MZYSQ v Minister for Immigration
[2012] FMCA 661
•31 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYSQ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 661 |
| MIGRATION – Refugee Review Tribunal – allegation of reasonable apprehension of bias. |
| Migration Act 1958, ss.91R(3), 424A, 425(2)(a) |
| Ferguson v Cole & Anor (2002) 121 FCR 402; (2002) 76 ALD 399; [2002] FCA 1411 IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17 NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; (2003) 77 ALD 23; [2003] FCA 872 |
| Applicant: | MZYSQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1695 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 28 June 2012 |
| Date of last submission: | 6 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Andrew Flower |
| Solicitors for the Applicant: | There were no solicitors on the record for the applicant |
| Counsel for the First Respondent: | E S Holt |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The decision of the Refugee Review Tribunal handed down on
28 October 2011 is set aside.
The matter is remitted to the Refugee Review Tribunal for determination according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1695 of 2011
| MZYSQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision not to grant the applicant a protection visa.
The applicant is a citizen of Pakistan. He arrived in Australia on 5 July 2006 on a student visa. His subsequent student visa application was refused and the applicant was taken into immigration detention. He applied for a protection visa the following day, on 30 September 2010.
The applicant’s claims
The applicant’s initial claims consisted primarily of some emails from his family members, which suggested that:
a)the applicant had failed them in some way;
b)his brother required the repayment of some money; and
c)the applicant will be punished for his actions.
The applicant’s claims before the delegate were summarised in the Tribunal’s reasons for decision as follows:
… the applicant fears persecution in Pakistan from the state and the Taliban because of his religious beliefs, that is being of the Ahmadiyya faith and his conversion to this faith while living in Australia, and his political opinion against Islamic fundamentalism. …
… Another claim was that the applicant faced persecution in Pakistan for reason of his membership of a particular social group comprising western educated people who possess highly valued skills and are likely to be targets of fundamentalist forces like the Taliban.
The delegate considered that the applicant’s claims lacked credibility and refused to grant the applicant a protection visa.
In a statutory declaration filed with the Tribunal, the applicant summarised his claims as follows:
1.I was born on 24 January 1987 in Faisalabad in Pakistan. I was born into a Sunni Muslim family but I converted to the Ahmadi Muslim faith in around March 2010. I make this statement in support of my application for a protection visa.
2.I am applying for protection because, as an Ahmadi, I cannot freely practise my religion in Pakistan. In Pakistan, I am at constant risk of serious physical harm and I might be killed because of my Ahmadi religion, because I am regarded by non-Ahmadi Muslims as having rejected Islam, and because of my religious views against certain important beliefs of Sunni Islam.
The proceedings before the Tribunal
The Tribunal conducted a hearing at which the applicant appeared with the assistance of an adviser. After the hearing, the Tribunal wrote to the Ahmadiyya Muslim Association of Australia seeking verification of the applicant’s claim about having lodged with that association a declaration of initiation and the applicant’s claim to be a genuine convert. The association replied, saying that:
a)the applicant had never lodged a declaration of initiation with the association;
b)the declaration of initiation provided by the applicant to the Tribunal was not genuine;
c)his conversion was not genuine; and
d)the applicant had misled the author of the letter about his immigration status and employment status.
The Tribunal invited the applicant to comment about these matters in a letter sent pursuant to s.424A of the Migration Act 1958 (“the Act”). The applicant’s adviser responded in writing and enclosed a letter from the applicant to the Ahmadiyya Muslim Association of Australia in which he said:
… Please accept my letter of apology and give me a chance to express my self in [an] honest way which I have not done before.
…
… my faith is … flawless and pure … I should have not lied to you about my self … .
Subsequently, the Tribunal was reconstituted. The reconstituted Tribunal conducted a second hearing, which the applicant attended with his adviser. Following the second hearing, the Tribunal sent the applicant a 26 page summary of his claims and evidence. The Tribunal invited a response.
The applicant’s adviser responded in writing, asking that the Tribunal be reconstituted on the grounds of a reasonable apprehension of bias. The letter said, among other things:
· The Tribunal Member’s demeanor (sic), facial expressions and tone during the hearing
At times during the hearing the Member’s questioning was aggressive, adversarial and of an intimidating nature. In addition, the Member’s demeanour at times included inappropriate and unnecessary laughter, which gave the impression of incredulity or disbelief towards the applicant’s evidence. Further, the applicant instructs that he felt uncomfortable to freely provide evidence, following the Member’s abrupt comment the applicant should not use the phrase, “To be honest”. The Member’s justification for telling the applicant to not use this phrase was as follows:
Member: No, stop saying “To be honest”. I know it’s just a manner of speaking but you need to be honest all the time [Member laughing during this statement]. I know it’s just a little figure of speech. I know, but in the circumstances it’s probably better if you can not say it [Member laughing during this statement] given that we’ve had all these credibility problems that have already been put to you. So anyway I know it’s a figure of speech and it’s hard to stop so keep going.
We acknowledge that while the Member subsequently apologised for having told the applicant to not use the phrase, “To be honest”, the damage to the applicant’s ability to freely provide testimony had already been done. We submit a reasonable bystander observing the Member’s behaviour would apprehend the Member might have disbelieved our client from the outset and set her mind against the applicant, and consequently may not genuinely consider his claims with an impartial mind.
On at least two occasions – the applicant stopped himself while giving evidence and explained he was trying to avoid use of the phrase, “To be honest”. The applicant instructs that he felt “uncomfortable” and “intimidated” by the Member’s facial expressions, tone and demeanour. In our submission, the Member’s conduct was a serious impediment to the applicant being able to fully and properly give testimony during the hearing.
We further submit that the Member’s decision to focus on obtaining evidence from the applicant regarding his fear of harm on account of his membership of his family, his liberal views and his Western education, rather than his core claim for protection, which was his conversion to Ahmadiyyat, suggests that the Member had already formed a judgment from the outset that applicant was not a genuine convert to Ahmadiyyat. We submit that this approach by the Member to fragment the testimony taken from the applicant hindered the ability of the applicant to fully provide evidence of his fears of harm in Pakistan.
