MZXTT v MIAC
[2008] FMCA 1007
•10 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXTT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1007 |
| MIGRATION – Refugee Review Tribunal – whether the Tribunal impermissibly substituted its own lay opinions for expert psychiatric and medical opinions – whether the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – whether the Tribunal’s conduct may have given rise to a reasonable apprehension of bias – application dismissed. |
| Administrative Decisions (Judicial Review) Act 1977 Migration Act 1958 (Cth), ss.424A, 425(2)(a), 91R |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Ferguson v Cole & Anor (2002) 121 FCR 402 Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 Zakinov v Gibson [1996] FCA 696 |
| Applicant: | MZXTT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 165 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 18 July 2008 |
| Date of Last Submission: | 18 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Daniel McInerney |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Richard Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 11 February 2008 and amended on
23 May 2008is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 165 of 2007
| MZXTT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Lebanon. He arrived in Australia on 4 July 2005 on a sponsored family visitor visa. While here, the applicant became engaged to an Australian woman. The applicant returned to Lebanon on 30 September 2005 and applied for a provisional spouse visa. That visa was granted and the applicant returned to Australia on 2 June 2006. The applicant married the Australian woman in a civil ceremony on 16 September 2006. The relationship broke down in October 2006.
On 9 February 2007, shortly before his provisional spouse visa was due to expire, the applicant applied for a protection visa. The applicant said that he was an Alawi Muslim who might be persecuted by the Lebanese government because they think he is “part of the Syrian region”. The applicant said that the Alawi community in Lebanon was tortured and discriminated against for the killing of a past prime minister. The applicant said that the majority of government leaders are Sunni Muslims or Christians.
The delegate of the first respondent rejected the applicant’s protection visa application primarily on the basis that the applicant had not provided any information in support of his claims that he may be suspected of being associated with the Syrian government. The delegate considered that the applicant had provided no information indicating that he had experienced any difficulties in the past or that he had been involved in political activities. The delegate considered that the applicant’s return to Lebanon in 2005 was not consistent with his claims to fear persecution.
The applicant applied for review by the Tribunal. The applicant then claimed that he had been a member of the Ba’ath Party and had carried out acts of violence and extortion in Lebanon on behalf of the Ba’ath Party. The applicant claimed that he had been attacked on several occasions as a result of his involvement with the Ba’ath Party.
The Tribunal conducted a hearing on 8 August 2007 at which the applicant was represented. The applicant and a number of other witnesses gave evidence.
On 9 August 2007, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (“the Act”) regarding certain perceived inconsistencies and deficiencies in the applicant’s evidence. The Tribunal asked the applicant to respond by 23 August 2007. The applicant sought an extension of time and was given until
1 October 2007. The applicant sought a further extension of time and was given until 25 October 2007. On 23 October 2007, the applicant lodged a statutory declaration made on 17 October 2007.
The Tribunal advised the applicant that the decision would be handed down on 15 November 2007. On 13 November 2007, the applicant lodged with the Tribunal a report from a psychiatrist dated
13 November 2007. That report contained the new claim that the applicant had been tortured over several weeks by being subjected to repeated electric shocks, physical beatings and the removal of his toenails. In view of these new claims, the Tribunal conducted a further hearing on 12 December 2007. The applicant lodged further submissions and a medical report on 19 December 2007. The Tribunal handed down its decision on 14 January 2008 affirming the decision under review.
The Tribunal’s decision
The Tribunal accepted that the applicant was an Alawi Muslim and had been a member of the Ba’ath Party in Lebanon. The Tribunal accepted that the applicant may have suffered violence in the past “in retribution for his prior violent criminal dealings with members of his community” but not in circumstances giving rise to Convention claims. The Tribunal did not accept that the applicant had been or would be targeted for the essential and significant reasons of his religion or actual or imputed political opinion. The Tribunal considered that the applicant might encounter difficulties with members of his community in Lebanon as a result of his extortion and criminal activities, but did not consider that such difficulties would be Convention-related.
The Tribunal accepted that some Alawi Muslims might be marginalised in Lebanon for their perceived support of the Syrian regime. However, the Tribunal did not accept that the applicant faced a real chance of persecution, particularly as he held business interests and had a job and property in Lebanon.
The Tribunal considered that the applicant was an unreliable witness overall. The Tribunal considered that the applicant’s return to Lebanon in 2005 was not indicative of a subjective fear of harm, especially as the applicant took his 13 year old nephew with him.
The Tribunal did not accept that the applicant had been tortured. The Tribunal considered that:
a)the applicant’s claims on this point were vague and lacked detail;
b)aspects of these claims seemed implausible;
c)the applicant did not satisfactorily explain why he was detained and tortured;
d)the applicant did not satisfactorily explain why he was eventually released; and
e)the applicant had not satisfactorily explained why he had not raised the claim of torture in his initial claims.
The Tribunal noted that the applicant only raised the claims of torture after the Tribunal had made it clear at the first hearing that any acts of revenge against the applicant for his physical assaults and extortion would not give rise to Convention grounds.
