MZYPQ v Minister for Immigration
[2012] FMCA 94
•16 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPQ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 94 |
| MIGRATION – Review of decision by Independent Merits Reviewer – offshore entry person – applicant a citizen of Sri Lanka of Tamil ethnicity – applicant claims denial of procedural fairness and apprehended bias. |
| Migration Act 1958 (Cth) |
| AZAAR v Minister for Immigration [2009] FCA 912 Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; [1985] HCA 81 Minister for Immigration and Multicultural Affairs v Khawan (2002) 210 CLR 1 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; (2004) 77 ALD 296; [2004] HCA 18 Muin v Refugee Review Tribunal (2002) 68 ALD 257; (2002) 190 ALR 601; [2002] HCA 30 MZYLR v Minister for Immigration and Citizenship [2011] FMCA 633 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 SZQFU v Minister for Immigration and Citizenship [2011] FMCA 599 SZQJH v Minister for Immigration and Citizenship [2011] FMCA 845 VEAL v Minister for Immigration [2005] HCA 72 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; (2003) 77 ALD 23; [2003] FCA 872 Webb v R (1994) 181 CLR 41; HCA 30 |
| Applicant: | MZYPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1138 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 15 December 2011 |
| Date of Last Submission: | 15 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Lowy |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the First Respondent: | Ms S. Burchell |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
THE COURT ORDERS THAT:
The application filed on 5 August 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1138 of 2011
| MZYPQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Applicant in which he seeks a declaration that the recommendation of the Second Respondent, being the Independent Protection Assessment Reviewer (“the Reviewer”), made on 8 July 2011 that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention was not made in accordance with law.
Background
The Applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia on 1 March 2010. On 2 May 2010, he made a request for a Refugee Status Assessment (“RSA”).
The Applicant claimed in a statutory declaration in support of his RSA that two of his brothers served as members of the Liberation Tigers of Tamil Eelam (“LTTE”). He claimed that he was forced to leave his home because he and his family were threatened by the Sri Lankan Army (“SLA”). In 2009 he was taken by the SLA and placed in a camp under the control of the army before being released after he paid a bribe to an army officer. He claimed he would be killed by the SLA or other associated military groups if he returned to Sri Lanka.[1]
[1] Court Book at page 48.
On 13 September 2010, the RSA officer found that the Applicant did not meet the definition of a refugee as set out in the Refugees Convention. On 30 September 2010, the Applicant applied for an Independent Merits Review.
On 12 May 2010, the Second Respondent interviewed the Applicant. At the interview, the Applicant admitted that his previous claims were not true. The Applicant claimed that he had left Sri Lanka with his family in 1990 and had been living in a refugee camp in Tamil Nadu in India since then. His father had been a famous smuggler, known as ‘Sea Pigeon’ who had smuggled goods for the LTTE. Two of his brothers had been killed in 1990 during shelling of their village. His father had died in India in 2000.
The Applicant claimed that he could not return to Sri Lanka because he had no family there and because of his father’s activities he was sure that he would be mistreated by the SLA or by one of the militias.
On 8 July 2011, the Second Respondent found that the Applicant did not meet that definition of a refugee as set out in the Convention. On
5 August 2011, the Applicant applied for a judicial review of the recommendation of the Second Respondent.
Grounds
The Applicant relies on three grounds in his application.
The first ground alleges a failure to afford the Applicant procedural fairness in that, following the interview, the Reviewer undertook searches of Google and TamilNet for the Applicant’s father and was ultimately unable to find him on the search engine. This adverse information was not put to the Applicant.
The second ground alleges that the Reviewer denied the Applicant procedural fairness as from his conduct, including what was said at the hearing, the decision was affected by apprehended bias.
The third ground alleges that in making his recommendation, the Reviewer failed to consider the availability of state protection and whether state protection would be denied for a Convention reason.