The Tribunal declined to reconstitute itself. The Tribunal said, at paragraph 117 of its reasons:
I considered this carefully and reflected on the hearing I had conducted. I regretted asking the applicant not to say ‘to be honest’ and had said so at the hearing, as the applicant’s representative acknowledged in her submission. The applicant did occasionally stumble on the remark when talking with the Tribunal but the hearing ran for some three hours and I had explored all of the aspects of his claims. He wanted to talk more about his religious beliefs than he had done in response to my questions and he said so after conferring with his representative during an adjournment. I was happy to spend more time on that matter and to listen to what he said. My remark about him being locked up since September was in the context of exploring the extent of his religious practice after his claimed conversion in March 2010, reasonable to explore against the background of the evidence before me. It was not my observation that the applicant’s capacity to give evidence at the hearing before me was constrained in a material way.
The Tribunal invited further submissions in response to the 26 page summary, which the applicant’s adviser provided.
The Tribunal’s findings and reasons
The Tribunal did not accept that the applicant had converted to Ahmadiyya. The Tribunal considered that the applicant had undertaken contact with Ahmadis in Australia for the purpose of strengthening his claims for refugee status. The Tribunal disregarded that conduct pursuant to s.91R(3) of the Act. The Tribunal considered that the applicant did not face persecution in Pakistan by reason of his conversion to the Ahmadi faith because he had not in fact converted to the Ahmadi faith and would not follow that religion if he were to return to Pakistan.
The Tribunal considered that the applicant would not face persecution in Pakistan by reason of any combination of:
a)his liberal views and questioning of the Sunni faith;
b)his conflict with his family; and
c)his western education.
The Tribunal said that it did not consider the applicant’s delay in making his protection visa application to be a factor in rejecting his claims. The Tribunal concluded that the applicant did not face a real chance of persecution.
The applicant’s affidavit
The applicant swore an affidavit on 1 December 2011 in support of his application. It was not expressly relied upon at the hearing before this court. Consequently, I do not take it into account.
Grounds of review
The application filed on 1 December 2011 and amended on
30 April 2012 had six grounds of review. At the hearing before this court, the fourth, fifth and sixth grounds were abandoned. The first, second and third grounds of review essentially alleged that the reconstituted Tribunal’s conduct of the second hearing gave rise to a reasonable apprehension of bias. The surviving grounds in the amended application are as follows:
1.The decision is affected by the apprehended bias of the Member constituting the Tribunal.
2.A fair minded lay person could properly come to the view that the Member constituting the Tribunal by her conduct on 1 August 2011:
(a)did not bring an open mind to her task of assessing the Applicant’s application;
(b)had pre-judged the Applicant’s claim prior to the hearing on 1 August 2011, particularly his claim for protection based upon his conversion to the Ahmadiyya faith; and
(c)had pre-judged the Applicant’s claim by reason of the fact that there was no evidence that the Applicant as witness could have given which would have changed her view.
3.A fair minded lay observer would have come to the view set out in paragraph 2 above by reason of the following conduct of the Member constituting the Tribunal:
(a)her assertion at the outset of the hearing that she did not believe the Applicant’s evidence because he was using the phrase “to be honest”;
(b) her general sarcastic and contemptuous demeanour towards the Applicant including aggressive questioning and inappropriate and unnecessary laughter; and
(c)her dismissiveness of evidence relating to the Applicant’s detention by observing that he had “only been locked up since September last year”.
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 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]:
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.
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 alone are 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 [(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.
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 probably allow the claim on the papers and 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:
[68]Before the hearing entirely ended, the Member did, however, apologise for "upsetting" the applicant's representatives at the commencement of the hearing. She also sought to explain her conduct of the hearing, observing that she had acted "out of fairness" to the applicant. In another case, statements of this kind might well allay any disquiet about a Tribunal's approach. It would not have done so in this case, because the difficulty with the hearing did not lie in the fact that the Member raised with the applicant matters adverse to him. Rather, the difficulty lay in the way she raised such matters with him from the outset of the hearing until its close - the aggressive and sometimes unfair style of her questioning, her adverse commentary on his evidence, her "talking over" his answers and interrupting him, and her repeated expression of disbelief in him and his account (in tone of voice, by innuendo and in express statements).
In determining a case of apprehended bias, the court may look not only to the transcript and tape of the hearing but also to the Tribunal's reasons for decision: Ferguson v Cole & Anor (2002) 121 FCR 402 at [49].
In addition to the above, the first respondent said in written submissions, which the applicant adopted, the following about the test for apprehended bias:
5.The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided.[2] Whether a decision-maker “might” not bring an impartial mind to the resolution of a question “is one of possibility (real and not remote), not probability”.[3] Nonetheless, the test will not be satisfied “by a mere lack of nicety”: it will only be satisfied where it is “firmly established” that such apprehension might be engendered;[4] the test should be applied “realistically, and not so that it may be lightly satisfied”.[5]
[2] Webb v R (1994) 181 CLR 41 at 70-71; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90-92; Ebner v Official Trustee (2000) 205 CLR 337 at 344-345 [6]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-35 at [27]-[32]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14].
[3] Ebner v Official Trustee (2000) 205 CLR 337 at 345 [7].
[4] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553. See also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 (Gaudron and McHugh JJ).
[5] David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 510 at [131].
6.In Ebner v Official Trustee, the High Court explained that the application of the principle requires two steps; first, the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits; and second, the articulation of a logical connection between that matter and the feared deviation from the course of deciding the case on its merits.[6] Thus, the significance of the facts and circumstances from which it is suggested that an apprehension of bias might arise must be assessed by reference to the question or questions that the decision-maker is required to decide.
[6] (2000) 205 CLR 337 at 345 [8].
7.As a Full Court of the Federal Court held in Re Refugee Review Tribunal; Ex parte H, the nature of the decision-maker (in this case, non-curial) and the decision-making process (in this case, inquisitorial) must be taken into account.[7] A Full Court of the Federal Court considered these issues in relation to the Tribunal in NADH v Minister for Immigration and Multicultural and Indigenous Affairs:
[7] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 435 at [29]. See also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90; Ebner v Official Trustee (2000) 205 CLR 337 343-344; Minister for Jia Legeng (2001) 205 CLR 507 at 563-564; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at 268-269 [18].
