 November 2007 was in substitution for the original application. Only one ground of review was relied upon, namely, apprehended bias. However there were four particular passages in the transcript which were said to be indicative of apprehended bias.
The test for apprehended bias
The test for apprehended bias in the case of an administrative tribunal, as opposed to a court, was explained by Gleeson CJ and Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] and [28] where there Honours said:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. (footnotes omitted).
In NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 at [19], Allsop J highlighted the difference between a hearing conducted by a court and a hearing conducted by the Tribunal in the following terms:
The tribunal … must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
In Ex parte H, Gleeson CJ and Gaudron and Gummow JJ addressed that issue, and the proper limits to be observed, at [30] and [31]:
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
It is well established that rudeness or insensitivity without more is not sufficient to constitute apprehended bias. In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, Kenny J said at [44] and [81] that:
[44] … Being querulous, peevish or even rude would not, on its own, however, make out a case of disqualifying bias.
…
[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea.
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
It is also well recognised that the Tribunal will often embark on a hearing unpersuaded of the applicant's claims. That is because, if it were otherwise, the Tribunal would allow the claim on the papers and would not hold a hearing at all: s.425(2)(a) of the Migration Act 1958 (“the Act”). However, until the conclusion of all of the evidence and submissions, the Tribunal is obliged to approach its task with a mind open to being changed. This was explained by Kenny J in VFAB in the following terms:
[82] I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141: see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant's claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant's claim when the hearing commences: see s 425(1) to (2). The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim -- that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.
[83] It is no answer, in this case, to say that the Member recollected herself at the end of the hearing, if (as I find) her conduct gave rise to a reasonable apprehension that she might have so closed her mind to the applicant's case that this might distort her judgment. It is, moreover, no answer to say that the applicant was assisted by a migration agent, if (as I find) the agent was led to believe that her participation was antithetical to his interests and that there was little, if anything, that she could say that might lead the Member to change her mind. Further, in this case, it is no answer to say that the applicant was not in fact overborne. Disqualifying bias arises because the Member has so conducted herself as to create an apprehension that she might not approach her decision-making with a mind capable of being changed by further evidence, information or argument. In any case, the applicant's evidence (which, as I have said, I accept) was that he was overborne in some degree. Finally, as noted already, the Tribunal's reasons for decision provide no answer to the applicant's case.
In VFAB at [68], Kenny J also observed that an appearance of pre-judgment can be overcome by a later statement by the decision-maker which withdraws or qualifies an earlier statement.
In determining a case of apprehended bias, the court may look not only to the transcript or tape of the hearing but also to the Tribunal's reasons for decision: Ferguson v Cole & Anor (2002) 121 FCR 402 at [49].
Example 1
The first example of apprehended bias relied on by the applicant arises from the following passage of transcript:
This case provides a striking example of how reasons may fortify a suspicion that the Tribunal has a mind closed to what an Applicant has to say. The transcript records the following exchange (page 17, line 40);
MR KATSAMBANIS: So you’re telling me that the reason why the PA and its supporters and the government will target you is because they hold you responsible for the arrests of prominent PA people for crimes they had committed?
INTERPRETER: That is what I think, sir. In addition to that, I have supported the UNP immensely.
MR KATSAMBANIS: Why haven’t you made this claim before today?
INTERPRETER: I expected that this type of question will come up today in this hearing. Though these things happened to me, I didn’t take it that serious.
MR KATSAMBANIS: Is it possible that you didn’t take it seriously because the threat is not serious?
INTERPRETER: I don’t say that the threats which came to be me are not serious, what I say is the statement which I provided to the honourable tribunal will be sufficient for the hearing.
MR KATSAMBANIS: Are you telling me you made this claim up now that you’ve just told me? That based on what we have said today you haven’t convinced me of your position, so you’ve just added something else in just now, is that what you are telling me.
INTERPRETER: I don’t say, sir, original statement was (indistinct) information, what I said is that is the whole truth what has happened to me, so I made that statement. If your Honour says, I can withdraw that statement.
MR KATSAMBANIS: Okay. … (Emphasis added)
The applicant submitted that the Tribunal had drawn a very long bow in suggesting that the applicant had admitted to fabricating evidence to support a claim that appeared to be failing. In fact, in the applicant's submission, he was merely saying that he thought he would have the opportunity to expand and elaborate on his written statement at the hearing.