The amended application
The applicant lodged an amended application with this court on
23 May 2008. The grounds identified in the amended application were that the Tribunal:
a)rejected expert psychiatric evidence [as] to the applicant’s inability to recount his experiences coherently on the basis of its own opinion that it was not qualified to make;
b)purported to conduct a medical examination of the applicant’s feet during the hearing of the matter even though it had no medical expertise;
c)rejected expert medical evidence as to the possibility of torture on the basis of its own medical assessment of the applicant’s feet that it was not qualified to make;
d)made medical findings about the applicant’s feet which it was not qualified to make;
e)failed to consider multiple causes of harm which arose on the evidence; and
f)misconstrued the applicant’s claims by incorrectly recording the responses given by [him] during the course of the hearing on two different days such that, when considered cumulatively, these errors led the Tribunal to not consider the applicant’s claims as they were put.
Further:
a)grounds (a) to (f) were said to give rise to a reasonable apprehension that the Tribunal was biased;
b)grounds (a) to (d) and (f) were said to indicate that the Tribunal took into account irrelevant considerations;
c)grounds (a), (c) and (f) were said to indicate that the Tribunal failed to take into account relevant considerations;
d)ground (e) was said to indicate that the Tribunal failed to correctly apply the law; and
e)ground (f) was said to indicate that the Tribunal failed to correctly consider the applicant’s claims.
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 their 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 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 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 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].
Ground (a): The Tribunal rejected expert psychiatric evidence [as] to the Applicant’s inability to recount his experiences coherently on the basis of its own opinion that it was not qualified to make
The applicant provided particulars of ground (a) as follows:
Dr Chopra’s report, extracted at page 18 of the decision, set out the factors to explain why the Applicant had been reluctant to disclose details of his experiences of torture and why the Applicant was unable to provide a coherent narrative of his experiences.
The Tribunal did not accept this evidence, at page 28-29 of the decision.
The Tribunal formed the view that the Applicant was coherent and lucid and did not fail to disclose any matter, page 29 of the decision.
The Tribunal had no medical qualifications, nor had the Tribunal undertaken a psychiatric assessment of the Applicant that would enable it to form its view.
The psychiatric report dated 13 November 2007 stated that it was based on consultations with the applicant on four occasions between July and November 2007. It raised for the first time allegations that the applicant had been tortured over several weeks by repeated electric shocks, physical beatings and the removal of his toenails. It said that the applicant presented with a significant history of anxiety, depression and self harm. It said that there were several factors which explained why the applicant had previously been reluctant to disclose his past trauma. Firstly, the events aroused significant anxiety. Secondly, the applicant was keen to focus on current issues. Thirdly, the applicant felt guilty about his own past actions as a member of the Ba’ath Party.
The psychiatric report stated that the applicant’s symptoms of depression and anxiety:
… have had an impact on his attention and concentration. Furthermore, because of his own involvement in the Baath party, including intimidating opponents of the Baath party in Lebanon, he has been ambivalent about discussing the impact of his own experience of torture. This ambivalence has also affected his capacity to provide a coherent narrative account of his experiences.
As noted, this report was received two days before the Tribunal said it would hand down its decision. Instead of proceeding to hand down its decision, the Tribunal decided to conduct a second hearing, which occurred on 12 December 2007.
At pages 17 to 18 of its decision, the Tribunal set out the psychiatric report in full, and said that it had given the report significant consideration. At pages 28 to 29 of its decision under the heading “Claims and Evidence”, the Tribunal summarised some of the discussion at the second hearing arising from the psychiatric report as follows:
The Tribunal also commented that it appeared incongruent that the visa applicant’s psychiatrist Dr Chopra, could argue in his report that the visa applicant was not able to provide a coherent chronology of his claims, yet the visa applicant was comfortable enough at the first hearing to be able to admit to the Tribunal that in Lebanon he had shot people and intimidated them as part of his involvement in the Ba’ath party, material which could ultimately be adverse to his long term aim to remain in Australia, and yet he was not comfortable enough to be able to express the harm that he claims he experienced which would in fact have strengthened his claims. This did not seem plausible. The Tribunal stated that this matter went to the credibility of the visa applicant, even if it accepted that the timing of his additional claims had not been deliberately submitted just prior to handing down to gain further time.
The Tribunal also remarked that it considered that Dr Chopra’s report was somewhat contradictory. On the one hand it stated that the visa applicant’s reasoning processes were functional and that he had no “formal thought disorder” yet his ambivalence about his involvement in the Ba’ath Party “affected his capacity to provide a coherent narrative account of his experiences”. The Tribunal emphasised that the visa applicant was coherent and lucid in the previous hearing and there had been no indication that he was holding back anything.
In the findings and reasons section of the Tribunal’s reasons for decision at pages 41 to 42, the Tribunal said the following in relation to the psychiatric report:
In relation to the additional material provided to the Tribunal outside the prescribed period, including evidence provided at a later hearing held on 12 December 2007, the Tribunal has given this material consideration but finds that it does not support the visa applicant’s claims that he was tortured and beaten and given electric shocks, including having his toenails removed by specialised equipment as the visa applicant’s testimony was vague and the Tribunal found the visa applicant an unreliable witness overall.
