MZYYF v Minister for Immigration
[2014] FCCA 75
•23 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYYF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 75 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal found applicant’s claims to be not credible – whether decision affected by apprehended bias – whether breach of s.425 Migration Act 1958 – matter remitted. |
| Legislation: Migration Act 1958 (Cth), s.425(1) |
| SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| First Applicant: | MZYYF |
| Second Applicant: | MZYYG |
| Third Applicant: | MZYYH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 657 of 2012 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 2 May 2013 & 26 July 2013 |
| Date of Last Submission: | 5 September 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2014 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the Respondents: | Ms Symons of Counsel |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The decision of the second respondent made on 1 May 2013 be set aside.
The matter be remitted to the second respondent for reconsideration according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 657 of 2012
| MZYYF |
First Applicant
| MZYYG |
Second Applicant
| MZYYH |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants applied to the Department of Immigration for protection visas on the 31st of October 2011. Only applicant MZYYF made a substantive application, the other two applicants are her husband and son. On 23rd January 2012 the delegate refused the application.
The applicants applied to the Refugee Review Tribunal for review of the delegate’s decision on the 9th of February 2012. The Tribunal refused the application in a decision sent to the applicants under cover of letter dated 2nd May 2012.
The applicant’s claims were based upon the fact that her own mother was a prominent member and leader of the TRS (Telangana Rashtra Samithi) political party, and that as a result of this her whole family had become victims of atrocities perpetrated by different agencies within the State and Federal government. The applicant also claimed fear of harm from those who held contrary political views and on the basis that she was a member of a Schedule Cast. Central to the decision of the Tribunal was a finding that the applicant lacked credibility. The Tribunal said:
93. The Tribunal found the applicant not to be a credible witness. Her answers to questions were vague and non-specific and she frequently had to be prompted to provide a meaningful answer. Whenever asked by the Tribunal to provide specific details of her claims, such as place and date of the claimed events, number of claimed threats and attacks on her family or raids on her property, the applicant would provide a general statement that she is afraid to return to India because of her mother’s political profile. There were significant internal inconsistencies in her evidence which she was unable to explain to the satisfaction of the Tribunal.
The Tribunal was also concerned about the timing of the applicant’s departure from India saying:
96. … The Tribunal finds that the applicant’s failure to leave India with her child in January 2009 when she had a chance to do so in January 2009 as a member of the family unit of her husband is inconsistent with her claimed fear of serious of significant harm. This caused the Tribunal to further question the truthfulness of the applicant’s claim.
The Tribunal was also concerned about her delay in applying for a protection visa saying:
97. The applicant claimed that she left India with her child in November 2009 because she was not safe and was constantly threatened and attacked by the local government, local administration, state police and local people because of political affiliation of her family. After her arrival to Australia there was a delay of more than two years before the applicant applied for protection. When asked by the Tribunal to explain why she waited more than two years to lodge her protection application, the applicant stated that “the issue was not so serious at the time and is very serious now and that her husband had a visa”.
98. The Tribunal finds that the explanation concerning the delay in lodging the protection visa application to be implausible as the applicant claimed in her oral evidence that she and her family were threatened, attacked on several occasions prior to her departure from India. The Tribunal finds that the applicant’s failure to seek protection for over two years is inconsistent with her claimed fear of serious or significant harm in India.
This is further expanded upon at paragraph 108 where the Tribunal said:
108. According to the applicant’s oral evidence, after the Migration Review Tribunal affirmed the Department’s decision to cancel her husband’s visa (and consequently visas held by the applicant and her child) they made a request for the exercise of Ministerial discretion. It is the applicant’s evidence that in the request for exercise of Ministerial discretion they did not mention anything about her fears of returning to India.
Ultimately the Tribunal did not accept that the applicant’s mother was a prominent or high profile member of the relevant political party saying:
106. Based on the evidence before it, the Tribunal is not satisfied that her mother is a prominent or high profile member of the TRS party. As a consequence of this finding, and in the context of the Tribunal’s finding about the applicant’s credibility, the Tribunal does not accept the applicant’s claims that she and her family suffered serious or significant harm as a result of her mother’s prominence within the TRS party.
One can summarise the Tribunal’s decision as being based upon a complete rejection of the credibility of the applicant and, as a consequence, all of the claims that she made.