The applicant argued that the appearance of apprehended bias given by the transcript was confirmed by the following passage from the Tribunal's reasons:
At the Tribunal hearing, the applicant made some vague claims that political opponents in the PA held him responsible for the arrest of prominent PA people during the period of the UNP government. When it was pointed out to the applicant that he had not previously made any such claims prior to the hearing, he stated that he did not take this issue seriously even though these things happened to him and intimated that he only told the Tribunal of this matter because he feared the rest of his claims may not be accepted by the Tribunal. (Emphasis added).
The applicant contended that he had intimated no such thing and the Tribunal had unsuccessfully attempted to put words into his mouth. Moreover, the applicant argued that the claims were not particularly vague. He referred to page 17 of the transcript at lines 19 to 33, which read as follows:
INTERPRETER: In the 2001 to 2004 period a person, a political PA supporter, a former minister, Paranu Derupwota(?) and his son killed 10 Muslim people in Kandy. When UNP came into power John Amaratunghe became the minister of internal affairs, so the first thing he did was he arrested Paranu Derupwota and his son for that killing. Back then I was a prominent active member of that political party. They very well know that I was very closely associated with minister, John Amaratunghe as well as the other ministers.
There’s another politician called Mervyn Silva. His son was involved in a rape case, and during that period that person also was arrested. They think I am responsible for some things like that because I was associated with the minister. I don’t know anything about this, but they are thinking that line. I openly supported the UNP by giving them my houses and a lot of my things to hold the meetings and things like that, so they are really angry with me.
The first respondent submitted generally that the Tribunal courteously explained its procedures to the applicant and then clearly stated the matters that it accepted. The Tribunal then proceeded to question the applicant about the matters which troubled it. Afterwards, the Tribunal asked the applicant if there was anything else he wished to say. The applicant responded at some length and the Tribunal listened without interruption. The Tribunal said it would have to put some issues to the applicant in writing and said that after it had received the applicant's response it would consider everything and write its decision. The Tribunal did in fact put various matters to the applicant in writing.
In relation to the first example specifically, the first respondent submitted that it was implicit in the applicant's statement that he thought his written claims would be “sufficient for this hearing”, but that once the insufficiency of his written claims became apparent he wished to augment those claims. The first respondent submitted that while a different decision maker may not have interpreted the applicant's comments in the same way, the Tribunal's interpretation was open to it, and does not give rise to an apprehension of bias, particularly when taken in context. Similarly, the first respondent argued that the Tribunal's description of the applicant's claim as “vague” was open to it. The first respondent argued that the applicant in fact was seeking impermissible merits review.
As to the Tribunal’s characterisation of the applicant's claim as vague, I note that the applicant gave very specific examples about PA people who had been arrested. However, the applicant gave no details about how or why anyone might form the view that he, of all the hundreds of thousands of UNP supporters in Sri Lanka, had been associated with those arrests. To that extent, the Tribunal reasonably formed the view that the applicant's claim about the arrests of PA people was vague.
The passage at page 18 of the transcript relied upon by the applicant came after the Tribunal's questioning had indicated a number of inconsistencies and difficulties with the applicant's claims. Immediately prior to the claim about the applicant being blamed for PA arrests, the Tribunal noted that the applicant had not worked for the Minister for 20 years and asked, “Why would they kill you now?” The applicant did not answer that question by explaining or clarifying a claim that had been made previously but by raising the new claim about being suspected of involvement in arrests of PA people.
In these circumstances, it was not surprising that the Tribunal formed the view that the applicant may have been seeking to bolster his case with a new claim. That is a view that the Tribunal frequently takes when claims are raised for the first time at the hearing. It is a view that can be fairly formed when a claim is raised for the first time after the Tribunal, during a hearing, has exposed the contradictions and inadequacies in an applicant's case.
In my view, it was open to the Tribunal to not accept that the applicant was merely seeking to “expand and elaborate on his written statement”. The claim about being suspected of involvement in arrests of PA people was reasonably regarded as an entirely new claim rather than as filling out the details of an existing claim. This is demonstrated by the fact that, if the Tribunal had failed to consider the claim that the applicant was alleged to have been responsible for the arrests of PA people, it would have failed to consider an integer of the claim.