The Applicant’s Submissions
The Applicant submits that there is a duty on the decision-maker to put to the Applicant information that is adverse to his interests and is credible, relevant and significant to the decision to be made (Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; [1985] HCA 81). Information which is “credible, relevant and significant” should be understood as referring to information that cannot be dismissed from further consideration by the decision maker before making the decision (VEAL v Minister for Immigration [2005] HCA 72).
The obligation to put adverse information to the Applicant extends to country information in respect of the Independent Merits Review process (Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133).
At paragraph 26 of the Reviewer’s Statement of Reasons,[2] the Reviewer cites an article by Dr Peter Chalk which refers to ‘The Sea Pigeons’ as the Tamil Tigers’ maritime smuggling group.
[2] Court Book at page 137.
At paragraph 29,[3] the Reviewer makes the following conclusions:
As to his father’s smuggling activities, I will accept (without finding) that his father was a “sea pigeon”. How well known he was I cannot say. A search of his name in Google and in TamilNet drew a blank. Moreover, the nickname “sea pigeon” was given to the LTTE arms smugglers as a group, not to one individual.
[3] Court Book at page 137.
This specific information was never put to the Applicant and is adverse to his claims and his credit. The lack of finding any result was an adverse finding which should have been put to the Applicant.
On the second ground, the Applicant submits that the test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision (Webb v R (1994) 181 CLR 41; HCA 30).
The Applicant referred to several extracts from the transcript of the interview conducted by the Reviewer with the Applicant and the Court listened to the recordings. The first of these related to an exchange between the Reviewer and the Applicant about the funding of his trip to Australia.
The Applicant submits that this exchange and the tone of the Reviewer indicated that he did not bring an open mind to the Applicant’s claims. He was not treating it seriously and was not deciding the issue based on the facts or the credit of the Applicant but upon submissions made to him by previous applicants and this is clear from sarcasm in the tone:
Second Respondent: [laughs] Yes but most of the people I’m meeting tonight, seem to have a German uncle [laughs] – this week, seem to have a German uncle. How long has he been in Germany?[4]
[4] Applicant’s Contentions of Fact and Law filed 23 November 2011, page 8 at paragraph 31.
The Applicant’s Counsel submitted that a further example of sarcasm or a mocking tone concerned an email the Applicant had brought to the interview:
Interviewer: OK. You’ve got Google mail, have you?
Applicant: Email, yeah.
Interviewer: Yeah, Google, okay. So this was emailed to you was it?
Applicant: This is my email.
Interviewer: That’s a nice refugee camp. You didn’t need to come here to get Internet.[5]
[5] Affidavit of David Shaw sworn 23 November 2011, page 13 of Annexure DS-5 at lines 6 – 16.
In relation to the Applicant’s claim about his father, this exchange occurred:
Interviewer: Yeah, but he didn’t have a boat. How can he be a famous smuggler without a boat?
Applicant: He was doing for the LTTE and not on his own.
Interviewer: Yes, I know, but without a boat. It’s like saying I’m a famous cricketer but I’ve never used a bat. It doesn’t make sense.[6]
[6] Affidavit of David Shaw sworn 23 November 2011, page 16 of Annexure DS-5 at lines 42 – 44 & page 17 of Annexure DS-5 at lines 1 – 2.
The Applicant described these exchanges as sarcastic and scoffing. It is clear that the Reviewer does not believe the Applicant and the immediate corollary of this is a negative one upon the Applicant’s credit. Further the Reviewer, in determining the fame or infamy of the father relied upon facts outside the facts of the Review process and had a preconceived idea as to how probative a Google search might be:
Interviewer: Okay. So if I Google “Sea pigeon”, I’ll come up with all the information about your father.
Applicant: I don’t know. You can try. He’s not world famous. He was famous …
Interviewer: Google doesn’t – you don’t have to be world famous to get into Google. You google my name and you’ll come up with something so, you know, you don’t have to be famous.[7]
[7] Affidavit of David Shaw sworn 23 November 2011, page 17 of Annexure DS-5 at lines 9 – 17.