…
Furthermore, the Tribunal found the visa applicant’s testimony at the second hearing was extremely vague. The visa applicant was unable to give precise dates about when he was detained at the border with Lebanon and Syria and nor was he able to provide any details about his captors and why they had detained him despite the Tribunal urging the visa applicant to provide concrete details about the events he claimed occurred. His statements about the false identity manufactured for him were not placed in any context and his account of there being a computer which presumably held a database of all Ba’ath Party members at the border seems implausible. The visa applicant has not provided any reasonable argument for not having provided the Tribunal with the details of the claimed episodes of torture as part of his initial set of claims. The visa applicant at the first hearing appeared to be willing to be open with the Tribunal about aspects of his past life that did not place him in a favourable light. It was only when the Tribunal had explained to the visa applicant that any attacks he might have experienced in Lebanon were acts of revenge for past crimes he had committed on various communities in Lebanon, did he raise additional claims that appeared to bolster his arguments that he had Convention-related claims. For these reasons, the Tribunal is not satisfied that the events the visa applicant claimed occurred some time “after Hariri’s death” did in fact occur.
The applicant relied on the decision of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. That was an application under the Administrative Decisions (Judicial Review) Act 1977. Burchett J overturned the decision on the ground of the statutory equivalent of Wednesbury unreasonableness[1].
[1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
In Fuduche, the applicant had applied for a special needs relative visa on the basis that his sister had a severe psychiatric condition arising from her a horrific childhood experiences. She had attempted suicide twice and was considered to be at high risk of doing so again. A psychiatrist provided a report to the effect that, if the applicant had to leave Australia, his sister’s depression would be adversely affected and she may regress and need more intensive treatment.
The delegate, whose decision was under review, formed the view that the sister would be able to cope without her brother remaining in Australia. Burchett J, who was clearly moved by the case, described the delegate’s conclusion at 523 as bewildering and “an arrogant preference for a personal speculation over the clearly stated professional opinion, based on medical findings, of the treating specialist.” At 522, Burchett J said:
Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430):
Although s 120(3) entrusts the determination … to the decision-maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner…
On the other hand, the first respondent relied on Zakinov v Gibson [1996] FCA 696, where a psychologist purported to give an opinion about whether the applicant held a conscientious objection to military service. North J considered that such an enquiry was within the ordinary fact finding skills of the Tribunal, and there was no need for the Tribunal to defer to the opinion of a psychologist.
In Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268, Drummond J explained at [18] that in a tribunal or court bound by the rules of evidence, an expert is not permitted to give evidence about the credibility of a witness, but may, if appropriately qualified, give evidence about whether the witness exhibits certain psychological or medical traits.
The applicant did not rely on in the present case on Wednesbury unreasonableness. I do not consider that ground would have been sustainable. There was a good deal of material on which the conclusions of the Tribunal were reasonably based, in the Wednesbury sense.
The applicant argued that the Tribunal failed to properly consider highly relevant evidence (namely, the psychiatric report) and instead took into account irrelevant considerations (namely, the Tribunal’s own assessment of the situation). The Tribunal’s handling of the psychiatric evidence was also said to contribute to the reasonable apprehension that the Tribunal was biased.
However, the Tribunal clearly did consider the psychiatric evidence. It set out the psychiatric report in full in its reasons for decision[2] and it convened a further oral hearing to address the matters raised in the psychiatric report. The Tribunal set out in its reasons the issues it had raised during the second hearing concerning the report. Firstly, the Tribunal said that it was incongruent that the psychiatrist could argue that the applicant could not provide a coherent chronology of claims that would strengthen his case, when he was able to admit to the Tribunal that he had intimidated and shot people in Lebanon.[3] Secondly, the Tribunal said that the applicant’s alleged inability to give a coherent narrative account was contradicted by the coherent and lucid account that the applicant had in fact given in the first hearing.[4] Moreover, the Tribunal specifically stated that it had considered the additional material.[5] In context, that includes the psychiatric report. The Tribunal also said that the applicant had not “provided any reasonable”[6] argument for not making the claims of torture earlier. This, in context, was a reference to a consideration of the psychiatric report.
[2] Page 17 of the Tribunal’s reasons for decision, CB 177.
[3] Page 28 of the Tribunal’s reasons for decision, CB 188.
[4] Page 29 of the Tribunal’s reasons for decision, CB 189.
[5] Page 41 of the Tribunal’s reasons for decision, CB 201.
[6] Page 42 of the Tribunal’s reasons for decision, CB 202.
However, the allegation is that the Tribunal did not properly consider the psychiatric evidence. Generally speaking, that is not a ground of jurisdictional error. All the Tribunal must do is apply its mind to the relevant considerations, as that concept is explained in Peko-Wallsend[7]. The Tribunal does not need to demonstrate that it has actively considered each item of evidence. It is entitled to give such weight to the evidence as it sees fit and may reject such aspects of the evidence as it sees fit.
[7] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Having said that, in general, the Tribunal should not substitute its own lay opinion for an expert opinion on a matter that is properly the subject of an expert opinion. In the present case, the psychiatric report did not simply express the proper psychiatric opinion that the applicant suffered from anxiety and depression. It purported to explain why the applicant had not previously raised the claims of torture. It presupposed that the applicant had been tortured as he claimed and it presupposed that the applicant had not previously given a coherent narrative account of his experiences.
Against that, the Tribunal was entitled to draw on its own knowledge of the entirety of the case and its own knowledge of the account that the applicant had given. The Tribunal was entitled to consider that the applicant’s claims of torture lacked detail, that his explanation of why he was tortured was inadequate and that he had sought to add a very significant aspect to his claims after it was made clear to him that his existing claims were ill founded.
The present case is quite different to Fuduche. In that case, the delegate decided that the applicant’s sister could cope with the applicant’s departure from Australia when the psychiatric evidence was directly to the contrary. The psychiatric evidence concerned a matter that was properly within the scope of psychiatric opinion.
