MZZOG v Minister for Immigration
[2014] FCCA 1901
•27 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZOG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1901 |
| Catchwords: MIGRATION – Application for review of a decision by the Refugee Review Tribunal – application of Guidance on the Assessment of Credibility guidelines – failure by Tribunal to adjourn proceedings – allegation Tribunal took into account irrelevant considerations – alleged apprehended bias – writs issued. |
| Legislation: Convention Relating to the Status of Refugees, Article 1A(2) Migration Act 1958 (Cth), ss.422B, 427(1)(a), 499 Guidance on the Assessment of Credibility, cls.1.16, 1.17 |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 |
| First Applicant: | MZZOG |
| Second Applicant: | MZZOH |
| Third Applicant: | MZZOI |
| Fourth Applicant: | MZZOJ |
| Fifth Applicant: | MZZOK |
| Sixth Applicant: | MZZOL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1095 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 13 May 2014 |
| Date of Last Submission: | 13 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 August 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr M Belmar |
| Solicitors for the Applicants: | Maddocks Lawyers |
| Counsel for the First Respondent: | Mr T Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
An order in the nature of a writ of certiorari issue directed to the Second Respondent quashing the decision made on 26 June 2013.
An order in the nature of a writ of mandamus issue directing the Second Respondent to hear and determine the application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1095 of 2013
| MZZOG |
First Applicant
| MZZOH |
Second Applicant
| MZZOI |
Third Applicant
| MZZOJ |
Fourth Applicant
| MZZOK |
Fifth Applicant
| MZZOL |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the
Refugee Review Tribunal (“the Tribunal”) of 26 June 2013 in which the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants’ protection visas.
The Applicants seek orders:
1. That the application be allowed.
A. That the decision of the Second Respondent be set aside.
B. That the matter be remitted to the Second Respondent for consideration in accordance with the law.
2. That a writ of certiorari directed to the Second Respondent be issued, quashing the decision of the Second Respondent handed down on 26 June 2013.
3. That a writ of mandamus directed to the Second Respondent be issued, requiring the Second Respondent to determine the Application for review of the delegate’s decision made on
26 June 2013, according to law.
4. Costs.[1]
[1] Amended Application under Migration Act filed 11 March 2014 at p.5.
Background
The Applicants are a family comprising father, mother and
four children, all of whom, with one exception, are adults. They are nationals of Pakistan. The father (the “Second Applicant”) arrived
in Australia on a visitor visa on 18 September 2010. The mother
(the “First Applicant”) and the children arrived on 25 February 2011,
also on visitors visas.
The family applied for protection visas on 18 April 2011.
The application was refused on 3 October 2011 by a delegate of the Minister. On 28 October 2011, the Applicants applied to the Tribunal for a review of that decision.
The Tribunal held two hearings, one on 15 May 2012 and the other on 12 March 2013. The Applicants were represented by a migration agent at the time of the first hearing but were unrepresented at the
second hearing. On both occasions they were assisted by an interpreter. On 26 June 2013, the Tribunal affirmed the delegate’s decision and on 17 July 2013, the Applicants lodged this application for judicial review.
The Tribunal’s Decision
The health and mental state of the First Applicant was an issue before the Tribunal. The Tribunal was provided with information concerning the First Applicant’s health from Pakistan and also a report from a psychiatrist in Australia which indicated that she had suffered from depression since 2008 and a “very significant post-traumatic stress disorder”.[2] There was also a report from a psychologist who referred to the First Applicant experiencing “passive suicidal ideation”.[3]
The Tribunal noted that she suffered from epilepsy, diabetes and high blood pressure, shortness of breath and chest pain.
[2] Court Book filed 7 February 2014, p.409 at para.33.
[3] Ibid, p.410 at para.35.
The Tribunal recorded that:
At both Tribunal hearings the [First] applicant had … seizures … at the first hearing before it had commenced and at the second after the Tribunal told the [First] applicant that it did not believe aspects of her account.[4]
The Tribunal found the First Applicant:
able to engage and respond to its questions, including about her business, but her evidence about aspects of her experiences was confused and sometimes contradictory.[5]
[4] Ibid, at para.36.