Finally, the Applicant refers to the following statement of the Reviewer concerning the issue of safety:
Interviewer: … but, you know, I’ve lived in places that are not safe. My wife is Venezuelan and Caracas is not safe. There are as many people killed in Caracas in one weekend as were killed in Jaffra last year. Now, that didn’t stop my wife and me going to visit the mother last year in Caracas because we thought we could probably go and get out without being killed which fortunately we were able to do.[8]
[8] Affidavit of David Shaw sworn 23 November 2011, page 22 of Annexure DS-5 at lines 4 – 9.
The Applicant submits that the irrelevance of the comparison aside, the Court ought to consider it as bias, in that the Reviewer has not brought an open mind to the matter and rather relied upon his own experiences in travelling to countries, different countries to Sri Lanka, still recovering from political turmoil.
On the last ground relied upon by the Applicant, it is submitted that conduct giving rise to a well-founded fear of harm at the hands of non-State actors may constitute persecution as a result of the unwillingness or inability of the state to provide effective protection (Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; (2004) 77 ALD 296; [2004] HCA 18). The Applicant referred the Court to the summary of applicable principles given by Finn J in AZAAR v Minister for Immigration [2009] FCA 912 at [6] to [10].
Whether a person is exposed to a real risk of harm for a Convention reason as a result of the conduct of non-State actors requires consideration of the motivation of both the perpetrator of the harm and the reasons for the absence of reasonable State protection (Minister for Immigration and Multicultural Affairs v Khawan (2002) 210 CLR 1).
The Applicant in this case may be at risk from non-State actors. The current post-war government is ambivalent or unable to provide protection for its citizens from oppression by non-State actors. This contention is supported by country information at page 129 of the Court Book. The decision arrived at by the Reviewer is contrary to this and it does not seem to have been dealt with by the Reviewer.
The First Respondent’s Submissions
The First Respondent accepts that procedural fairness requires in the ordinary course that a person be given the opportunity to deal with adverse information that is credible, relevant and significant to the decision.[9]
[9] VEAL v Minister for Immigration [2005] HCA 72; Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; [1985] HCA 81.
The First Respondent submits that the article by Peter Chalk was not used adversely against the Applicant; it was not decisive of the ultimate outcome; and it was not a critical factor on which the decision was likely to turn. On a fair reading of the Reviewer’s decision, the decisive outcome was in relation to the flux of time that had occurred since the claims were said to have arisen.
The Reviewer found that the Applicant’s father was a ‘Sea Pigeon’.
He died of natural causes some 11 years prior. The claimant had not lived in Sri Lanka for 21 years. The Reviewer considered that whatever the father’s activities were, they would not affect the Applicant if he returned to Sri Lanka. This was the critical finding, not whether the Applicant’s father had been a Sea Pigeon. The First Respondent submitted that there is accordingly no adverse finding or use of the information.
The First Respondent took the Court to relevant authorities (Muin v Refugee Review Tribunal (2002) 68 ALD 257; (2002) 190 ALR 601; [2002] HCA 30) and the application of the relevant principles in recent cases concerning decisions made by Independent Merits Reviewers. In Darabi v Minister for Immigration and Citizenship [2011] FMCA 371, Nicholls FM noted that procedural fairness did not require that the Applicant have the opportunity to comment on all adverse information but that the obligation only arose in relation to critical issues on which the decision would turn.[10]
[10] Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at paragraphs 92 & 93.
It is for the Applicant to show how the material cited is adverse and significant to the Reviewer’s findings regarding the Applicant’s claims (SZQFU v Minister for Immigration and Citizenship [2011] FMCA 599 at [46]). Natural justice does not require the Reviewer to put material to the Applicant which is not adverse to his claims (SZQJH v Minister for Immigration and Citizenship [2011] FMCA 845 at [28]).