In the present case, the psychiatric evidence purported to explain why the applicant had not previously given a coherent narrative account, and why specifically he had previously left out of his account the claim of torture. However, it was open to the Tribunal, on the basis of all the material before it, to conclude that the applicant had not made the claim of torture until the eleventh hour because the applicant had not been tortured at all.
It was also open to the Tribunal to conclude that the applicant had not “provided any reasonable argument for not having provided the Tribunal with the details of the claimed episodes of torture as part of his initial set of claims.”[8] The Tribunal was entitled to reject the psychiatrist’s opinion that the applicant had not made the claim of torture at an earlier stage because of a diminished capacity to provide a coherent narrative account of his experience. The Tribunal was entitled, on the basis of all of the evidence before it, to conclude that the applicant was not a credible witness, that he did not have a subjective fear of persecution and that he had not made the claim of torture earlier because it had not occurred.
[8] Page 42 of the Tribunal’s reason for decision, CB 202.
The applicant argued that the Tribunal had not understood that the psychiatrist had said the applicant’s ambivalence had affected his capacity to give a “coherent narrative account” as opposed to his ability to speak coherently and lucidly. During the course of the second hearing, the Tribunal referred to the applicant’s ability to speak coherently and lucidly during the first hearing. However, the reasons that that the Tribunal ultimately gave for its decision did not rely on the applicant speaking coherently and lucidly during the first hearing. Accordingly, I do not consider that any initial misunderstanding on the Tribunal’s part affected its decision.
For these reasons, I do not accept that the Tribunal took into account an irrelevant consideration, or failed to take into account a relevant consideration, in relation to the psychiatric evidence. The Tribunal’s treatment of the psychiatric evidence was also a matter that the applicant relied upon in relation to the apprehended bias ground. I consider this ground separately below.
Ground (b): The Tribunal purported to conduct a medical examination of the Applicant’s feet during the hearing of the matter even though it had no medical expertise
The applicant provided particulars of ground (b) as follows:
The purported examination occurred on 12 December 2007 at the Refugee Review Tribunal, Level 12, 460 Lonsdale Street, Melbourne
The examination was described at page 29 of the decision and is recorded on the audio record of the proceedings.
During the hearing on 12 December 2007, the Tribunal asked the applicant about the circumstances of his toenails being removed. The Tribunal then said, “Can I see?” The applicant removed his shoes and socks. The Tribunal then said:
Well, with all due respect … it seems - I'm not a doctor, that's true, but your toenails do not look any different to any other human’s toenails that I’ve seen.
The applicant sought and was given an opportunity to provide a medical report about his toenails after the second hearing. A report was prepared by a general practitioner and is dated 19 December 2007. The report said, among other things:
On each foot the big toe nails look normal. All the other four toenails on each foot are deformed and growing abnormally. He tells me these eight toe nails were removed when he was tortured in Lebanon. The appearance of them today is entirely compatible with this especially in view of the normality of the big toe nails, which were not removed.
The Tribunal discussed this evidence in the following terms under the heading, findings and reasons:
In relation to the additional material provided to the Tribunal outside the prescribed period, including evidence provided at a later hearing held on 12 December 2007, the Tribunal has given this material consideration but finds that it does not support the visa applicant’s claims that he was tortured and beaten and given electric shocks, including having his toenails removed by specialised equipment as the visa applicant’s testimony was vague and the Tribunal found the visa applicant an unreliable witness overall.
In terms of the report by Dr Rogers referring to the appearance of the toenails of the visa applicant, the Tribunal placed minimal weight on this report as it does not appear that Dr Rogers conducted any technical or other tests to determine why the toe nails were “abnormal” and “deformed”. Dr Rogers merely seems to have observed the toenails as the Tribunal had done. The Tribunal notes that Dr Rogers does not state that he accepts the visa applicant’s claims that his toenails had been pulled out in the context of episodes of torture. Nor does he go into any significant detail about how such an event might have occurred in terms of the equipment used and when in time this event might have occurred. Dr Rogers merely asserts that the “appearance of them today is entirely compatible” with what the visa applicant told him about having had is (sic) eight toe nails removed “when he was tortured in Lebanon”. (emphasis added)
The Tribunal notes that abnormality in toenails can be indicative of a number of illnesses, none of which Dr Rogers seems to have excluded completely, as he merely states that the appearance was “compatible” with the visa applicant’s version of events.[9]
[9] Page 41 of the Tribunal’s reasons for decision, CB 201.
The applicant argued that the Tribunal had again engaged in lay speculation in preference to expert evidence. However, at its highest, the medical report said that the appearance of the applicant’s toenails was “entirely compatible” with them having been removed. The medical report did not say whether the appearance of the applicant’s toenails was also compatible with any other injuries or diseases and did not say whether the most likely cause of the appearance of the applicant’s toenails was any particular injury or disease.
The medical evidence did not say that the appearance of the applicant’s toenails could only have been caused by their removal. Accordingly, there was scope for the Tribunal to rely on the common knowledge that toenails can be affected by various injuries and diseases that might give them an abnormal appearance. Moreover, the Tribunal was entitled to rely on the overall evidence in the case to reject the applicant’s claims of torture. Accordingly, it cannot be said that the Tribunal took into account irrelevant considerations.