The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here 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.
8.Thus, in the present case – especially given that credibility was in issue – the Tribunal was entitled to “vigorously” test the Applicant’s evidence.[8] Moreover, the Tribunal’s duty to afford the Applicant procedural fairness required that the Applicant be confronted with matters that bear adversely on his credit on which brought his account into question. The hypothetical observer is aware of this.[9] In this context, there were positive virtues to the Tribunal exposing her doubts about the Applicant’s evidence, provided that she did nothing to indicate that her opinion was final.[10]
9.The Applicant has identified no particular interest, affection, enmity or prejudice on behalf of the Tribunal towards him. The criticism of lack of impartiality is one which amounts to a complaint of an apprehension of predisposition, tendency or propensity towards a given result based on certain conduct of the member constituting the Tribunal.[11]
10.Thus, in the present case, the issue is whether the Tribunal member’s conduct would give rise to a reasonable apprehension that the Tribunal would not hear the Applicant fairly. It is not to the point that Tribunal member’s conduct may suggest that the she had an inclination, even a firm inclination, to decide an issue in a particular way.[12] That is to say, the underlying requirement is that the Tribunal have an open mind, not that she must have an empty mind.[13]
11.The hypothetical observer will not consider the conduct that is claimed to support a claim of bias in isolation, but will instead base their opinion “on a fair assessment of [the decision-maker’s] conduct in the context of the whole of the [process]”.[14] And he or she is also credited with understanding that decision-makers have human frailties, which will occasionally manifest in intemperate language without giving rise to a reasonable apprehension of bias.[15] In particular, there are many cases in which decision-makers have strongly expressed exasperation with, or disbelief of, persons giving evidence – including by the use of sarcasm – without such conduct giving rise to a reasonable apprehension of bias.[16] Thus, in Galea v Galea, Kirby A-CJ (as his Honour then was) said:[17]
A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. … [T]he right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant's prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas.
12.Moreover, the hypothetical observer would not have “a propensity to draw the most sinister implications from every ruling or adopt the least favourable interpretation of every … comment”; rather, “[i]t is more likely that a benign implication or interpretation would be adopted”.[18] This is because the hypothetical observer is a “reasonable member of the public”, who is “neither complacent nor unduly sensitive or suspicious”.[19]
[8]Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 435 at [30].
[9]See, e.g., Re Doogan; Ex parte Lucas-Smith and Others (2005) 193 FLR 239 at 250 [46].
[10]See, e.g., Vakuata v Kelly (1989) 167 CLR 568 at 571; Galea v Galea (1990) 19 NSWLR 263 at 278-279; Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397; Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288 at [60]; David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 511 [132]; Johnson v Johnson (2000) 201 CLR 488 at 493 [13].
[11]NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at 268 [16]; Minister for Jia Legeng (2001) 205 CLR 507 at 563-564 [183].
[12]See, e.g., IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at 175 [165].
[13]See, e.g., SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45, citing The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 533 [72].
[14]See, e.g., Michael v Western Australia [2007] WASCA 100 at [61], citing Galea v Galea (1990) 19 NSWLR 263 at 279.
[15]See, e.g., IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at 183-184.
[16]See, e.g., IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; Anderson v National Australia Bank [2007] VSCA 172 at –[92]-[93].
[17]Galea v Galea (1990) 19 NSWLR 263 at 279.
[18]Re Doogan; Ex parte Lucas-Smith and Others (2005) 193 FLR 239 at 257 [78].
[19]Johnson v Johnson (2000) 201 CLR 488 at 508 [53].
A point of particular relevance in this case is that a reasonable apprehension of bias is not established by the Tribunal indicating that it has a firm inclination to decide an issue in a particular way. The authority cited by the first respondent for that proposition is IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151. Doyle CJ, with whom Prior and Mullighan JJ agreed, said at [165]:
To the extent that in the present case the complaint is one of prejudgment, it is important to understand that the issue is whether the judge is prepared to hear the parties fairly, and not whether the judge has an inclination, and even a firm inclination, to decide a point in a particular way. It is particularly important to bear this in mind in relation to issues that arise in the course of a long case. It is not surprising that, in such a case, a judge might begin to hold, and to indicate, an increasingly firm view on particular points. In a long case the same issue may arise from time to time, or the one issue may be debated from time to time between the judge and counsel. It is to be expected that over time a judge may begin to hold very firm views on particular points, and there is nothing wrong in that, as long as the judge is always prepared to give the parties a proper hearing. And what is involved in that may also depend upon the circumstances. There is no reason why a judge should permit the same point, if it truly is the same point, to be re-agitated at any length. …
I also refer to the following passage from the judgment of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100:
A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry:
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100;
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Re Lusink; Ex parte Shaw. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. (Footnotes omitted) [emphases added].The first respondent, by way of summary, submitted that the Tribunal, during the course of the hearing, was required to have an open mind, not an empty mind: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71].
Starting point
The starting point in considering whether the Tribunal’s conduct during the hearing of this matter could have given rise to a reasonable apprehension of bias is that the Tribunal only holds a hearing if it is not satisfied on the papers that an applicant has a well founded fear of persecution for a Convention reason. Everyone is taken to know, when the hearing commences, that the Tribunal is not satisfied of the relevant matters.
Where the Tribunal says, during the course of a hearing, as it did in this case, that it is not satisfied of a certain matter, that may simply mean that nothing that has been said to that point has caused the Tribunal to shift its preliminary view. Such a comment during a hearing is not a finding. Nor is it necessarily an indication that that the Tribunal has formed a fixed and immutable view on a particular matter. Something more has to be shown to establish a reasonable apprehension of bias.
It is for an applicant to make out his case. The Tribunal has no obligation to make out the applicant’s case for him. That means that the Tribunal is under no obligation to ask the applicant questions to bolster his case or fill gaps in his evidence.
No decision maker, whether judicial or administrative, is obliged to permit a witness to repeat his evidence. If a witness is repeating himself, a decision maker is entitled to ask the witness to move on to the next point. That is so whether the first iteration of the evidence is oral or written.