First Ground of Review
The first ground for review as set out in the application is “Tribunal took [an irrelevant consideration] in to account”. It is difficult to identify what irrelevant consideration it is said that the Tribunal took into account in this case from the material lodged by the applicant or the Court Book. In these circumstances the ground must fail.
The only claims that the applicant made at the oral hearing before me were general claims that the Tribunal had not considered her version of events nor considered that there was a threat to her child. The Tribunal decision is replete with the references to the fear that her child would be harmed or kidnapped. It appears that this ground really sounds under her third and fourth grounds.
Second Ground of Review
The second ground of review was phrased as “Tribunal [ignored] claims and made finding with out evidence”.
The Tribunal decision which runs for some 23 pages comprehensively covers the applicant’s claims and, both in the general sense, and also as identified from the factual claims that she made in various documents and at hearings. The applicant did not point to any claim that had been ignored or any specific evidence not taken into account, beyond the way in which the Tribunal dealt with a CD containing some video footage and documents in Hindi. Whilst the CD (which was presumably provided to the Tribunal), was provided by the applicant to the Court, no translation of the material contained within the CD was provided, despite an opportunity to allow the applicant to file an affidavit by a translator in order to establish that this material was relevant to the determination to be made by the Tribunal.
On the 29th of April 2013 the applicant lodged an affidavit which effectively annexed a letter saying that she did not have time to obtain a translation of the relevant material. However on 2nd of May 2013 the matter was adjourned to the 26th of July 2013 for further hearing, to enable the transcript of the Tribunal hearing to be provided. This would have permitted the applicant more than sufficient time to provide a translation of the other documents upon which she sought to rely. She did not do so.
In the circumstances I am not persuaded that there is any evidence that the Tribunal failed to have regard to relevant material that was placed before it.
Third and Fourth Grounds of Review
The third and fourth grounds which the applicant relied upon are not well drawn, although by the end of the hearing it was clear what circumstances they focused upon. These grounds provided:
3. Tribunal denined the applicatin procedral faeeness
4. Tribunal was not “Genrous”
The applicant stated, at the hearing, that she meant by these grounds that the Tribunal member had told her that she was not believed 4 to 5 times during the course of the hearing, and prior to the hearing finishing. As a result she believed she did not receive procedural fairness and that there was a reasonable apprehension of bias on the part of the Tribunal member.
After these claims were squarely identified orders were made to allow the Minister to file the transcript of the Tribunal hearing, so that the relevant passages could be identified, as it became apparent that the applicant was raising specific claims that would provide at least an arguable case.
The transcript references that the applicant identifies are as follows:
a)The first passage appears at page 25 of the transcript when the discussion turned to circumstances upon the release of the applicant’s mother from jail. The exchange appears at page 25 line 6 to line 25 as follows:
TM: Was she given release papers from Jail?
TM: My question is did she receive release papers when she was released from jail did they give her any papers?
A: No.
TM: Mrs [MZYYF] I don’t believe you that your mother was arrested 3 times and spent time in jail. I put to you that I don’t believe considering that you have no details about it, you are just guessing. You are telling me that she was arrested 3 times in 2011, you don’t know when, you don’t know what time of year was that. First you said its 2, then you said 3 times. I mean, I told you at the beginning be honest with me. Tell me the truth. No, use interpreters ok.
I: Um my mum usually takes part in [indecipherable] like that [indecipherable] only so if you have any doubt [indecipherable] police station phone number, please call them and ask them and other than that I can’t say more.
TM: Why didn’t you mention that your mum was arrested before in your protection visa application.
I: I could remember I got my problems in the application not like my mum but about me.
TM: You don’t think it’s a relevant thing to mention that your mother was arrested by police on 3 occasions in 2011, you don’t think that’s a significant thing?
b)When the Tribunal discussion turned to the claim that the congress party had raided the applicant’s house she said (at page 33, line 10) that the first raid was before 2005, in 2004. Whilst it is a lengthy quote the lead up to the relevant exchange is important to understand its context. The exchange proceeded as follows (at page 33, line 15 to page 34, line 16):
I: Before 2004 before [indecipherable] 2005. In 2004.
TM: 2004. Now I put to you that the TRS was in alliance with the Congress party in 2004.
I: Yes. Congress party – but the party said didn’t happen like that [indecipherable] didn’t understand.
TM: I’m just putting to you that in 2004 TRS was together with the Congress party.
I: Maybe I don’t know. I don’t remember.
TM: Well I put to you that that’s the case and I’m asking why would they raid your property if the Congress party was in alliance with the TRS?