This Tribunal’s consideration of the applicant’s toenails is also relied on to support the apprehended bias ground, which is dealt with below.
Ground (c) The Tribunal rejected expert medical evidence as to the possibility of torture on the basis of its own medical assessment of the applicant’s feet that it was not qualified to make
The applicant provided particulars of ground (c) as follows:
Dr Robert Roger’s medical report, extracted at page 30 of the decision, set out his opinion that the condition of the Applicant’s toenails was entirely compatible with an incident of torture.
The Tribunal rejected this medical evidence, at page 41 of the decision.
For the reasons given under ground (b), I reject this ground, and the claims that it indicates that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations. As the medical evidence only indicated that it was possible that the applicant had been tortured, it was open to the Tribunal, on the basis of all the material before it, to conclude that he had not been tortured.
Ground (d) The Tribunal made medical findings about the applicant’s feet which it was not qualified to make
The applicant provided particulars of ground (d) as follows:
The Tribunal concluded that the appearance of the Applicant’s toenails could have been a result of “a number of illnesses”, at page 41 of the decision.
The Tribunal did not identify these illnesses, nor was it qualified to opine on the potential illnesses that might have caused eight of the Applicant’s eight toenails to be abnormal and deformed.
For the reasons given under ground (b), I reject this ground, and the claim that it indicates that the Tribunal took into account irrelevant considerations. Additionally, the Tribunal is not bound by the rules of evidence. In the absence of definitive medical evidence, the Tribunal is entitled to draw on matters of common knowledge.
Ground (e): The Tribunal failed to consider multiple causes of harm which arose on the evidence
The applicant provided particulars of ground (e) as follows:
The Tribunal accepted that the Applicant had engaged in coercive behaviour at page 33.
The Tribunal accepted that the Applicant was a member of the Ba’ath party at page 32.
The Applicant claimed that he had engaged in the coercive activities because he was a member of Baath party.
The Applicant’s brother, whose evidence the Tribunal otherwise accepted, gave evidence of the Applicant’s coercive activities arose from his involvement in the Ba’ath party.
There was no information before Tribunal contrary to claims.
The Tribunal accepted that the Applicant may have experienced incidents of violence to him, and “come to grief on the streets” at page 33.
The Tribunal accepted that the Applicant had experienced violence caused by his prior behaviour, at page 33 and 43.
The Tribunal accepted that violence experienced by the Applicant was caused, at least in part, by the Applicant’s membership of the Ba’ath party, at page 43.
The Tribunal rejected the Applicant’s claim on the basis that the Applicant had engaged in criminal behaviour, wrongly imposing a requirement that the cause of harm must solely be a convention reason.
The applicant argued that the Tribunal accepted that the applicant might be subjected to significant physical harassment on his return to Lebanon as a consequence of his previous intimidation and extortion on behalf of the Ba’ath Party. The applicant argued further that the Tribunal had misconstrued s.91R of the Act, by proceeding on the basis that the serious harm must arise solely for a Convention reason rather than being the essential and significant reason for that harm.
However, the Tribunal set out the correct test at page 3 of its reasons for decision, saying that:
The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act. (Emphasis in original)
In its findings and reasons at page 33 of its reasons for decision, the Tribunal said that:
The Tribunal has examined the country information available in relation to the treatment of Alawites and members of the Ba’ath Party but does not accept that the applicant was or will be targeted within his community for the essential and significant reasons of his religion or actual or imputed political opinion. On the contrary, the Tribunal finds that any harm experienced by the visa applicant, (including the claimed attacks on him in April 2005, November 2005 and January 2006) resulted from violence in retribution for his prior violent criminal dealings with members of his community and is therefore not systematic and discriminatory conduct as outlined in subdivision AL of the Migration Act 1958. The Tribunal also finds that there is no real chance of persecution from the Government now or in the reasonably foreseeable future on the grounds of his religion and actual or imputed political opinion were he to return to Lebanon.
The visa applicant at hearing was clear about considering that the attacks on him were in retribution for having taken money from shop owners in coercive situations and that he was despised in his community because of this. However, the visa applicant has not been able to link his violent behaviour to any political or religious belief, and there is limited information that would suggest that he was required by the Ba’ath party to carry out acts of violence and extortion amongst the Sunni Muslim community. This leads the Tribunal to not accept that the applicant will be targeted within his community for the essential and significant reasons of his religion and actual or imputed political opinion. The Tribunal considers, therefore, that there is not a real chance of persecution in the reasonably foreseeable future were the applicant to return to Lebanon, although the Tribunal does accept that the applicant might be involved in unpleasant exchanges with neighbours (non-state actors) or others in his community whom he has previously extracted money from.
In these circumstances, it cannot be said that the Tribunal misapplied the law. In any event, the Tribunal made a separate finding that the applicant would not be denied effective state protection from people seeking personal revenge for the applicant’s past behaviour towards them.[10]
[10] Page 43 of the Tribunal’s reasons for decision, CB 203.
Additionally, I do not consider that this matter on its own gives rise to a reasonable apprehension of bias. The Tribunal demonstrated that it had an open mind to this issue by carefully and extensively considering the evidence.