[5] Ibid, at para.37.
The Tribunal summarised the First Applicant’s claims as follows:
· in about 2008, when she began dealing with male customers, she was warned by female customers that Taliban people were keeping an eye on her and she was told that they thought she had been charging interest which she had not done, only commission;
· she received threats of physical harm and kidnapping of her and her children by the Taliban and their supporters;
· the first warning came on the applicant’s son [omitted] birthday in or around December 2008: he and friends were playing western music and a group of men wearing white clothes, holding prayer beads and with big beards … came over to the applicant’s house and accused them of adopting western culture and threatened to punish them according to Sharia law;
· the applicants went to her relative’s house because the applicant was so scared for their safety;
· after this incident the Taliban became more and more interested in the applicant and her family and began to target and threaten them a lot. Taliban or Taliban sympathisers would … just turn up at their house uninvited, sometimes twice a month, sometimes twice a week;
· during one of the visits the applicant was warned by the men who came that she had to shut down her business but she did not do so;
· the applicant moved house a few months after her son’s birthday and it was stated that they moved house three times but the Taliban found out that the family had moved and the warnings continued culminating in a “night letter”, threatening the applicant which was put under the door …;
· in early 2010, men from the Taliban also came to the applicant’s house in the evening and stood on the front porch banging on the front door and yelling for her and her children to come outside. They would yell that the applicant and her daughters were whores and threaten to throw acid on their faces and shave their heads. This happened on two or three occasions;
· at around the same time, people started throwing stones at the house in the middle of the night, around 4 or 5 times. It happened at about 2 or 4 o’clock in the morning …;
· the applicant claims that she called the police to report these matters but by the time they came some two hours later the people who were throwing stones had left … The applicant states that another time, she called the police but did not know if they came to look around the house and was too afraid to go outside and check. The applicant states that after that she ‘gave up on the police because it was obvious they were not interested in helping or protecting her family’; and
· the applicant prepared to move to Islamabad to escape the threats and intimidation. While preparing to leave, she claims that she received some threats from Taliban saying “wherever you are, whatever city you go to, we will find you”. She claims that she gave up hope of trying to leave and live elsewhere in Pakistan.[6]
[6] Court Book filed 7 February 2014, pp.410-412, at para.39.
Two of the First Applicant’s daughters also gave evidence to the Tribunal, referring to matters covered by the First Applicant’s statement and also to incidents which they had themselves experienced. The First Applicant’s sons also wrote to the Tribunal claiming that they had been scared to go out for fear of being kidnapped and made to do suicide bombing which they said is common in Pakistan.
The First Applicant gave the reasons for the Taliban’s interest in her and her family as the fact that:
·[The First Applicant and her children] do not comply with strict Islamic practices including wearing head coverings; having western hairstyles, using nail polish and makeup, listening to western-style music; and wearing western-style clothes;
·the applicant’s business selling western style clothing and goods and jewellery and makeup and her interaction with male customers;
·the Taliban confused her taking commission on sales and her offering credit to customers with charging of interest;
·because her husband worked for a foreign company in the UAE, he was regarded as being an instrument of American imperialism and attributed with an ‘adverse political opinion’;
·the [Second ]applicant husband originating from the Federally Administered Tribal Areas (FATA), a dangerous area which the applicant states is full of fundamentalists and him living abroad for so long would be seen as a great dishonour to his country and to Islam;
·her son … coming to Australia and marrying here …;
·the Taliban found out about the applicant’s other children’s western-style schooling in Peshawar and abroad;
·the applicant and her children were vulnerable because they were for most of the time living without the applicant father present as the male family head; and
·collectively these factors led the applicant and her family to be seen to have turned away from Islam and to have become western and hold a pro-western political opinion.[7]
[7] Court Book filed 7 February 2014, pp.412-413, at para.43.
The First Applicant also claimed that a number of members of her family had been killed, or gone missing, in Pakistan.