The relevant passages
The applicant identified certain passages of the proceedings before the Tribunal that were said to give rise to a reasonable apprehension of bias. The submissions and the relevant passages are set out below. Where there was no great difference between counsel’s paraphrasing of the Tribunal’s words, and the Tribunal’s actual words, I have set out only the Tribunal’s actual words.
The hearing before the Tribunal took nearly three hours. The recording is contained in two compact discs. The numbers refer to the times on the compact discs in the format, disc: hours: minutes: seconds. In some cases, the transcript of the hearing is not entirely accurate. Where there is a difference in a passage that the applicant relies upon, I have used the words contained in the audio rather than the transcript.
The applicant’s counsel said:
The learned member at a very early stage [1:0:0:0 to 1:0:23.51] adopts … a fairly sarcastic and cynical attitude towards the claim of the applicant and she does this in the context of asking a whole series of irrelevant questions which … were designed simply to unsettle the applicant … .
At [1:0:20:28] … she asked him questions about his living arrangements … .
The Tribunal asked:
… how did you get the money to afford to live at places like Docklands?
At [1:0:21:24], the Tribunal asked:
What sort of social life did you have when you … came to Australia?
At [1:0:22:07], the Tribunal asked:
Did you go out to nightclubs and bars and things like that?
The applicant replied:
Oh well it happened, to be honest, going out to the nightclubs and the pubs, not really nightclubs but the pubs, … but usually … we used to go to look at the libraries a lot and sometimes we used to go to the church and visit … .
…
Not really nightclubs and bars … .
The applicant’s counsel said:
[At 1:0:23.12, that answer] induces some fairly aggressive and indignant responses from [the Tribunal].
The Tribunal said:
Not really or not? I mean, you know, really you're 19 or 20, you arrive in Australia, you had a lot of friends from all over the place and you went to church and library, I mean really
Mr [Applicant] ... .
The applicant’s counsel said:
At [1:0:23:51] she asks him whether he goes to the movies, cafes, restaurants, and whether he has visited Sydney. And the applicant says yes, he has visited Sydney [and engaged in the other activities mentioned.]
…
… [This is] objectionable. It shows that the tribunal is not bringing [an impartial mind to] its task [of] determining whether the applicant has a well-founded fear on relevant grounds. It’s asking irrelevant questions with a view to unsettling the applicant. It can only be for that purpose … .
I do not accept the submission that the first 20 minutes or so of the hearing consisted of irrelevant questions designed to unsettle the applicant. Part of that time was spent asking the applicant about the studies he undertook before he applied for a protection visa. There was nothing untoward in asking about the applicant’s studies. The questions about how the applicant could afford to live in Docklands related to his claim that his family considered that it had wasted a lot of money on him and, in consequence, wanted to punish him. The questions about attendance at nightclubs and bars were presumably intended to establish a background for his claims about his religious conversion. None of this was in any way objectionable. There is no justification for the submission that this series of questions was “designed” to unsettle the applicant.
I did not detect any sarcasm or cynicism in the transcript or the audio. I did not detect an “aggressive and indignant” response from the Tribunal regarding the applicant’s attendance at bars. Rather, the Tribunal’s words and tone expressed incredulity. That response was justified, given that the applicant went on to say:
I’m not denying that I did not went to or I did not go to the clubs and the bars, but I’m just making the point that it was not a habit or it was not something that I really enjoy.
The applicant’s then counsel said:
… at [1:0:37:30] … she says … :
No, don’t - stop saying “to be honest”, because I know it’s just a manner of speaking but you need to be honest all the time okay?
…
I know its just a figure of speech I know, but in the circumstances, its probably better if you not say it, given that we've had all these credibility problems that have been put to you, so anyway, I know it’s a figure of speech and its hard to stop - keep going.
At this point, she starts laughing and tells him to keep going. …
And she says at [1:0:41.57], [after the applicant had again used the phrase “to be honest”]:
That's alright, don’t worry. I shouldn't have said that. I'll just ignore it. Okay keep going. It's fine, just keep going. Honestly, I know it's very difficult when you've got a little manner of speech to ignore it and that was wrong of me to pick you up on it, so I'm sorry about that. Can you just pretend, just don't worry about it okay. Keep going. Keep going.
When the Tribunal told the applicant not to use the phrase “to be honest”, her tone was helpful, and the comment was further softened with a laugh, that sounded like it was intended to be reassuring. Moreover, it was followed within a few minutes by an express apology and an acknowledgment that it is hard not to use one’s customary figures of speech.
It seems to me that, in drawing attention to the applicant’s use of the phrase “to be honest”, the Tribunal was alerting the applicant to the possibility that she would construe his occasional use of the phrase “to be honest” as meaning that he was not always being honest. However, the Tribunal then seemed to form the view that it was just a figure of speech, from which no conclusions should be drawn.
The exchange about these matters may have been somewhat discomforting. However, the Tribunal seemed to make a genuine effort to reassure the applicant. I do not consider that this matter, on its own, could have given rise to a reasonable apprehension of bias.
The applicant’s counsel said:
At [1:0:49:31] and following … she asks him questions about his attendance at the Frankston Mosque … she asks him what the colour of the building was.
At [1:0:50:40], he says that he went to the mosque twice.
At [1:0:51:07], … the tribunal member … [says]:
Well there's a difference in going every day and twice isn't there?
The question about the colour of the Frankston Mosque was entirely reasonable. It went to the question of whether the applicant had ever been there.
The comment that, “There’s a difference in going every day and twice” was unnecessary. It was argumentative. It was exposing the Tribunal’s thought processes. Procedural fairness did not require it to be said. However, on its own, it could not have given rise to a reasonable apprehension of bias.
The applicant’s counsel said:
And by [1:0:54:24], the tribunal member has clearly formed the view that his claims based on the Ahmadi religion just don’t stack up, [and says]:
I'm finding this difficult because I'm finding it difficult to accept what you're saying as credible. I just don't think that embracing a religion, as you would know, is as simple as filling in a form that you download from the internet and just thinking, well, I've signed the form now and I've written a bogus number at the top and dated it and now I'm Ahmadiyya. … there's an Ahmadiyya community. It's about being accepted and embraced by that community and being recognized as a genuine participant in that community, and that clearly has not happened.