In relation to ground two, the First Respondent submitted that on a fair reading of the transcript the Reviewer’s style was actively conversational. He makes comments such as the one in relation to the Applicant’s birthday “you’re two months older than my daughter”[11] and later he notes that his dad was a doctor and he had a patient who was a fisherman who took him fishing and he was the only one who caught any fish.
[11] Affidavit of David Shaw sworn 23 November 2011, page 3 of Annexure DS-5 at lines 12 – 13.
The First Respondent submits that by no means does it reach the threshold of apprehended bias set out in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; (2003) 77 ALD 23; [2003] FCA 872 (“VFAB”), by Kenny J at [25] to [27].
What the Court needs to determine is whether or not the particular circumstances in this case go beyond the proper standards of conformity in conducting a hearing. In VFAB, Kenny J describes how the Tribunal member conducted herself from the very beginning noting that from the outset the member was belligerent in style. She sets out passages which she found indicated a hostile attitude by the member and the tone indicated positive disbelief in relation to his claims. Her Honour refers to the aggressive and sometimes unfair style of questioning, her adverse commentary on his evidence, talking over his answers and interrupting him and her repeated expression of disbelief in relation to his account, in tone of voice, innuendo and expressed comments.
At paragraph 81, her Honour notes:
Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re 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 (1990) 90 NSWLR 263 at 279-80, 283.
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.
and at paragraph 82 concludes:
… 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.
Even if the Court is of the view that the Reviewer, in this case, was sarcastic at times or mocking or rude that in itself is not enough. The current case is nowhere near the threshold set in VFAB. The commentary is in relation to matters that do not go to claims of persecution and in this case the Reviewer did accept the main claim that the Applicant’s father was a ‘Sea Pigeon’.
In relation to the final ground raised, the First Respondent submits that the only claim which the Reviewer is required to consider are claims put forward by the Applicant (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802). It is submitted that the Applicant did not make a claim that the State would withhold protection from him for a Convention reason. Looking at the material before the Reviewer, it was not sufficiently raised on that material.
In his original statutory declaration the Applicant claimed that “[t]he authorities are the ones looking for me. They are the ones who have identified me and wish to harm me”.[12]
[12] Court Book at page 49.
This was repeated in written submissions:
[The Applicant] does not believe that the Sri Lankan forces can protect him, as he believes they are the ones who will harm him if he returns.[13]
[13] Court Book at page 98.
The First Respondent distinguished this case from the one in MZYLR v Minister for Immigration and Citizenship [2011] FMCA 633, where there was a specific claim that the police failed to protect by enforcing laws where Hazara Shias were victims of crime in the context where there was a lot of violence and robberies around the home district of the Applicant.
Conclusions
The Applicant in this case made an initial claim for refugee status which was subsequently withdrawn. The substance of his eventual claim is essentially contained in the transcript of interview with the Reviewer which is summarised at pages 125-126 of the Court Book and contained in an attachment to the affidavit of David Shaw. During the course of the interview the Applicant made certain claims about his father:
Applicant: Okay. He will – sometimes he do fishing but mostly he travelled to India. He was a smuggler transporting some items from India. He transport items to LTTE.
Interviewer: Okay. So he’d smuggle for anybody?
Applicant: He was smuggling for LTTE and he goes two or three times per month to do smuggling.
Interviewer: What sort of boat did he have?
Applicant: He didn’t have a boat with him, but will take him with them to do smuggling.
Interviewer: Take what? How did he smuggle if he didn’t have a boat?
Applicant: People take him with them.
Interviewer: It sounds to me as though he wasn’t actually doing the smuggling. He was just one of their helpers in the smuggling operation.
Applicant: He had experience working for them for long time so he was the main person. That’s why they take him with them.
Interviewer: Okay. You were only a child at that time so perhaps there were thing you didn’t know about.
Applicant: Yeah, I don’t know what they smuggle.
Interviewer: Yeah, or how. You never went with them?
Applicant: No.[14]
and further at page 16 and 17 of the transcript:
[14] Affidavit of David Shaw sworn 23 November 2011, page 8 of Annexure DS-5 at lines 5 – 36.