I: Sorry sir [indecipherable] bundle of chaos [indecipherable] before she’s saying that because they were there like that [indecipherable] determined the direction of [indecipherable] here.
TM: Why would they raid a house of a member of the TRS party if there were in an alliance together with the Congress party?
I: In the police force they can become people that belong to some people [indecipherable] and some people [indecipherable] like that [indecipherable] personally some people think they don’t want separate [indecipherable].
TM: You didn’t answer my question again.
I: Okay.
TM: I put to you that I don’t believe that your house was raided in 2004 by national party. I think – my – I’m inclined to believe that you invented that story – that you’re not telling me the truth. Do you want to make comments on that?
I: Personally in the house – in my personal reasons [indecipherable] think that those people personally [indecipherable] the land was only for the purpose of the lending [indecipherable].
TM: Okay. I told you that your credibility as a witness was an issue okay.
I: Maybe she is because of personal reasons people [indecipherable] come back. They got our land [indecipherable] the party [indecipherable] the people need to go back to the [indecipherable].
TM: I’m not asking you about that. Don’t give me the political speech. I’m asking you about specific raids. You claim that the police raided your property in 2004. Is that correct?
I: Yes.
TM: Okay Who was present at the time when the police came?
I: All the family.
c)A further exchange appears at pages 37, line 18 through to the end of page 38:
TM: Do you remember when did you lodge your protection visa application?
I: October 2011.
TM: That’s right, 31st of October 2011 you lodged your protection visa application, you came here in November 2009 and you claimed that you left the country in October – In October 2009 you received the threat. Is that correct?
I: [indecipherable]
TM: Someone rang your mum saying we are going to kidnap your child and then you got scared and you came to Australia okay. So you’ve been in Australia from November 2009 and you waited 2 years almost to lodge a protection visa application. Why?
I: The issues were not serious at that time but the issues are very serious now.
TM: Now you’ve told me that you’ve been threatened in 2009 – October 2009 that your son will be kidnapped. Is that correct?
A: Yes sir
TM: Now you’re telling me that the issue wasn’t serious?
I: At the time my husband had a visa [indecipherable].
TM: We talked about that. I’m not interested in it. You’ve told me what sort of visa your husband had, why was the visa cancelled, we’ve talked about it okay. That’s not my question okay. If you were afraid as you claimed that you were afraid in October 2009 that something bad will happen to you, yourself or your family. Why did you. I didn’t finish my question. Why did you wait 2 years before seeking protection in Australia?
I: My husband’s visa was there, it was there so that’s why I went there and I thought that he will get visa and I [indecipherable].
TM: It’s one thing to ask for protection because you claim that you’re being persecuted in India, so a person who is being persecuted in India for political reasons, for reason of his race, religion, you would expect that as soon as you come here, you would seek political protection you would seek a protection visa in Australia. But you didn’t do that. You didn’t lodge your protection visa application when you came?
I: My husband solicitor was there and he did get the visa but that’s what I did.
TM: But that wasn’t a protection visa that your husband was holding, it was a student visa.
I: But we wouldn’t have the problem normally [indecipherable] my husband [indecipherable].
TM: Mrs [MZYYF].
I: I thought that we wouldn’t get a problem with the visa but the visa documents had arrived.
TM: It is important that we interpret this correctly.
I: Yes.
TM: Okay, I put to you that given your immigration history and the history of your husband in Australia, that the reason why you lodged this protection visa application is not because you are afraid to go back to India. It is not because you are afraid of serious or significant harm. The reason is that you want to stay here as long as possible.
I: We knew Australia government will take protection for [indecipherable] is that you are thinking that from my personal need for asking for protection [indecipherable].
TM: No, I’m saying that given your immigration history, you exhausted all avenues of staying here in Australia. Student visa was cancelled. You went to the Migration Review Tribunal. You asked for the exercise of Ministerial discretion. Not once you mentioned that you’ve got a protection claim. Now, when you exhausted all other avenues you lodge a protection visa application, not because you are afraid to go back to India because you want to stay here in this country.
TM: Do you want to comment. Sorry. Do you want to comment or respond to what I just said?
d)At this point the interpreter indicated some difficulties which prompted the following exchange (at page 39, line 1 to line 10):
I: Actually sir, [indecipherable] mentions [indecipherable] about my mother.
TM: Sorry?