The applicant attempted to persuade the Tribunal that he had genuinely converted and eventually said:
It is a rule, it is a policy of Ahmadiyya they can't support anyone who has converted while … in Australia.
The Tribunal immediately responded:
I don't think that's so. I think that they do. If he is genuine. What your problem is, is that they didn't think you were. Okay, I don't think what you've said is true and I think if someone genuinely embraces this while they're in Australia, of course they will. But I'm not aware at all that they won’t and I don't accept it. I think that they will. It's just that with you they didn't think you had. Is there anything else you want to say about that? About the genuineness of your adoption of Ahmadiyya? [A] (emphases added)
The applicant’s counsel continued:
At [1:0:56:50], she concludes, in effect, the examination on this issue by asking the applicant whether there is anything else he wants to say.
… the fact that the tribunal is inquisitorial … gives rise … to … a greater responsibility on the part of the tribunal to explore in detail the case and claims of the applicant and to contemplate both sides of a potential argument.
…
… It’s quite clear that front and centre of the applicant’s case of a well-founded fear of persecution is his conversion to the Ahmadi faith, and in the context of this hearing, he gets asked very few questions and is probed not one little bit about the earlier lack of credibility that he has admitted; he’s not asked any questions about the bogus certificate; he’s not asked any questions apart from his attendance at the mosque at Frankston …, he’s asked no questions about his understanding of the Ahmadi faith, and very little about how he came to be inducted into that faith as he contended.
So, in one sense, far from being too aggressive at him, … she hasn’t been aggressive enough.
…
… And thereafter, based upon her skimpy questioning, she makes serious findings of credibility against him, and says that his alleged conversion to Ahmadi is not genuine and/or fabricated. So the very fact that she has been so cursory, in my submission, is a circumstance which can be taken into account in support of a submission that a fair-minded person would apprehend that this member has not brought an impartial mind to deciding the case.
Contrary to the applicant’s submissions, I do not accept that the Tribunal was obliged to ask the applicant questions to bolster his case or overcome deficiencies in his case. There was no need, for example, for the Tribunal at the hearing to ask specific questions about the bogus certificate of initiation. That issue had been the subject of a s.424A letter.
Moreover, the Tribunal asked the applicant a number of times if there was anything further he wished to say about his alleged conversion. It was for the applicant to make out his own case. By not asking questions about the matters identified by the applicant, the Tribunal did not act in a way that could have given rise to a reasonable apprehension of bias.
In relation to the submission that, by 1:0:54:24, the Tribunal had clearly formed the view that the applicant’s claims about the Ahmadi religion did not “stack up”, there is nothing untoward in a Tribunal, mid-hearing, forming such a view. The question is whether the Tribunal’s words or conduct could give rise to a reasonable apprehension that nothing could be said or done to change the Tribunal’s view.
However, more fundamentally, at the point marked “A” above, the Tribunal was responding to the applicant’s claim that:
it is a policy of Ahmadiyya they can't support anyone who has converted while … in Australia.
That was the claim that the Tribunal said was not true. At the point marked “A” above, the Tribunal was not expressing a view about the totality of the applicant’s claims relating to his alleged conversion. The Tribunal’s very strongly worded view that the applicant’s claim was not true concerned only the alleged policy of Ahmaddiya to not support people who had converted while in Australia. That claim was a subsidiary aspect of one of the applicant’s claims.
Having said that, when the Tribunal reached the point marked “A” above, the audio of the Tribunal’s hearing sounds as though the applicant was stunned. It also sounds as though the Tribunal member recognised that she had overstepped a boundary. She somewhat tentatively asked the applicant if there was anything else he wished to say about his conversion.
The first respondent, in supplementary submissions, addressed this point along with several others. The submission was simply that the questions were relevant to testing the evidence. That submission fails to engage with the point.
I consider that the Tribunal’s vehement expression of disbelief of an aspect of the applicant’s claims in the passage marked “A” above could have produced a reasonable apprehension of bias in a fair minded, properly informed, lay observer.
However, as explained at [68] of VFAB, it is necessary to look at the entirety of the hearing process, to see if any reasonable apprehension of bias may have been allayed by subsequent words or deeds.
In my view, the reasonable apprehension that could have arisen from the passage marked “A” above would have been allayed by the Tribunal member almost immediately asking the applicant, as she did, if he wished to say anything further about his alleged conversion. However, that conclusion, again, is subject to later developments.
The applicant’s counsel continued:
And at [1:1:13:30], she indicates she has formed a firm view on the question of persecution on the grounds of religion with a statement to the effect, “I am not satisfied that you are one of them.” She then goes on to decide other aspects of the case.
The Tribunal actually continued:
I want to move beyond that little bit, because I'm frankly not quite satisfied that in fact that you are an Ahmadi. So I wanted to look more at your western views, your liberal views, your anti-fundamentalist views, rather than about being an Ahmadi. I understand about the discrimination that the Ahmadis face. It's just that I'm not yet satisfied that you're one of them. But leaving that aside, it's more the question of your liberal views, your western education and your western outlook in many ways and your views against Islamic fundamentalism. [B] (emphases added)
The first respondent submitted that the Tribunal’s statements were made in the context of evidence that contradicted the applicant’s claims. That is beside the point. The question is not whether the comments were open on the evidence. The question is whether there could have been a reasonable apprehension that the Tribunal had formed an immutable view.
The first respondent also submitted that the Tribunal had given the applicant several opportunities to provide evidence in support of his claims. That is well and good. To avoid creating a reasonable apprehension of bias, the Tribunal must give an applicant a reasonable opportunity to put his case. However, that is not enough. The Tribunal must also not do or say anything that could give rise to a reasonable apprehension that the Tribunal had formed an immutable view.
The first respondent also submitted that the Tribunal was simply trying to move on to other points, namely, the applicant’s claims about his liberal views, western education and views against Islamic fundamentalism. Moreover, the first respondent submitted in relation to this point that the Tribunal member actually said she was “not quite satisfied” about the applicant’s conversion. She also said she was “not yet satisfied”.