The Tribunal referred to the First Applicant’s mental and physical health conditions but found that it was satisfied that the First Applicant was able to have, at the hearing, a genuine and meaningful opportunity to put her claims. The Tribunal accepted a number of the statements made by the First Applicant concerning her experience in operating a business in Peshawar and her and the Second Applicant’s commitment to providing their children with a high quality Western-style education. The Tribunal also accepted statements made by the First Applicant’s daughters concerning an incident in 2010 when they heard someone in the house and locked themselves in the bathroom for two to three hours. The Tribunal also accepted that, later in 2010, the Fourth Applicant had been attacked when she went to the bazaar with her uncle.
The Tribunal considered that, central to the First Applicant’s claims, was that, from December 2008, she and her children were harassed and threatened by the Taliban and like people. The Tribunal accepted that harassment over music being played at the son’s birthday could well have occurred. The Tribunal, however, came to the view that there had been significant embellishment and exaggeration of the
First Applicant’s claims about the nature and extent of the interest religious extremists took in her and her family.
The Tribunal rejected a number of the claims made by the Applicants on the basis that they had been exaggerated. In particular, concerns about the First Applicant’s account of what happened caused the Tribunal to consider that the ‘night letter’ which was said to have been put under the Applicants’ door from the Taliban, demanding that the First Applicant shut the business or her sons would be killed, was of little weight. The Tribunal gave reasons for reaching that conclusion.[8] The Tribunal was also of the view that the Applicants had been living in Peshawar for a long time, and considered that the weight of the evidence indicated that the family was there until late 2010, with the First Applicant engaging in trading and the children going to school/university and not grooming or dressing in the conservative Islamic style.
[8] Court Book filed 7 February 2014, p.432 at para.118.
The Tribunal also rejected claims made by the Second Applicant that people in Abu Dhabi had told him that the Taliban were looking for him and did not accept that the profile and activities of him, or his family, were of a kind likely to be the focus of attention from the Taliban. The Tribunal did not accept the claims of continuing harassment, threats and intimidation, with escalating violence. Further, the Tribunal did not accept that, on the day the First Applicant and her family were due to move to Islamabad, Taliban people came to tell them that wherever they went, they would find her and kill her.
The Tribunal accepted that the First Applicant and her children may have been harassed by religious conservatives, but did not consider that what happened constituted serious harm, and found the account of what occurred to have been exaggerated and embellished. It was the Tribunal’s assessment that the profile of the family’s activities said to have angered the Taliban was not of a kind to provoke them to threaten to pursue the First Applicant and her family wherever they were, or to say that they would kill her after mentally torturing her. The Tribunal accepted that relatives of the family had been killed in 2010, but found as far-fetched the claim that what happened to those people was because of their relationship to the First Applicant and her family.
The Tribunal accepted that there was a real chance of the Applicants coming to serious harm in Peshawar on account of the Convention reasons of religion, political opinion or membership of various formulations of a particular social group.[9] It made those findings based on the First Applicant and her children’s non-compliance with strict Islamic practices about dress and grooming and the types of music the children listened to which could be perceived, in an area such as Peshawar, as anti-Islamic and place them at risk of harm by extremists.
[9] Convention Relating to the Status of Refugees, Article 1A(2).
The Tribunal did not accept that the Second Applicant having worked in the United Arab Emirates (UAE) for some 30 years would lead him to be regarded as an instrument of “American imperialism and attributed with an ‘adverse political opinion’”,[10] presumably against religious extremism and the Taliban, or an anti-Islamic opinion. Further, the Tribunal did not accept that the Second Applicant originating from the Federally Administered Tribal Areas (“FATA”) by itself, or in combination with him having worked abroad for a long period of time, or because of what his wife and children had done in respect of the business or the children’s education, had any implications for the chance that he or his family may face harm in Peshawar. Nor did the Tribunal accept that the First and Second Applicants providing a Western-style education for their children, or the gossip about the marriage of their son to an Australian girl, gave rise to a real chance that the Applicants would face harm from the Taliban and like extremists in Peshawar.
[10] Court Book filed 7 February 2014, p.413, at para.43.
The Tribunal considered that the Applicants could relocate to Islamabad where they would not face a real chance or any appreciable risk of persecution for the reasons claimed by the Applicants.