I: The sentence that she has been saying is not really connected with one another. The sentences are not connected she says like and, are, like that at the start of the conversation, then breaks it there and then says something.
TM: Thank you for letting me know but your job is to interpret exactly what she saying. If she doesn’t make sense you still have to interpret that the way she said it.
TM: So you can interpret that to her.
e)The Tribunal member’s frustration levels were clearly showing in the exchange that appears at page 40 (line 1 to line 21):
TM: Okay. I also put to you that your mother doesn’t have a political profile in [a particular Indian state]. Do you want to comment on that?
I: She is one of the members of the party.
TM: She is a member of the party.
I: Mmm.
TM: She doesn’t have a political profile. She’s not in charge of the party. She’s not someone who holds a profile within the party.
I: She has worked as [indecipherable] and then from 2001 she was working for the party.
TM: You told me that. Okay. I also put to you that neither you or your family was ever threatened because of your mother’s political profile. Do you want to comment on that?
I: But there are threats now of what happened. That the whole family because [indecipherable] I have [indecipherable].
TM: Okay. Now, did you or your mother ever sought Police protection in India?
I: Even if [indecipherable].
TM: Please this is starting to get annoying really. I’m asking you did you or your mother ever went to the Police station or state Police and ask for protection? I’m not asking you if you go what would happen. Did you or you did not go and ask for the Police protection?
I: I have not asked for the Police protection but my mum has.
f)The applicant also complains about an exchange that appears at page 41 (lines 9 through to 14) where the interpreter appeared to have had some initial difficulty understanding the word “strikes”. This does not appear to me to take the matter any further for her argument.
g)At page 42 when discussing the possibility of moving to [a particular Indian city] the exchange proceeded as (at page 42, line 4 through to line 26):
TM: Okay, I put to you that in India there is a freedom of movement and the government in India respects this practice so you can move from any state to any state, there’s no restrictions as to movement in India.
I: They can go anywhere but here no one can come but in India they can come.
TM: Who is going to chase you if you move to [a particular Indian city] who is going to chase you if you move there?
I: Anybody can follow me, anybody anybody can follow because I have a [indecipherable] I can’t [indecipherable].
TM: But why would they chase you. I mean if you move to [a particular Indian city], you’re not a member of the party, you’re not able to support the party, you’ve never been involved with the party, why would they chase you?
I: Usually in the case of my mum, they attack the [indecipherable] so they attack children, so I have a child so…
TM: But how would they find you? If you moved to [a particular Indian city], how would those people find you?
I: [indecipherable] if they want to [indecipherable].
TM: How? How would they find that you moved your family to [a particular Indian city]? Would you let them know?
I: I don’t tell them but can go there with child from here to there, there to here, you know and then they follow and they will know.
TM: The answer doesn’t make any sense.
I: Because the ruling party is the national and the local and state government and they can come anywhere in India and only because we are here they can’t come here.
h)Finally the Tribunal member said at page 44 (line 33 to line 35) to page 45 (line 1 to line 2):
TM: I have no further questions for you. I have great concerns about your claims. And I have great concerns about your credibility as a witness. And I’ve already put to you that you are doing all of this not because you’re afraid of going back to India but because you want to prolong your stay in Australia. Now I am going to talk to your husband.
i)When considering the evidence of the husband the Tribunal member’s exchanges with the husband were very brief and can be conveniently set out in full (at page 45, line 22 to page 46 line 16):
TM: [Husband of MZYYF], I remind you of your oath that you’re going to give truthful evidence. You already gave oath, gave when we started long time ago.
I: Yes sir.
TM: Okay. Now I understand that you applied as a member of your wife’s family unit and that you don’t have any separate claims for protection visa. Is that correct?
I: No sir.
TM: Now what do you want to say to me in support of your wife’s application for this protection visa?
I: If we go back there will be difficulties.
TM: What sort of difficulties?
I: After going back there [indecipherable] again might be troubles.
TM: There might what sorry?
I: They might be troubles.
TM: Anything else that you want to say to support your wife’s application?
I: My people didn’t like them.
TM: That’s you certain. Anything else?
I: That’s all.
TM: That’s all. So you have nothing to say in support of her claim that she’s afraid to go back to India for whatever reason.
I: If we go back we have to go back to [indecipherable] near my brother and my son so if anything happens to anybody then we cannot have to go back [indecipherable]. That’s why we have come so far and hiding like that.
TM: That all?