The Tribunal member did not need to say anything at all during the hearing about the degree of her satisfaction about the applicant’s conversion. Procedural fairness did not require it. The applicant’s conversion was clearly in issue. The delegate had not accepted that the applicant’s conversion was genuine. The s.424A letter, which was sent before the second hearing, referred to the correspondence with the Ahmadi association and said:
This information is relevant because it directly contradicts your claims to be a genuine convert to the Ahmadi faith.
…
The information therefore undermines both your claim to be a convert to the Ahmadi faith and your credibility generally … .
In these circumstances, when the Tribunal had asked all the questions it wished about the applicant’s conversion to the Ahmadi faith, all the Tribunal needed to do was ask the applicant whether he wished to say anything further about that matter and, when he had said all he wanted to say, ask questions about the next topic.
By saying she was not “yet satisfied” and not “quite satisfied” about the applicant’s conversion, and immediately trying to move on to the next topic, it appeared that the Tribunal member was not, at that time, interested in anything else that the applicant might say about his conversion. Depending on whether the Tribunal willingly returned to this issue later, its views at this stage do not appear to be amenable to change.
Consequently, I consider that the passage marked “B” above could have created a reasonable apprehension of bias, subject to anything that was said or done subsequently.
The applicant’s counsel then said:
At [1:1:16:30] …, the tribunal makes the observation against the applicant’s … claim … [that he faced persecution for reasons of] membership of a western educated social group.
The Tribunal actually said:
There are squillions of people who are educated overseas and who come and go in and out of Pakistan all the time. There … is a large and very vocal part of the Pakistan society which is opposed to fundamentalism. So … I don’t think that those people are particularly persecuted sometimes. Some people of a very high profile might be. Like the Punjabi Minister and so on. There are people like that who have been assassinated. But I think that as a normal member of the Pakistan community being opposed to those things -- doesn't bring you to particular harm. The Pakistani press is bringing the expression of conflicting and different views and views against fundamentalism. More so than ours. I mean I think the freedom of press in Pakistan … is far greater than we would allow here. You know it is a throbbing democracy with a lot of problems. But you can certainly be anti-fundamentalist in Pakistan and have a western outlook without coming to harm. It seems to me. [C] (emphases added)
The first respondent argued that, in this passage, the Tribunal member was simply making an observation based on material that she had read.
I do not accept that the Tribunal was simply making an observation. The Tribunal appeared to be expressing a firm view, during the course of the hearing, that she did not accept the applicant’s claim that he faced persecution as a member of a particular social group, being Western educated Pakistanis who oppose fundamentalism.
In this particular instance, it was necessary for the Tribunal to put to the applicant that his claims were not true, because this specific point had not been dealt with by the delegate or in the s.424A letter. The proper way to put the point was to say something like:
But is it not the case that people in Pakistan do not face serious harm by reason of being Western-educated or opposed to fundamentalism or both?
Instead of putting the proposition as a question, and thus inviting a response, the Tribunal stated a conclusion. The conclusion appeared to be vehement and not amenable to change. In particular, the Tribunal said:
But you can certainly be anti-fundamentalist in Pakistan and have a western outlook without coming to harm. (emphasis added)
Consequently, it seems to me that the statements in the passage marked “C” could have produced a reasonable apprehension of bias, subject to anything that was said or done subsequently.
The applicant’s counsel then said:
At [2:0:9:30] …, the applicant again seeks to put his case based on the Ahmadi faith and she rejects him by saying:
Anyway, I think probably now we’ve exchanged our views about Pakistan, and we should move on now to the question of your family from whom you are estranged, is that right?
Actually, at this point, the applicant had been talking about corruption in Pakistan. The Tribunal entered into a debate about that issue, stating a contrary view at some length, and then made the statement set out in the previous paragraph. The whole passage reads as follows:
Well I don't think you are correctly representing what I said. I mean I think I wasn't presenting a rosy picture, I think I was just presenting a more balanced picture. I certainly said that I talked about the rise of religious extremists and those sectarian attacks that occur and political attacks and targeted attacks, I think I did. But what I was saying is that there is also an outspoken and growing part of the Pakistan community who are speaking out about that, but I don't accept that every Police officer is corrupt. I know Police corruption is a problem. I just think that it's a much more complicated picture than what you've provided with everything being corrupt and terrible and run by extremists, so I just don't accept that. It's not consistent with the information that I've read which paints a rather more complicated and mixed picture and from which I do not see a real chance that somebody like you would be persecuted if you are not Ahmadi, which I don't know if you are yet. But I have my reservations about whether you are in the first place. Anyway, I think probably now we've exchanged our views about Pakistan and we should move on now to the question of your family from whom you are estranged, is that right? [D] (emphases added)
In this passage, the Tribunal was expressing a strong view that the applicant would not be persecuted for reasons other than his alleged Ahmadi faith. Again, the Tribunal expressed a firm view in the context of moving on to another point, rather than inviting a response. By immediately moving on to another point, it appeared that the Tribunal member was not open to hearing any more about the matter and that her view was fixed. While the applicant’s claim to be an Ahmadi was his main claim, his claims to fear harm by reason of his western education and anti-fundamentalist views were significant and separate bases on which he claimed to fear persecution.
Consequently, I consider that the passage marked “D” could have given rise to a reasonable apprehension of bias, subject to anything said or done later in the hearing. Moreover, the passage exemplifies the approach taken by the Tribunal, namely, debating the various issues with the applicant rather than asking concise questions and putting succinct propositions with a particular purpose. The hearing did not take the usual form of question and answer but seemed more like a rambling conversation, or, at times, an argument.
The applicant’s counsel then said:
[At 2:0:11:27] She then goes on for a curious series of questions, again with … what we say is irrelevant nonsense … . [S]he asked him about whether he had any money in immigration in custody because [the applicant] has been detained in Maribyrnong and Villawood for significant periods of time. And then at [2:0:11:56] she asks him some questions about who comes to see him in detention.
I consider that these questions were relevant. They went to whether the applicant’s family was still supporting him while he was in detention and, depending on whether any Ahmadi people had visited him, whether he had truly adopted the Ahmadi faith and been embraced by that community.