Ground (f): The Tribunal misconstrued the Applicant’s claims by incorrectly recording the responses given by [him] during the course of the hearing on two different days such that, when considered cumulatively, these errors led the Tribunal to not consider the Applicant’s claims as they were put
The applicant provided particulars of ground (f) as follows:
Decision
Evidence from audio recording
1
That the Applicant had said “yes”, in response to a question as to whether he was known all over Lebanon, at page 22
The Applicant’s response was words to the effect “not on my own, with a lot of people”
2
That “two weeks after having ‘signed the contract’ she stated that she did not want him anymore, at page 24.
The Applicant’s response was words to the effect “after writing the contract” and explained that Muslim marriages have three stages, the writing of the contract was the second stage.
3
That the Applicant responded “to get money”, in response to a question as to the circumstances in which he had shot people, at page 24.
The Applicant’s response was words to the effect “they attacked me”.
4
The Tribunal stated “it seemed incongruent that the visa applicant had fears for his own life and that he would put his nephew in a situation where he could also be hurt”.
The Applicant’s response was words to the effect “[Nephew] did not accept my advice. He insisted and made a big fuss”.
5
The Tribunal decision recorded that the Applicant had responded to a question about what he and his nephew had done after an attack by saying “that they just went about their business normally”, at page 25.
The Applicant’s response (at approximately 13 minutes 45 seconds on tape two, side one) was words to the effect “people came around and separated us and we went back home”.
The first example relied on by the applicant arose in the context of the Tribunal exploring whether the applicant could relocate within Lebanon. The Tribunal did not make a relocation finding. The applicant has not otherwise explained how the slight discrepancy in the summary of the evidence made any difference to the decision or amounted to a misunderstanding of the applicant’s claims. In substance, the applicant did say that he was known throughout Lebanon, albeit with other people as well. I do not consider that the Tribunal’s statement of the evidence reflected a misconstruction of the applicant’s claims.
The applicant said that the second example indicated that the Tribunal had little regard for the genuineness of the marriage and therefore did not regard the marriage as an adequate reason for the delay in seeking the protection visa. However, the Tribunal was entitled to take that view. The applicant himself told the Tribunal that “they … only wanted money”, implying that the marriage was not genuine.[11] In any event, there is no significant difference between the summary by the Tribunal and the evidence given by the applicant.
[11] Page 24 of the Tribunal’s reasons for decision, CB 185.
In relation to the third example, the Tribunal asked the applicant at the first hearing if he had physically hurt anyone in Lebanon and he replied that he had shot two people.[12] The Tribunal then asked about the circumstances, and the applicant said, “They attacked me.” The Tribunal in its summary said that the response was, “To get money.” From this, it seems that the Tribunal misheard and misstated the oral evidence given at the first hearing.
[12] Transcript 8 August 2007, page 29 line 43.
However, the applicant said at paragraph 17 of a statutory declaration made on 17 October 2007[13] that:
Soon after joining the Baath Party I started taking money from people with the Baath Party’s backing. A group of us would take money by force. We were all members of the Baath Party. Sometimes, we had problems with the people we were taking money from, so we would use violence against them. When we were taking money from people there was conflict, a little bit, not all the time. We targeted only people who had money, people who had shops. We would take money from Sunnis and Alawites. The Baath Party was popular with Alawite people. We would never target a Baath Party member because no one can approach them. We contributed some of the money to the party, just a small amount, the rest would be for me and I shared it with the other members. People would have seen us as representing the Baath Party because we were under their protection. The government of Lebanon at that time were pro-Sunni.
[13] CB 129.
Accordingly, although the Tribunal misstated the evidence given orally during the first hearing, the Tribunal’s summary of the evidence in fact accorded with the applicant’s claims overall. As a result, it cannot be said that the misstatement of the oral evidence made any difference to the decision or resulted in a misunderstanding of the applicant’s claims.
In relation to the fourth example, the Tribunal at page 24 of its reasons for decision said:
The Tribunal asked the visa applicant what happened to him after he returned to Lebanon. He stated that he took his nephew with him as his family wanted him to go there to see the family. The Tribunal stated that it was perplexed as to why if his life was in danger he was prepared to have his nephew travel with him to Lebanon where he might also be endangered. He responded that his nephew, [name], insisted that he go with him. The Tribunal stated that it seemed incongruent that the visa applicant had fears for his own life and that he would put his nephew in a situation where he could also be hurt.
Instead of the passage set out in bold above, the transcript shows that the applicant said:
He didn’t accept my advice. He insisted and he made a big fuss, and his father couldn’t refuse to give in to his only child.
The Tribunal’s summary, that the nephew insisted on going to Lebanon, seems to me to be a reasonably accurate summary of the evidence. The Tribunal’s conclusion that it was incongruous that the applicant would take his nephew to Lebanon with him if the applicant was in real danger seems to me to be a reasonable conclusion, especially as the nephew was only 13 years old.
In relation to the fifth example, the Tribunal said at page 25 of its decision that:
The Tribunal asked whether the visa applicant’s nephew had been harmed in the incident and he responded that he was protecting his nephew and trying to take all the hits from the sticks. The Tribunal clarified that the visa applicant had in fact been physically harmed in the melee. He responded yes on his shoulder but that it had not been serious. The Tribunal asked what they did after that and he responded that they just went about their business normally. The visa applicant stated that it happened frequently in the streets and they just got used to it.
The transcript shows that instead of the passage set out in bold, the applicant said:
People came around and separated us, and then we went back home. These were common things happening all the time in the street, so we got used to them.