I: That’s all.
TM: Okay. Well I have no further questions for you. I’ve spent a lot of time today talking to your wife and I didn’t find her to be a credible witness. We will close the hearing today and I will provide you my decision in writing.
The difficulties confronted by the Tribunal member become apparent by page 12 of the transcript, where the Tribunal Member commences by asking the applicant to explain why she chose to leave India. The member established that the applicant left because of threats (page 12, line 18). However, there was further questioning in order to attempt to identify who was actually making the threats, to which she responded (page 13, line 1) “The whole party, whole party.”
The Tribunal member again attempted to obtain particulars of who was threatening her but was unable to do so. The phrase “now I put to you” that the Tribunal member has used on a number of occasions through the interview appears at page 13, line 18 when the Tribunal member says “Now I put to you that you didn’t leave India with your husband, that your husband came to Australia 11 months before you, is that correct?” The applicant agreed with this, following which the Tribunal member asked why she would stay in India for a further 11 months if she had the opportunity to come to Australia.
Thereafter, as the Tribunal member questioned the applicant a number of inconsistencies began to appear in her version of events, such as the timing of threats that were made to her. An example of the difficulties with respect to answers appear at page 20 where this exchange took place (line 15 to line 23):
TM: So they are the only 2 incidents where your in-laws were, their farm was burnt and where your mother received a threatening phone call. Is that the only 2 incidents why you claiming protection here?
I: Personally I was there present I was there present when I saw these things.
TM: You were not present when the farm was burned, you told me that you were not there.
I: At that time I was in India I was not there specifically but I was in India.
It is not unreasonable to conclude that by the time that the relevant comments, of which the applicant complains, were made by the Tribunal member, the Tribunal member had heard sufficient evidence to have formed a view contrary to the credibility of the applicant. At this point, at best, the member’s conduct of the hearing changed to one of a cross-examination which certainly has a partisan appearance to it from the statements above.
Following the hearing of the matter before me, the Full Decision in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 was handed down. I had my Associate write to the parties inviting any further submissions with respect to the matter in light of the judgment in SZRUI. The first respondent made further submissions.
In determining whether or not there would be reasonable apprehension of bias it appears clear that an applicant must show more than would indicate that a reasonable bystander has a vague sense of unease or disquiet (see parag.22 of SZRUI per Flick J.) Certainly “robust, vigorous questioning” may be permitted and at times may be required in complex or significant hearings: see 4 per Allsop CJ.
Justice Flick identifies the important and pragmatic point that there is no requirement imposed upon administrative decision makers to continuously disclose a process of reasoning as it unfolds in their minds throughout the course of a hearing, for good reason as it is often a question of impressions and degree and would place an intolerable burden upon the decision makers to attempt to express their unfolding impressions and reasons, and nor would it assist the parties or the process. However, it is also important to recognise that the expression of tentative views by a decision maker may in some cases enhance the fairness of the hearing process by ensuring that a party is alerted to possible deficiencies or weaknesses in their case so as to afford them an opportunity to address those difficulties or weaknesses (see paragraph 27 per Flick J). As Flick J points out at para.31, occasional displays of impatience and even irritation do not amount to disqualifying bias. Clearly it is important to recognise that even Tribunal members will from time to time suffer from the pressure and stress of conducting hearings about such important matters as occurred here.
Importantly, as Robertson J points out at para.74 the whole of the transcript must be reviewed rather than sentences taken in isolation and the transcript must be approached from the perspective that the Tribunal had read the documentary and other material already submitted.
In SZRUI the Full Court referred to a number of frequent assertions of disbelief indicating the Tribunal member was expressing a concluded view but before the entirety of the hearing had concluded. A similar allegation can be made with respect to the Tribunal member here, stating some way through the hearing that they did not believe the applicant, were inclined to believe that the applicant invented the story, that they were not interested in answers and had concerns about the applicant’s credibility. Many of these comments taken in isolation would certainly not be sufficient to found a claim for apprehended bias. However some of the exchanges went well beyond this and in particular:
a)At page 25 (line 10 to 15):
TM: Mrs [MZYYF] I don’t believe you that your mother was arrested 3 times and spent time in jail. I put to you that I don’t believe considering that you have no details about it, you are just guessing. You are telling me that she was arrested 3 times in 2011, you don’t know when, you don’t know what time of year was that. First you said its 2, then you said 3 times. I mean, I told you at the beginning be honest with me. Tell me the truth. No, use interpreters ok.
b)Page 34, lines 1 to 3:
TM: I put to you that I don’t believe that your house was raided in 2004 by national party. I think – my – I’m inclined to believe that you invented that story – that you’re not telling me the truth. Do you want me to make comments on that?
c)The very cursory questioning of the applicant’s husband.