The Tribunal assessed that the security situation in Islamabad was relatively settled, and that the First Applicant’s mental and physical health conditions did not make it unreasonable for her and her family to settle in Islamabad as they had planned to do before deciding to come to Australia. The Tribunal assessed that the Second Applicant could seek employment in Pakistan to support the family and to provide for the education of the children. The Tribunal further did not accept that the First Applicant would be killed if she were to open a boutique in Islamabad, although her health issues might prevent her from operating a boutique by herself.
The Tribunal also looked at the Applicants’ circumstances, and considered that its findings of fact and its assessment in accordance with the Convention criteria about the question of relocation were relevant to the assessment against the complementary protection criteria. It determined that there was not a real risk that the Applicants would suffer serious harm in Pakistan and that there were no substantial grounds for believing that the Applicants would face a real risk of significant harm in Pakistan.
The Grounds for Review
The Applicants submitted four grounds for review:
1. The Second Respondent’s delegate made an error of law in failing to take into account a relevant consideration, namely the “Guidance on the Assessment of Credibility”.
2. The Second Respondent’s delegate made an error of law and failed to accord procedural fairness to the applicants in hearing and determining the application, in that the conduct of the second hearing gives rise to a reasonable apprehension of bias.
3. The Second Respondent’s delegate made an unreasonable decision and an error of law in failing to adjourn and relist the second hearing when the primary applicant became ill during the second hearing. As a consequence of the failure to adjourn the second hearing the applicants were denied a fair hearing.
4. The Second Respondent’s delegate made an error of law in taking into account an irrelevant consideration with respect to the text of the “Night Letter” and in failing to give reasons for the finding that it was fabricated.[11]
[11] Amended Application under Migration Act filed 11 March 2014, at pp.2-5.
The Applicant’s Submissions
The Applicants presented both written[12] and oral submissions. In the oral submissions, the focus was on grounds two and three which the Applicants submitted were both part of the one factual matrix.
The particulars given for ground two related to the fact that, during the second hearing, according to the Applicants, the First Applicant was confronted by the Tribunal in a manner that could be perceived as overbearing and that the conduct of the Tribunal during the second hearing gave rise to an apprehension that the Tribunal Member had come to a final and concluded view about key matters in issue after the first hearing, and prior to the second hearing. Further, the Applicants submit that the Tribunal expressed concluded views during the second hearing with respect to the First Applicant’s fear of persecution. While ground two relates specifically to what occurred on the second hearing date, the Applicants submit that it needs to be considered in the context of what happened at the first hearing.
[12] Applicant’s submissions filed 11 March 2014.
The Applicants referred the Court to the decision of the High Court
in Re Refugee Review Tribunal & Anor; Ex parte H & Anor
[2001] HCA 28 (“Ex parte H”) and, in particular, to paragraph 26 of the judgment:
In reply to the Tribunal's statement that it did not believe his claims, the male prosecutor asserted that his wife and he, himself, knew what had happened. A short exchange followed in which the Tribunal informed him that:
“I've found your evidence to be most unconvincing. It's an improbable story and you've told it very badly”.
There was a further short exchange in which the male prosecutor said that he and his wife were hoping to go and hide in India to escape from their problems. The Tribunal asked if there was anything else which he wished to add, to which the male prosecutor replied:
“If you don't believe us, no.”
The hearing then concluded, the Tribunal's final remarks being:
“All I have is a power to make a decision on the facts that I think are true and I'm afraid to say, Mr [H], I don't think that you've told me the truth. I think that you've fabricated the story and it's most unconvincing. So that's the basis upon which I'm going to have to make a decision, Mr [H]. Good luck.”
The High Court then went on to discuss the test for apprehended bias in an administrative hearing. It went on to say:
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.[13]
and further:
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.[14]
[13] [2001] HCA 28 at para.28.
[14] Ibid, at para.30.
The Applicants also took the Court to a decision of the Full Bench of the Federal Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH”) and, in particular, to paragraph 21 of that decision:
The enquiry is not directed to the personal thought processes of the decision-maker. It is directed to his or her conduct “objectified” through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia at 564; Johnson v Johnson (2000) 201 CLR 488, 493. It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality.