The applicant’s counsel continued:
[At 2:0:13:20] she gets back to asking questions about the issue of the family social group persecution. [The applicant] gives evidence that “they have declared me … not their son” and he calls his parents Sunni extremist Muslims … .
The applicant said that his family thought he had wasted a lot of money. The Tribunal said:
It seems to me from the emails that you gave, that have been submitted to the Department I think from your brother and from your father, that they are just really grumpy, really cross with you about financial things.
…
But sometimes families don't have bottomless amounts of money and, you know, there are a number of sons, you know, friends of mine say to their children … if you're not going to study you've got to go to work.
The applicant’s counsel continued:
At [2:0:15:23, the applicant] makes the statement that his family’s rejection of him hurts him and at this point he seems to get fairly agitated in giving his evidence. And she deals with this, in my submission, in an inappropriate manner.
The applicant said three times in rapid succession that he was hurt by his family’s rejection of him. He became a little agitated at this point. The Tribunal member laughed, rather ruefully, while saying, “if you're not going to study you've got to go to work”. I do not think the laughter could be construed as laughing at the applicant, or laughing about the applicant’s claims. It seemed more like rueful laughter about the trials of being a parent of young adults. The audio is consistent with the applicant taking it that way.
I accept that the Tribunal handled this issue in an inappropriate manner, in that the Tribunal member spoke about her friends’ personal experience and tried to persuade the applicant that his family was treating him in a normal way. There was no need to do either of those things. However, I do not consider the exchange about families to this point could give rise to a reasonable apprehension of bias.
The applicant’s counsel then said:
At [2:0:17:4] she says words to the effect, I have observed relationships between parents and children becoming robust and she laughs. There’s a bit of a laugh. It is something that happens – words to that effect. So in my submission, his claims in relation to his upset and his fear about his family persecution is treated, with respect, by her with utter contempt, at best, a seriously cultural insensitivity.
The Tribunal actually said, in connection with this point:
Yes but, they might have thought you were in quite a good situation because they might have been transferring you money quite a long time. … I can tell you the conversations that I've observed between parents and children can become quite robust here too face to face, … it's just something that happens as children grow up.
The Tribunal member did not really laugh during this passage. She made more of a “humph”, after the words “face to face”. I do not see anything untoward in the Tribunal making this sound.
I do not accept that the Tribunal at this point displayed utter contempt for the applicant’s claims. However, I do accept that the Tribunal member displayed cultural insensitivity, by attempting to normalise the applicant’s claims about his family. Shortly after the passages just mentioned, the applicant spoke about family issues in Pakistan ending in murder, if disrespect had been shown. Having said that, I do not consider that these passages could have created a reasonable apprehension of bias. The Tribunal displayed a good deal of scepticism, but not an immutable view.
The applicant’s counsel continued:
Again, she treats him with disdain, in my submission, at [2:0:21:21] by the use of such phrases as “I don’t think so really”, uttered in about that tone, with respect. “Oh, come on”.
The Tribunal said, “I don’t think so” in response to the applicant’s claim that his brother might have arranged for the Pakistani High Commission to track him down and they would be waiting for him if he were to return to Pakistan. The Tribunal said, “Oh, come on” in response to the applicant saying, “That’s what I heard.”
The applicant’s counsel continued:
… at [2:0:21:10] she calls his evidence fanciful … .
Actually, the Tribunal said:
I think the chance of [the Pakistani High Commission in Australia] having any interest whatsoever in your family problems is extremely remote, let alone the chance of them burdening themselves with the communication of that back to Islamabad, it's just fanciful.
…
I'm not laughing. What I said was fanciful was the idea that the Pakistan High Commission [talking over each other]. Just to make it plain what I thought was fanciful. What I thought was fanciful was the idea that the Pakistan High Commission, as your brother seems to think, would somehow be interested in you and your family problems and be, you know, somehow communicating with Islamabad about it.
…
It's fanciful. He might have written to them, but I don’t know, but I very much doubt it. They just wouldn’t care. I just don’t believe that the Pakistan High Commission would have any interest in a problem and a family problem involving a student or one of their nationals in Australia and the family background. It’s just not feasible that they would take an interest. They're busy. They've got a lot of work to do.
…
Well I don’t know him, but I'm sure they're very busy. They've got a lot of consular work to do, they've got their own diplomatic work to do and they've got their trade work to do so they're very busy. Too busy to worry about family spats. Now, are there any other things you want to tell me about your family before we move on? [E] (emphases added)
The first respondent submitted that the Tribunal’s comments had been taken out of context, did not amount to disdain, and were made in response to the applicant’s claim that the Pakistani High Commission would be interested in the applicant’s family problems. The first respondent’s submission seems to be that it was reasonable for the Tribunal to completely disbelieve the applicant’s claims about the Pakistani High Commission.
That may be so. However, in my view, in these passages, the Tribunal appeared to be stating a concluded view, rather than asking a question, or putting a proposition in a way that invites an answer. The Tribunal at this point appeared to be absolutely adamant about her view and demonstrated no willingness to entertain any other evidence about that point. The Tribunal asked if the applicant wanted to say any “other things” about his family, meaning things not related to the Pakistani High Commission. That is, the Tribunal made it clear that the issues relating to the Pakistani High Commission were closed.
The situation would have been very different if the Tribunal had just said:
I find it very hard to believe that the Pakistani High Commission would have any involvement in your family dispute. Is there anything else that you want to say about that?
As the matter stands, it seems to me that the Tribunal’s comments at the point marked “E” above could have produced a reasonable apprehension of bias, subject to anything said or done later in the hearing.
Moreover, the Tribunal’s tone in saying, “I don’t think so, really” and “Oh, come on”, was disdainful. The Tribunal might have been entirely justified in thinking that the applicant’s evidence about the Pakistani High Commission was incredible. However, there was no need for the Tribunal to deal with the matter in the way that it did.
The applicant’s counsel continued:
[At 2:0:33:0] effectively the substantive examination of the applicant’s claims ceases, and at [2:0:34:25], the applicant’s advocate is asked to respond and she, in effect, protests that the applicant, as I do today, had not been given an appropriate opportunity to deal with the issue of his conversion to the Ahmadiyya faith.