The applicant took particular issue with the Tribunal saying that the applicant “intimated that he only told the Tribunal of this matter because he feared the rest of his claims may not be accepted by the Tribunal.” (Emphasis added) One of the meanings of the word, “intimated” in the Macquarie Dictionary (revised third edition) is “hinted”. In my view, it was open to the Tribunal to consider that the applicant had hinted that he had thought that his written claims would be enough to secure a protection visa. It was probably not considered to be a deliberate hint, but a hint nevertheless.
I note that the Tribunal put to the applicant at the hearing its interpretation of his claim to have been alleged to have been involved in the arrests of PA people. The Tribunal also included in a post-hearing notice under s.424A of the Act the substantive issue that the applicant had not made the claim about being suspected of being responsible for the arrests of prominent PA people until the hearing although he had had the opportunity to make that claim earlier. Both of these matters suggest that the Tribunal had not conclusively made up its mind but was seeking to elicit an explanation and was open to any explanation that the applicant might offer. This is underlined by the Tribunal saying at the conclusion of the hearing that it would, after receiving the response to the s.424A letter, “consider everything”.
In all the circumstances, I do not consider that example 1 would indicate to “a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias” that the Tribunal might not have had an impartial mind in relation to this matter.
Example 2
The second example relied upon by the applicant arises from the following passage from page 17 of the transcript:
MR KATSAMBANIS: Why would they harm you?
INTERPRETER: Can I explain to your Honour in detail?
MR KATSAMBANIS: Yes, go ahead. Why would they bother harming you? I want to know, because these are your claims. I want to know why they would harm you.
INTERPRETER: Because I am a long-time political member of the UNP. My father, mother, my grandfather, they all were supporters of the UNP, therefore I also joined the same party. After that I worked for the minister called John Amaratunghe ---
MR KATSAMBANIS: We know all of that. They haven’t killed you yet. You worked for that minister nearly 20 years ago and no-one seems to have killed you as a result. Why would they kill you now? (Emphasis added)
The applicant argued that the Tribunal's response was dismissive, flippant and sarcastic and did not do justice to the seriousness of the claims made. The applicant submitted that “a single, impatient remark speaks volumes about the attitude of the Tribunal member to the decision-making task.”
The first respondent submitted that it is well established that a single, impatient remark is not indicative of apprehended bias. I accept that submission: VFAB; Minister for Immigration & Multicultural Affairs; Ex parte AB (2000) 177 ALR 225. The first respondent also submitted that while the Tribunal could have been more gracious, it was appropriate for the Tribunal to focus the applicant's attention on the relevant issue. I also accept that submission.
In circumstances where the Tribunal accepted that the applicant had in fact been shot by a JVP gunman in 1989, it was shockingly insensitive for the Tribunal to say, “They haven't killed you yet.” Nevertheless, this statement was made well into the Tribunal hearing at a time when the applicant was simply repeating that he and his family were long time UNP supporters and he had worked for a Minister at a much earlier time. I consider that the impugned statement was an unfortunate product of impatience and a desire to focus the applicant's attention on the real issue. I do not consider that example 2 is indicative of apprehended bias.
Example 3
The third example relied on by the applicant arises from the following passage from page 14 of the transcript:
MR KATSAMBANIS: Well, that’s exactly what your statement says in paragraph 10, your original statement that you submitted with your application for protection and you dated it 10 October 2006 and signed it.
INTERPRETER: Can you please repeat that statement again to me?
MR KATSAMBANIS: In the statement that you provided with your application for protection to the department you stated in paragraph 10, “Due to this harassment and persecution, at the end of 2005 I was forced to close the business.” I will have to put that to you in writing. The difference between what you’ve told me today and what you’ve told me in that statement, I will put to you in writing and you can respond to me in writing after the hearing.
MR RAMASINGHE: Okay, not a problem.
MR KATSAMBANIS: But it’s there; it’s crystal clear, it is there. (Emphasis added)
The applicant argued that this passage demonstrated that the Tribunal was thinking aloud about the significance of the inconsistency and the procedural steps that would need to be taken before writing the decision. The applicant argued that the Tribunal may not have had a closed mind at the beginning of the hearing but that the Tribunal reached that point precipitously. The passage quoted was said to indicate that the s.424A letter was an empty gesture.