The Applicants submit that the real nub of the question is this: at the time that the impugned comments are made, has the decision-maker closed their mind? Has the decision-maker decided upon a course of action which means that they cannot be persuaded away from the view of the world that they have already reached? That is what it really comes down to. In this matter, the questions could be posed as follows:
·
At the time the decision-maker made the comment at the
second hearing, was it all over?
·Was there anything else that the Applicants could have done to convince the decision-maker otherwise?
·Is it a lack of impartiality, or is it a closed mind?
The Applicants referred the Court to particular exchanges in the transcripts of the two hearings[15] between the Tribunal Member and the
[15] Affidavit of Christopher Michael McDermott filed 2 April 2014, at Annexures “CMM-1” and “CMM-2”.
First Applicant through the interpreter. The Court was taken to
page 12 of the transcript of the first hearing and to the following exchange:
Member: Now first of all how old are you now that’s quite easy?
Interpreter: I don’t remember.
Member: You don’t remember?
Interpreter: Maybe I’m close to 40.
Member: I think maybe you’re 43 actually but I mean like, you know, from your passport it seems that you’re 43?
Interpreter: She says I don’t remember because I didn’t count.
Member: Well we certainly count in Australia, if you come to live here you’ll be counting probably. I wanted to ask you about your brothers and sisters.[16]
[16] Ibid, Annexure “CMM-1”, p.12 at lines 21-30.
The Applicants submit that, by itself, that exchange is unremarkable but the transcript then goes into a discussion about where the
First Applicant was living and whether it was in Phase 6 or Phase 7 of a city in Peshawar. After a short break, the Tribunal then goes on:
Member: All right, Mrs [omitted]. How are you feeling so far?... I wouldn’t want you to be deceived, but anyway we’ve got a long way to go. All right. Now, what I wanted to ask you about now is where you’re from – is about Peshawar and Hayatabad?
Interpreter: Peshawar and Hayatabad is the same place.
Member: Yes?
Interpreter: Like Melbourne, Victoria
…
Member:Yes. Now, I’ve read something that says Hayatabad is what we call posh. I have – did you read that?
Ms Taylor:You might have to break down the word “posh” I think.
Member: Yes. Nice, very nice. A nice area of Peshawar?
Interpreter: It’s a beautiful place.
Member: It’s fairly modern, is it?
Interpreter: It’s not modern.
Member: Not modern. It’s beautiful?
Interpreter: Beautiful green.
Member: Green. I see, green. Unlike some parts of Peshawar which don’t look green at all when you look at them on the Internet?
Interpreter: This is clean place [sic].
Member: A clean place, all right. Very well. Because when you look at the parts of the middle of Peshawar, you know where the main markets are and so on, it’s not green at all?
Interpreter: No, it’s not.[17]
[17] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.31 at lines 4, 7-12, 15-29.
The Applicants submit that the use of expression ‘posh’ starts to demonstrate, perhaps, some view that the decision-maker has of the First Applicant: You are living in this particular part of Peshawar that is very nice. It’s posh. What are you doing here? Why are you making application for refugee status?
The Applicants also referred to an exchange about the claim with respect to the harassment of the Applicants by the Taliban:
Member:
Yes, that’s all right. All right. So now thinking it seems to me that you had probably – you’re claiming to have had about 20 to 25 or so visits from these extremists over about two years.
Does that sound right?
Interpreter: I’m not – I’m not sure. From what I’m told (indistinct) I’m not sure how many times they came.
Member:Well, you said that you are. I mean, you’ve said that they came – they came sometimes twice a week, sometimes twice a month, over more than two years?
Interpreter:
Yeah, that’s correct. They were throwing stones
at ---[18]
and further down:
Member: All right. And were they ever the same people or always different?
Interpreter: Different people.[19]
[18] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.45 at lines 8-17.
[19] Ibid, p.45 at lines 29-30.