The Tribunal actually said:
Okay. Alright. Well look I don’t have any other things that I needed to ask you. I've covered the issues that have arisen in my mind. I have reviewed all of the material that was before [the Tribunal as previously constituted]. Would you two like another little while to confer before we conclude or would either of you like to say anything to me before we conclude? What would you like? Would you like just 5 minutes?
The applicant’s representative replied:
[The applicant] instructed earlier that he would like to give evidence about his conversion to Ahmadiyya and I noticed evidence about that hasn't been taken at this hearing and it wasn't taken at the previous hearing … .
After some persuasion, the Tribunal agreed to hear more about that matter. There was an eight minute break, then the Tribunal said:
Okay, alright. I'm happy now to listen to what you want to tell me ... I think that you've written a lot about it, we've talked around your conversion, but if you feel that you haven't had the opportunity to speak of it then now is the time.
The applicant then spoke 391 words, finishing with:
And the main motivation and the main attraction towards Ahmadiyya was the rejection of terrorism at all. The word Jihad, that teached me. When I was in university…
The applicant’s counsel said:
[At 2.0.39:32, the Tribunal] just dismisses those submissions, dismisses that evidence and says:
I think you've written all about this? It's got a very familiar ring.
The applicant’s representative said that it was different to give the statement as oral evidence. The Tribunal then said:
It's just that some of this I've read word for word already. It's okay, I'm happy to keep going. I suppose I'm mindful that we have the interpreter until 5 and it's 20 to 5, so do you think ... I'm happy to listen for as long as you like, but we might need to have a break for the interpreter.
There was some discussion, in which the interpreter said he had to leave at 5pm, the applicant indicated that he needed an interpreter and the Tribunal said that meant they had 20 minutes.
The applicant’s counsel said:
So at that point she wants to terminate the tribunal hearing.
At [2:0:40.32] she dismisses the evidence by saying “Some things were word for word from the stat dec.”
The Tribunal actually said:
Alright okay, well we'll keep going for the next 20 minutes again. I'm just reminding you ... I'm sorry I've interrupted you but I'm just reminding you … that some of the things that you've said were all from the stat dec ... but, we'll just keep going.
The applicant’s counsel then said:
At [2:0:47:10], in response to some evidence that he gives about his fear of fundamentalist Sunni Muslims in the context of his Ahmadiyya faith, she says words to the effect, “That is ridiculous. There are,” again the word, “squillions of Sunni Muslims who are law abiding citizens.”
Immediately before that passage, the applicant had said 692 words, finishing with:
What's the Sunni done in life? Now they are terrorists.
At that point, the Tribunal said:
Okay, that's ridiculous. There's a handful of terrorists. There are squillions of Sunni Muslims who lead moderate lives and who achieve success in their lives, who are engaged with their communities. It's not all Sunnis who do the terrorist acts, it's just that ... .
The applicant’s counsel then said:
[At 2:0:51:30], in response to his assertion that he might be persecuted she says, “That is just silly.”
Actually, there was no such statement, as far as I can tell. The applicant said that the teachings were helping him. The Tribunal seems to have thought the applicant said the people were helping him. The Tribunal said in reply:
Well they're not really are they? The religion is helping you, the beliefs are helping you, the Ahmadi aren't helping you.
The Tribunal asked the applicant if he wished to say anything else about his beliefs. He said, “That is it”. The Tribunal then interviewed another witness. Afterwards, the Tribunal again asked the applicant if there was anything else he wished to say. He said there was nothing else. The applicant’s agent then made an oral submission. The Tribunal member said that she would provide a written summary of the applicant’s claims and invite the applicant to indicate whether or not it was accurate.
The applicant’s counsel submitted in conclusion that:
… bearing in mind the conduct of the hearing and considered as a whole, and accepting my learned friend’s submission that the test should be applied realistically and not so that it may be lightly satisfied. The submission is that there is sufficient evidence considering the conduct of the tribunal member as a whole, that a fair minded lay observer would reasonably apprehend that that member might not bring an impartial mind to dealing with the case. That submission is principally founded upon her failure to properly deal with the core claim in the case, namely, that of the applicant’s religious beliefs.
She is entitled to be vigorous and she’s entitled to put matters adverse to his credit. She did neither. She was neither and did neither.
The first respondent further submitted that, towards the end of the hearing, the applicant asked for, and the Tribunal granted, a further opportunity to present evidence about his alleged conversion. The first respondent said that it is clear that the Tribunal permitted the applicant to expand upon his evidence, even though the applicant was at times reciting word for word the case he had put in writing.
Conclusion
It seems to me, having listened to the audio of the hearing before the Tribunal and having read the transcript in considerable detail, that, taking the hearing as a whole, a fair-minded, fully informed, lay observer could reasonably have apprehended that the Tribunal, while the hearing was still underway, had formed an immutable view on issues critical to the case.
As indicated above, there were various statements made by the Tribunal during the course of the hearing that could well have given rise to a reasonable apprehension of bias. In all the circumstances of this case, I do not consider that any such fear would have been allayed by the Tribunal, towards the end of the hearing, acceding to the applicant’s request to be permitted to say more about his beliefs. By that stage, the Tribunal had so conducted itself that the Tribunal’s somewhat begrudging agreement to listen to the applicant further had the appearance of going through the motions, rather than the appearance of a genuinely open mind. This case is somewhat like VFAB, where an attempt to retrieve the situation at the end of the hearing was insufficient to allay the reasonable apprehension that had arisen previously.
Having said that, in many respects, the Tribunal conducted the hearing of this matter with considerable diligence. Moreover, after the second hearing, the Tribunal provided to the applicant a 26 page summary of his claims and evidence and invited him to comment on its accuracy. (This was not expressed as an opportunity to provide further evidence. It was merely as an opportunity to correct any errors in the Tribunal’s summary.)
It must also be emphasised that a reasonable apprehension of bias arose in this case for reasons that that fall short of establishing a case of actual bias.
Nevertheless, for the reasons given above, the Tribunal’s decision must be set aside. There will be orders accordingly.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 31 August 2012
Key Legal Topics
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Administrative Law
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Judicial Review
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Remand
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