I do not consider that there is any significant difference between the Tribunal’s summary and the evidence given by the applicant. I do not consider that the fifth example indicates any misunderstanding of the applicant’s claims.
Nor do I consider that the five examples alone or in combination give rise to a reasonable apprehension of bias, or a failure to take into account relevant considerations or a taking into account of irrelevant considerations. The differences between the Tribunal’s summary and the applicant’s evidence are insignificant.
Apprehension of bias
In addition to the matters specified in the amended application, the applicant also said in his contentions that the apprehension of bias was squarely raised by an examination of the transcript, and by listening to the tape in relation to the episodes where the Tribunal asked the applicant to remove his shoes and socks and discussed the psychiatric evidence.
The transcript relating to the applicant’s removal of his shoes and socks reads as follows:
TRIBUNAL: Yes, but why didn’t you tell me these issues of – you’ve raised three new claims. You’ve raised that you had your toenails pulled out, electric shocks, physical beatings. You did not tell me who did this to you at the hearing. Can you address me please, [Mr Applicant].
INTERPRETER: He said the Syrians is the one who took my toenails off, and they will torture, and I worry if I went back that that’s going to happen (indistinct)
TRIBUNAL: Sir, if you pulled off your socks, there would be evidence that your toenails have been pulled out. Can I see?
INTERPRETER: Goes into the skin (indistinct)
TRIBUNAL: They look completely normal to me.
INTERPRETER: They grow.
TRIBUNAL: No, they don’t grow. If the toenails are pulled out by the root, they don’t grow again.
ADVISER: I was supposed to be (indistinct) medical, although my client (indistinct) speak to me.
TRIBUNAL: I just still prefer not to put any weight on that.
ADVISER: But if it’s critical evidence that corroborates the fact that these toenails – you know, if their density – or if it’s corroborative (indistinct)
TRIBUNAL: So this will extend – this file has been ongoing for one year.
As requested, I have listened to the compact disc recordings of the proceedings on 12 December 2007. The Tribunal’s tone in this part of the proceedings conveys a measure of annoyance and frustration. However, the Tribunal’s tone in the later parts of the proceedings shows equanimity, and, at some points, suggests concern for the applicant. The Tribunal also asked a good many questions that were designed to elicit information favourable to the applicant.
The applicant said that the Tribunal’s requirement that the applicant remove his shoes and socks during the course of the hearing and then concluding that the toenails appeared perfectly healthy would lead a fair-minded lay observer to readily infer that there was no evidence that the witness could give which would change the decision maker’s view.
However, after the hearing, the Tribunal did in fact give the applicant further time to obtain and file a medical report from a doctor. At the time when the Tribunal said that the applicant’s toenails look perfectly normal, the Tribunal did not have the medical report. Consequently, at that stage, there was no medical evidence contrary to the Tribunal’s view.
I do not consider that the Tribunal’s treatment of the medical evidence of itself would lead a fully informed fair minded lay observer to reasonably apprehend that the Tribunal may have had a closed mind. The Tribunal gave the applicant time to obtain a medical report relating to his toenails after the second hearing. The Tribunal clearly considered that report, found deficiencies in it and explained its conclusions in some detail. Those conclusions were reasonably open to the Tribunal.
It was unfortunate that the Tribunal revealed its feelings of annoyance and frustration but they did not rise to the level of preventing the applicant from fairly putting his case or suggesting that the Tribunal had a closed mind. The overall process would not have produced a reasonable apprehension of bias.
In relation to the psychiatric evidence the applicant relied on the following passage from the Spark and Cannon transcript of the proceedings:
TRIBUNAL: Well, I’m interested to hear them but what I find extraordinary is that the applicant felt so comfortable at the previous hearing to tell me a lot of the material which is extremely adverse to him, but he wasn’t comfortable enough to tell me things that would actually be of benefit to him. So I do have to question the credibility of your client.
ADVISER: You’ve got extensive medical reports which try and explain why that would be the case; why there would be a reluctance or, as Prem Chopra puts in his report, an “ambivalence” to discuss the impact of his own experiences.
TRIBUNAL: Well, I don’t accept that he can tell me that he had periods where he caused significant physical damage to other people but he couldn’t tell me that other people had damaged him. So, with all due respect to Dr Chopra, I find that very unconvincing. I mean, I would like to hear these additional claims, but you have to understand that in terms of credibility and, given that you haven’t heard the tape to see how extensively we went through everything, I don’t know how you can argue that he just couldn’t tell you.
ADVISER: I’ve never alluded to the tribunal not giving my (indistinct) I’ve never alluded to that. What I’ve said is that his claims were fully disclosed.
TRIBUNAL: Well, we had eight hours here where he told me that he had shot many people, but he couldn’t tell me that he had been hurt. Now, he would have known that that information was adverse to him, but he couldn’t tell me the information that would have been helpful to him. We had to wait to receive a 424A letter and then, not only that, just the day before handing down, I get a psychologist’s report with new information – or new claims, essentially; totally new claims.
ADVISER: Well, the first (indistinct) of the report there’s a second paragraph of the report says, “This report is based on consultations I’ve had with [the applicant] on 20 July 2007, 17 August 2007, 21 September 2007 and 2 November 2007.” Dr Chopra’s report was provided to us on 13 November. It was just a question of resources that he couldn’t get it to us any sooner and I do recall that the handing down was to be 15 November.
TRIBUNAL: Yes, that’s correct.