With respect to the ‘night letter’, the Tribunal stated:
Member:Yes, yes, all right. Very well. All right. Well, look, I’ll have to – I have to tell you that I’ll have to think very carefully about whether or not I think this is a genuine letter. And when I look at that I’ll look at all of the evidence and then I’ll consider (indistinct) I believe this. One of the problems that people from Pakistan can have is that you can get a document, you know that virtually shows anything, from Pakistan. And I’m also going to have to think about it carefully – in the context of what you’ve said about the Taliban coming over and over and over again for nearly two years, but really nothing happened to you. If they were – if they were ---?
Interpreter: Yeah, all the time. Yeah, she said that it was all the time in the two years the Taliban came they threatened me and also – they also were give me back that (indistinct) they abuse me all the time and all the time those come to my house. It was – affect me a lot emotionally.
Member:Yes, but I’m still going to have to think about whether I find that plausible given that they kept on doing it over and over again for two years. They are not patient people?[20]
[20] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.46 at lines 29-31 and p.47 at lines 1-20.
Then, at pages 72 and 73 of the transcript, the Tribunal states:
I’m going to have to think carefully about whether I actually believe that – some of the things that you’ve told me. I think it is (indistinct) relevant that you claim to have got all these threats and attacks for a couple of years yet really nothing happened and I just – I think that – I think that does perhaps suggest that there was a serious intention to kill you or harm you or stone you or do all those other horrible things. That might mean as I’ve already explained, that the documents that you’ve given me purportedly from the Taliban, don’t have very much weight or aren’t very – won’t – won’t be very significant in my decision. Look Peshawar is a really dangerous place, you’ve got girls who don’t like to wear – who do not want to practice, you know, don’t want to do traditional Islamic dress and lifestyle. Now I think that the situation elsewhere in Pakistan, particularly in Islamabad, we might as well talk about Islamabad because that was on your agenda, is rather different. That’s not to say bad things don’t happen there, but I have to look at whether there’s a real chance that that kind of bad thing could happen to you, and I – I think that relocation to Islamabad may well be something you could do as you planned. I don’t actually believe that the Taliban – I don’t believe that the Taliban – well I think that it might be for you. I do not – listen to me for a minute, all right, and then you’ll be able to say anything else. I don’t believe that the Taliban came and said, “Oh we know you’re going to move and we’re going to catch you everywhere through our network”. I don’t believe that.[21]
[21] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.72 at lines 13-31 and p.73 at lines 1-12.
The Applicants submit that it is at that point that the decision-maker is overstepping the mark because this is day one of the hearing and only one of the Applicants has been heard from. The decision-maker is not saying ‘what if I come to a view that I do not believe’ or ‘my present thinking is that I am not inclined to believe that evidence’; it is put, fairly and squarely, “I don’t believe that”.[22] In the Applicants submission, the decision-maker had moved from impartiality to a closed mind and has now moved on to considering that the Applicants had a safe option, which was relocation to Islamabad.
[22] Ibid, p.73 at lines 11-12.
At page 73 of the transcript, the Tribunal goes on:
It’s [Islamabad] a cosmopolitan, sophisticated city. So that’s going to be the focus of my consideration, is whether or not you could reasonably move. And when I do that, the law says I have to look at two things, or my understanding of the law is that I have to look at two things. I have to see whether or not there’s a real chance that you’d be persecuted in Islamabad, and if I think not, then I have to look to see if it’s reasonable for you to go and live there.[23]
[23] Ibid, p.73 at lines 17-25.
At page 75 of the transcript, the Tribunal continues:
Member:All right, and I – and that – that will be the relocation will be appropriate (indistinct) my thinking. Yes it is. (Indistinct) credibility. Credibility. (Indistinct). Credibility or reliability (indistinct). The credibility of the sustained interest of the Taliban for all that time. Nothing happening, and credibility of – that credibility really, to the extent to which the targeting did occur, but I accept that, you know, looking forward into, you know, to Peshawar. I think there is a chance (indistinct), you know, (indistinct) that, so – but- but it’s still relevant because it goes to whether or not there’s a chance that they’d be targeted (indistinct). I think?