Applicant: Yeah, because my father was working with the LTTE and the Sri Lankan army was searching him and then initially he went first to India.
Interviewer: Yeah.
Applicant: Then my mother face some problems by the Sri Lankan army, then she decided to go to India. He was very – my father was very famous in LTTE. They call him by nickname called Sea Pigeon and he was very famous in LTTE.
Interviewer: Sea Pigeon – why pigeon?
Applicant: I don’t know for the reason but they call him Sea Pigeon. I think he was the main person doing this sea route smuggling.
Interviewer: Yeah, but he didn’t have a boat. How can he be a famous smuggler without a boat?
Applicant: He was doing for LTTE and not on his own.
Interviewer: Yes, I know, but without a boat. It’s like saying I’m a famous cricketer but I’ve never used a bat. It doesn’t make sense.
Applicant: To do this kind of smuggling they need a bit (sic) boat and we were not wealthy enough to buy such kind of boat. We had a very small boat with us just for fishing. For this smuggling they provided a big boat to him.
Interviewer: Okay. So if I Google “Sea Pigeon”, I’ll come up with all the information about your father.
Applicant: I don’t know. You can try. He’s not world famous. He was famous - - -
Interviewer: Google doesn’t – you don’t have to be world famous to get into Google. You Google my name and you’ll come up with something so, you know, you don’t have to be famous.
Applicant: Yeah, okay.[15]
[15] Affidavit of David Shaw sworn 23 November 2011, page 16 of Annexure DS-5 at line 25 – page 17 of Annexure DS-5 at line 19.
Following the interview, the Reviewer conducted a Google search of both the term ‘Sea Pigeon’ and the Applicant’s father’s name. The term ‘Sea Pigeon’ revealed an article in ‘Strategic Insights’ by Dr Peter Chalk which refers to the ‘Sea Pigeons’ as the Tamil Tigers’ maritime smuggling group. The search “drew a blank” on the Applicant’s father’s name.[16]
[16] First Respondent’s Outline of Submissions filed 7 December 2011, page 5 at paragraph 19.
The Reviewer concluded:
As to his father’s smuggling activities, I will accept (without finding) that his father was a ‘sea pigeon’. How well known he was I cannot say.[17]
[17] Court Book, page 137 at paragraph 29.
In my view, neither the outcome of the Google (and TamilNet) searches nor the Reviewer’s conclusions from those searches could be described as adverse to the Applicant. Primarily this is because the conclusion that the Applicant would not face persecution if he were to return to Sri Lanka was based on the Reviewer’s assessment that the activities, whatever they were, over 21 years ago of the Applicant’s father, who had been dead for 11 years and which occurred when the Applicant was a child, would not give rise to any real chance that he would be imputed with association with the LTTE.
The obligation to put to the Applicant information that is adverse to his interests does not extend to information which is not critical to the decision-making process. Further the information must in some way be ‘adverse’ to the Applicant. In this case, the only conclusion reached by the Reviewer from his searches was that the nickname ‘Sea Pigeon’ was given to LTTE smugglers as a group and not to his father as an individual. It did not cause the Reviewer to reject the Applicant’s claim that his father was a ‘Sea Pigeon’ or cause him to make adverse findings about the Applicant’s credibility.
I am not satisfied that the Reviewer was obliged to put to the Applicant the information obtained from his search and therefore I reject ground one of the application.
Was the Reviewer’s behaviour such that a fair-minded observer might reasonably apprehend that he did not bring an impartial mind to resolution of the question to be decided?
The approach of the Court to determining that issue is set out in the decision of Kenny J in VFAB at paragraphs 25 to 27:
[25]The test for apprehended bias in relation to curial proceedings is well-settled. The test 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: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex part H, at 427. Further, their Honours posited, at 434-5, that:
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.