ADVISER: There’s no ---
TRIBUNAL: No, it’s a delay tactic, as far as I’m concerned.
ADVISER: No, it’s not a delay tactic, member. This just reflects he – over five consultations over five months, that’s when he says he’s in a position to provide a report that would assist both the tribunal and the applicant in his claims.
TRIBUNAL: But it hasn’t assisted me because Dr Chopra contradicts himself. He says that [the applicant] wasn’t coherent at the hearing. Now, Dr Chopra wasn’t at my hearing so how he can say that [the applicant] wasn’t coherent ---
ADVISER: Where does he say ---
TRIBUNAL: --- I found him extremely coherent.
ADVISER: I don’t understand where he says ---
TRIBUNAL: “His symptoms have had an impact on his attention and concentration. This ambivalence has affected his capacity to provide a coherent narrative account of his experiences.” As I say, Dr Chopra was not at my hearing to know whether [the applicant] was incoherent. I found him a very coherent and consistent witness, actually.
ADVISER: But he also refers to a “coherent narrative account of his experiences” and the preceding line says he’s been ambivalent about discussing the impact of his own experience of torture. That’s what we’re saying. We’re saying that you don’t have that information.
TRIBUNAL: I don’t have it and it’s remarkable that [the applicant] missed that critical bit of information in a very long hearing, which was very detailed, which was in no way intended to either intimidate your client or – he felt very comfortable, that he told me – as I’ve said – things that were adverse to him. So why couldn’t he tell me, when it was quite clear that I was willing to listen, to the things that had hurt him, which is why we were there that day and there [was] nothing to stop him from providing his claims on that day.
ADVISER: The only thing I can – I guess my client would be in the best position to answer that question, but I would also say that the psychological impact the (sic) Dr Chopra refers to, all I can submit is that that’s just had an impact.
TRIBUNAL: That’s illogical. He does not explain how that could be. He does not explain how your client could sit in my hearing and tell me that – or admit slowly to me that he had shot people, and then not tell me the bad things that had happened to him.
ADVISER: Again, I just rely on his ---
TRIBUNAL: I’m just telling putting you on notice that I don’t put much standing on that.
ADVISER: But, your Honour, I’ll address these matters to your client.
The unofficial transcript put forward by the applicant expressed the last few lines as follows:
TRIBUNAL: I’m just telling you, I'm putting you on notice that I don't put much value on that report. But you're right, I'll address these matters to your client.
Having listened to the CDs, the unofficial transcript is more accurate than the Spark and Cannon transcript at that point.
The Tribunal then proceeded to ask the applicant why he had not raised the new claims earlier and spent a considerable period of time asking the applicant questions about the circumstances surrounding the matters raised in the new claims. The applicant did not specifically challenge the manner in which those further questions were asked. Having listened to the CDs, it seems to me that the Tribunal initially expressed a good deal of exasperation but then proceeded to work through the material in a reasonable way and with a manner suggesting that the Tribunal was receptive to the applicant’s evidence.
Of itself, I do not consider that the Tribunal’s treatment of the psychiatric evidence could have led a fully informed lay observer to reasonably apprehend that the Tribunal may have had a closed mind. On the contrary, after the belated lodgement of the psychiatric evidence, the Tribunal convened a further oral hearing. After displaying a certain amount of irritation at the commencement of the hearing, the Tribunal then settled in to pattern of questioning that was fair and reasonable. I am not persuaded that the Tribunal’s treatment of the psychiatric evidence, at the hearing or in its reasons for decision, could have led to a reasonable apprehension of bias.
It is also necessary to consider all the matters raised by the applicant in combination to assess whether they may have given rise to a reasonable apprehension of bias. The parties asked the court to listen to particular passages from the tape of the first Tribunal hearing, if not the whole tape. I have listened to the passages that I understand to be those that most support the claim of apprehended bias.
I accept that the Tribunal did at times display an unfortunate level of exasperation. However, overall, the Tribunal questioned the applicant thoroughly and extensively and listened without interruption. Neither the applicant nor his advisers seemed to be overborne. The continued questioning, not to mention the convening of a second hearing, and the reception of further evidence after the second hearing, indicated that the Tribunal had not closed its mind. Overall, the tone of the questioning was reasonable.
I am not persuaded that any of the matters raised by the applicant, alone or in combination, would give rise to a reasonable apprehension of bias. On the contrary, notwithstanding the Tribunal's occasional irritation, it seems to me that the Tribunal persevered in dealing with a long and difficult case in a mostly reasonable manner.
The fact is that after the first hearing, the Tribunal sent the applicant a s.424A notice. The Tribunal gave the applicant a number of extensions of time to respond to that notice. The Tribunal received evidence after the deadline. In view of that evidence, the Tribunal convened a second hearing. After an unfortunate start, the Tribunal proceeded in a reasonable way to conduct that hearing in good faith and with an open mind. The Tribunal allowed the applicant to file yet more evidence after the second hearing. The Tribunal took into account all of the expert evidence. The Tribunal rejected the expert evidence on reasonable bases. Ultimately, the Tribunal reached a decision that was open on the evidence and after giving the applicant ample opportunity to supplement his case. I do not consider that the applicant was inhibited in providing information to the Tribunal. I do not consider that a fully informed fair minded lay observer might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the resolution of the case. For these reasons, the ground of apprehended bias is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 10 September 2008
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