Interpreter: She said that this mean [sic] you are not accepting my own evidence or documents which I forwarded. The reason I know all Pakistan, I know Islamabad and I know (indistinct) the whole Pakistan is very dangerous country.
Member:Well I think that there are parts that are very dangerous, but I – I don’t – I don’t – I certainly don’t accept the Taliban came and said, “Oh we know you’re moving and we’re going to find you wherever you are because we’ve got networks everywhere”. I don’t believe that, all right. And I think the other thing that I – I will have to consider carefully are those documents in the context of all of the evidence. So I might – I might find that (indistinct)?
Interpreter: (Indistinct)
Member:I don’t think that – I don’t think that it’s practical – so I – I do accept that Peshawar is a very dangerous place…[24]
[24] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.75 at lines 15-31 and p.76 at lines 1-12.
Again, the Applicants submit that the Tribunal is expressing a concluded view.
At the second hearing, the Tribunal Member explains why everyone is there and explains the role of the Tribunal. Although the Member explains that the first thing the Tribunal had to do was determine if the Applicants were refugees, in the Applicants’ submission, by this time, the Tribunal had already decided that the Applicants were not refugees. There is then a discussion about the First Applicant’s health. There was a statement by the First Applicant that she had had an MRI for epilepsy to which the Tribunal responded:
Member:So I thought you didn’t have epilepsy. I thought you had these seizure things but not – they weren’t epilepsy but I think you’re having tests now to see if it is?
Interpreter: Yeah, I have epilepsy and also (indistinct).[25]
[25] Ibid, Annexure “CMM-2”, p.6 at lines 24-28.
The Applicants submit that referring to the First Applicant’s health as “these seizure things”[26] was at least unfortunate when the Tribunal had evidence concerning the First Applicant’s health. The discussion about the First Applicant’s health ends with the Tribunal saying:
Member:I mean – yes. Anyway, we’ll see. We might need to, we’ll see how we go. All right. As I said earlier, one of the things that I said last time was that I thought Peshawar was a fairly dangerous city?
[26] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.6 at line 25.
…
Member: … I have read information – copious information which indicates that the security problems around in Khyber Pakhtunkhwa and Federally Administered Tribal Areas, FATA, where your husband’s from and in Balochistan is much, much worse than elsewhere and you know, just the fact that there are bomb blasts and terrorist attacks in other parts of the country is not enough to make you a refugee. All right?
Interpreter: In all around Pakistan (indistinct). If the person is targeted, they are not safe in any part of Pakistan.
Member:All right well I think we talked last time about whether or not you were targeted and I frankly didn’t really believe that you were. At least – at least not to the extent that you described?
Interpreter: Why I’m not targeted?
Member:Because I didn’t believe you, all right. I think that – I think that some of the kind of harassment you described is entirely plausible. That I didn’t believe – I didn’t ---?
Interpreter: Yeah, because these people – that people they could knife me and also in Pakistan they are giving money to the people to kill that person.
Member:Well I didn’t actually believe that you have been targeted to the extent you described. I didn’t believe the night letter under the door. I didn’t believe it. I thought it wasn’t genuine, a made up letter, but leaving that aside –[27]
[27] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.9 at lines 8-31 and p.10 at lines 1-19.
The Applicants submit that, in that exchange, the Tribunal is expressing a concluded view. There is no other evidence the Member is willing to hear. The First Applicant responds:
Interpreter: Yeah because she says that nobody made that letter. That’s – the letter has come from my door.
Member:
I didn’t believe it but – but leaving that aside, we don’t need to go over that today. We’ve already taken a lot of evidence on that. What I have to look at is whether or not you and your family could live in Islamabad. That’s where I’m focusing on,
all right?[28]
[28] Ibid, p.10 at lines 20-26.
The Applicants submit that that is enough for the Court to find that there is a basis for reasonable apprehension of bias. Further at page 13 of the transcript, the Tribunal says:
All right. All right, now I don’t really need to ask you anything more but it must be plain to you now that I am looking at not approving you as a refugee and finding that you could live safely in Islamabad?[29]
[29] Ibid, p.13 at lines 16-19.