When considering carefully what it is about these exchanges that gives one disquiet it is apparent that the phrase “I put to you…” is indicative of the person using that phrase already having a fixed view or position. It must be remembered that this phrase is somewhat of a term of art used by the legal profession with Counsel regularly utilising it as a method of putting their client’s case to a witness (usually at the end of a cross-examination) in a formal way to ensure there can be no suggestion that the version to be given by their client in the witness box has not been squarely put to witnesses who give evidence to the contrary. In this sense, for lawyers at least, the phrase is certainly indicative of squarely challenging a witness’s evidence with factual claims to the contrary. The later remonstration “I told you at the beginning to be honest with me” followed by the imperative “tell me the truth” all indicate that the Tribunal member had at least a very strong view and was conducting the interview, at least at this point, more in the form of an interrogation than an interview by a decision maker.
The cursory nature with which the tribunal member approached the husband’s evidence, indicated that they had already formed a view about the evidence of the applicant prior to hearing any of the evidence of the husband. The evidence of the husband was certainly likely to be relevant. Whether the husband would have been a compelling witness is not something I can determine from the material before me, however it is clear that little or no exploration was made of his evidence before the Tribunal member as it appears that, by that point, the Tribunal member had a firm view contrary to the applicant’s case.
I have reflected from some time upon this matter as claims of this type are ultimately a question of overall impression, and require the exercise of a difficult discretion when considering the degree to which exchanges can be robust in hearings of this type. I am also mindful that when one reads the transcript as a whole one could easily form a very negative view of the applicant’s credibility, and that much of the material that would bear squarely upon her credibility occurs before the exchanges that are most troubling.
Ultimately however I have formed the view that the conduct of the Tribunal member in this case went beyond a degree of robustness that is acceptable before a reasonable apprehension of bias would arise. The exchange at p.25 of the Court Book is more akin to Counsel’s vigorous cross-examination when forcefully pursuing the position of an opposing litigant than that of a Tribunal member that must make a determination, albeit in the context of an inquisitorial proceeding.
In this regard I take particular heed of the statements of Chief Justice Allsop in SZRUI at paras.4 to 5 where his Honour said:
4. A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.
5. The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.
And, as Justice Robertson, pointed out at para.92:
92. In my opinion, one of the matters to be taken into account by a properly informed lay person is that there is other language available to test, vigorously or otherwise, the claims or evidence of an applicant for refugee status than by saying “I don’t believe it” or “I can’t believe it” while asserting in definite terms how those in a foreign culture would behave.
I am also very mindful of the difference between a Tribunal that must act on an inquisitorial basis to that of litigation before a Judge in open Court as Robertson J explained at para.93:
93. Also to be taken into account as ascribed to the properly informed lay person, in my opinion, is that the consequence of the proceedings being inquisitorial makes the circumstances quite different to civil litigation before a judge, where the proceedings are almost invariably in public, there are parties representing their own interests and those parties are often represented by lawyers. This means that questioning and vigorous questioning by the Tribunal is not to be measured against a standard appropriate to a judge presiding over a public hearing in a court but it also means that what may be taken as vigorous testing by a judge of submissions by counsel in a court is not a valid point of comparison when considering what is said and done by a Tribunal member in relation to a claimant’s statements or other material. Indeed, in my opinion, it is liable to be a distraction to use as a comparator what in a court setting would not give rise to a reasonable apprehension of bias.
Ultimately I am persuaded that in this case a properly informed layperson might reasonably apprehend a real and not remote possibility that there was nothing that the applicant could say or do to change the Tribunal member’s preconceived views and thus that the Tribunal member might not have brought an impartial mind to bear on the decision.
In coming to this view I have refrained from considering or expressing a view upon the credibility of the applicant’s version of events as given to the Tribunal member, although borne in mind the obvious difficulties with the applicant’s evidence prior to the relevant comments as a relevant consideration in determining whether or not the applicant ought to succeed in an application on the basis of apprehended bias.
In the circumstances I therefore allow the application and remit the matter for re-hearing by the Tribunal.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 23 January 2014
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