[26]As in the present case, Ex parte H concerned the Refugee Review Tribunal. The Court held that, in the circumstances, having regard to the transcript of the hearing before the Tribunal, "a fair-minded lay observer or a properly informed lay person" might infer that there was nothing that the prosecutor could say or do "to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa": see Ex parte H, at 435 and compare Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at 71 per McHugh and Gummow JJ. In so holding, the Court referred to "the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events": see Ex parte H, at 435.
[27]In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at 435:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question … .
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.
The fact that the threshold is not a low one can be gauged from the comments of her Honour at paragraph [81] previously quoted:
Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re 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 (1990) 90 NSWLR 263 at 279-80, 283.
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.
I have no doubt that the Reviewer in this case showed sarcasm towards the Applicant and spoke in a mocking and disparaging way at times during the interview. I refer in particular to the comments about the Applicant’s uncle in Germany, his access to the Internet in the refugee camp in India and his questioning of how the Applicant’s father would be a famous smuggler without a boat.
I also found that the Reviewer’s references to himself and his family, which the First Respondent described as a ‘conversational’ approach to border on unprofessional, particularly with reference to his comments about his holiday in Caracas.
Did the conduct constitute disqualifying bias? I do not consider, reading the transcript as a whole, that it went that far. The fact that the Reviewer was prepared to accept that the Applicant’s father was a ‘Sea Pigeon’, despite his rather mocking questioning of the Applicant on this subject, shows that he was able to bring an open mind to the determination of what was a critical issue in the Applicant’s claim.
I therefore also reject the second ground of the application.
There is no doubt that the Reviewer is obliged to consider any claim put forward by the Applicant or any claim which can reasonably be seen to arise from the material put by the Applicant (Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 at [90]).
The First Respondent referred to the Applicant’s initial statutory declaration and submissions made on his behalf. These claims, however, were expressly abandoned by the Applicant prior to the interview with the Reviewer. It is therefore only possible to discern the nature of his claims from what was said in the interview.
The Applicant makes only two references to non-State actors in the interview. The first of these is at page 17 of the interview transcript:
Interviewer: Yeah, but, I mean, look, even if the army was looking for your father, that was an awfully long time ago. I mean, the people who were looking for your father have all retired. They’re all old men.
Applicant: The paramilitary group – they were operating with the Sri Lankan army or EPRLF or EPDP. They are still in our area. The people – the neighbours know that who was supporting to LTTE, who are working with LTTE.[18]
and the second is at page 20 of the interview transcript:
Interviewer: If you say the people in the village that your family lived in all knew about your father’s activities, you don’t have to go back there. You haven’t lived there since you were a boy. You could go presumably somewhere else, so where your wife comes from, for example.
Applicant: Even in my wife’s place also it’s an island. The (indistinct) or the paramilitary group and the army are present there and even the paramilitary group is mainly controlling the island.
Interviewer: Well, I don’t think any paramilitary groups are controlling or anything at the moment.[19]
[18] Affidavit of David Shaw sworn 23 November 2011, page 17 of Annexure DS-5 at lines 21– 28.
[19] Affidavit of David Shaw sworn 23 November 2011, page 20 of Annexure DS-5 at lines 34 – 44.
I am unable to see how in these exchanges there is implicit a claim that the Applicant will suffer harm at the hands of non-State actors should he return to Sri Lanka as a result of the unwillingness or inability of the State to provide effective protection. Further, the conclusion of the Reviewer that there was:
not a real chance that he would be imputed with association with the LTTE or that, for that reason or for any other Convention reason, he would be persecuted in Sri Lanka should he return there,[20]
suggests that the Reviewer was of the view that the Applicant was not at any risk from non-State actors.
[20] Court Book page 137, page 138 at paragraph 30.
I am therefore not satisfied that the Reviewer failed to consider a claim raised by the Applicant that he was exposed to a real risk for a Convention reason as a result of the unwillingness or inability of the government to protect him from non-State actors.
For the above reasons, the application in this matter is dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 16 February 2012
0
21
1