The first respondent said that the applicant had failed to acknowledge that the passage it relied upon followed a lengthy dialogue in which the Tribunal noted inconsistencies in the applicant’s account about his business and put them to the applicant. More specifically, the Tribunal noted that the applicant inconsistently told the Tribunal that his business closed down in June 2006 but in his statement dated
10 October 2006 said that “at the end of 2005, I was forced to close down the business.” At the hearing, the Tribunal asked the applicant to give an explanation for the inconsistency. The applicant denied that his written statement said that he had closed his business in December 2005.The first respondent argued that the words “it’s crystal clear” concerned the fact that it was clearly and unambiguously stated in the written statement that the applicant was forced to close down his business at the end of 2005. The first respondent argued that the Tribunal had complied with its obligation to raise at the hearing the issues on which the decision might turn.
The first respondent submitted that the reference to the need to send a s.424A notice could not be regarded as an indication that the notice itself was an empty gesture. That was said to be so, given that the Tribunal had indicated at the end of its hearing that, after receiving the response to the s.424A notice, it would consider all of the material before making its decision.
The words, “it’s there; it’s crystal clear, it is there”, in my view, concerned the fact that the statement made on 10 October 2006 stated clearly that the applicant was forced to close his business in December 2005. The Tribunal said it was crystal clear that the claim about the business being closed in December 2005 was there, because the applicant at the hearing had denied saying that in his statement.
I accept the first respondent’s submission that the applicant has focussed on the end of a lengthy discussion about the applicant’s business, and has taken the impugned words out of context.
In my view, the reference to the s.424A notice was simply the Tribunal foreshadowing that a s.424A notice would be sent and indicating that the applicant would have a further opportunity to explain the inconsistency. Especially in the context of the Tribunal saying at the end of the hearing that, after receiving the applicant’s response, the Tribunal would “consider everything”, I am unable to construe the reference to the s.424A notice as an indication that it would be an empty gesture.
All in all, I am unable to discern any basis on which the impugned passage could give rise to a reasonable apprehension of bias.
Example 4
The final example relied upon by the applicant concerned the alleged attack in 2004. More particularly, it concerned whether the alleged attackers had told the applicant to stay out of politics, as he told the Tribunal, or whether the alleged attackers had been silent on the question of politics, as appeared from a statement made by the applicant to the police. The applicant noted that there was a difference between putting inconsistencies or concerns to a witness and stating an unanswerable conclusion. The applicant argued that the Tribunal had stated an unanswerable conclusion when it said to the applicant, “You’ve changed your story, now that I’ve pointed out the difference between what you told me earlier and what is in the police statement.”
The first respondent argued that the applicant had again focussed on the end of the discussion of the point in issue and ignored the earlier part of the dialogue. The transcript demonstrated that the Tribunal was attempting to elicit as much information as possible from the applicant, and was fairly putting its concerns to the applicant.
I accept the first respondent’s submission. Immediately before the Tribunal’s statement set out at paragraph 44 above, there was a substantial exchange about the difference between the two statements made by the applicant. Immediately after the Tribunal’s allegedly unanswerable conclusion set out in paragraph 44 above, the applicant offered an explanation for the difference between his statement to the police and his statement to the Tribunal. The applicant evidently understood the “unanswerable conclusion” to be a request for an explanation. The Tribunal listened to the explanation that the applicant gave without interruption.
In these circumstances, I do not consider that the Tribunal expressed what might have appeared to an informed, fair-minded lay observer to be an unanswerable conclusion, or a basis for apprehending bias.
The four examples in combination
The applicant argued that the combination of jibes and prejudgment led to the possibility that a reasonable, informed bystander might apprehend bias on the part of the Tribunal. The first respondent argued that the process adopted by the Tribunal demonstrated its fairness. More particularly, the first respondent said that the Tribunal:
a)indicated at the outset which aspects of the applicant’s claims it accepted;
b)indicated the areas where the applicant had made inconsistent statements or statements that were otherwise of concern;
c)gave the applicant an opportunity to allay the Tribunal’s concerns and explain the inconsistencies;
d)listened to the applicant without interruption and with civility; and
e)said it would “consider everything” after receiving the applicant’s response to the s.424A letter.
With the exception mentioned in example 2, the Tribunal appears to have treated the applicant with civility and respect. The Tribunal listened to the applicant without interruption. The Tribunal, properly, raised with the applicant its concerns about his claims and pointed out various inconsistencies. Some of the Tribunal’s statements could have been expressed more tentatively or sensitively. However, I do not consider that the four matters relied on by the applicants, alone or in combination, might have given rise to a reasonable apprehension of bias, in the mind of a hypothetical, fully-informed, fair-minded, lay person.
Accordingly, the application must be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Riley FM
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