The Applicants submit that the decision-maker had not heard all of the evidence, including more witnesses that were going to be called that day, but had already determined the matter. The First Applicant then became unwell. There was then some discussion about adjourning, getting a first aid person and about whether the First Applicant needed an ambulance. There was then a short adjournment. At page 19 of the transcript, the Tribunal says:
All right, well as I said earlier I don’t actually think you were targeted for serious harm by the Taliban.[30]
[30] Ibid, p.19 at lines 4-5.
Again, the Tribunal expresses a concluded view. After hearing from the children, the following exchange occurs:
Voice:… Yes, we have been given threats. We have been sent a letter.
Member:Yes but I don’t believe that the letter is genuine and I think I have to look carefully about whether I think you were actually threatened, your lives.[31]
[31] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.26 at lines 13-17.
The Applicants submit that, again, the Tribunal is expressing a concluded view. On at least four occasions, the Tribunal expresses a concluded view about the letter not being real. Two or three times, the Tribunal expresses a concluded view that there was no targeting by the Taliban. At the end of the second hearing, the Tribunal states:
Well I’ve told you about the party [sic] of the issues that are important in relation to my consideration of your case, and particularly the issue of whether you could settle in Islamabad as you’d planned to do before you came to Australia.[32]
[32] Ibid, p.31 at lines 7-11.
The Applicants referred the Court to the decision of Riley FM
(as she then was) in MZYSQ v Minister for Immigration & Anor
[2012] FMCA 661 (“MZYSQ”) and, in particular, to paragraph 122 where her Honour set out the approach she took to considering the matter.[33] The Applicants submit that that is the approach the Court should take in this case.[33] [2012] FMCA 661, at p.35.
With respect to ground three, the Applicants submit that, pursuant to s.422B of the Migration Act1958 (Cth) (“the Act”), the Tribunal must act in a way that is fair and just. Further, pursuant to s.427(1)(a) of the Act, the Tribunal can adjourn from time to time. In the present case, the Member had the power to grant an adjournment even if one was not requested. The Member should have evaluated all of the facts before determining whether to proceed with the hearing. The incident occurred in the hearing room and even while it was occurring,
the Member comments, “I’m not going to adjourn”.[34]
[34] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.14 at line 5.
The Applicants submit that the failure to adjourn, in circumstances where an applicant became unwell, was an unreasonable decision in the context of the case.
With respect to ground one of the application, the Applicants submit that the Tribunal failed to afford the Applicants a fair hearing by failing to take account of a relevant consideration, being the Guidance on the Assessment of Credibility (“the Credibility Guidelines”).
The Applicants submit that the decision in M100 of 2004 & Anor v Minister for Immigration and Citizenship & Anor [2007] FMCA 829 (“M100 of 2004”) can be distinguished on at least two bases:
·
First, the Tribunal averted to the existence of the
Credibility Guidelines and purported to apply them; and
·Second, there can be no doubt as to the date on which the Credibility Guidelines were promulgated and whether or not they applied.
The Credibility Guidelines are published by the Tribunal and it should be implied that the Tribunal is required to apply the
Credibility Guidelines in order to ensure that an applicant is afforded a fair hearing.
The Applicants submit that the Tribunal failed to apply cls.1.16 and 1.17 of the Credibility Guidelines which relevantly provide that
“[a] member should maintain, and be seen to have, an open mind”and “… the Tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weakness does not result in the applicant being overborne or intimidated” (original emphasis).[35]
[35] Applicant’s submissions filed 11 March 2014, p.3 at para.11.
With respect to ground four of the application, the Applicants submit that the Tribunal took into account an irrelevant consideration, being the polite tone of the ‘night letter’. The Tribunal, in determining that the letter was fabricated, found that it was difficult to
accept that a genuine Taliban letter would use the expression
“[k]indly advising you to close it[the boutique] in one months [sic] time”.[36] The Applicants submit that, in the context of the letter containing a death threat, it is irrelevant to take into account that the letter contains a polite phrase.
[36] Court Book filed 7 February 2014, p.411, at para.39.
The First Respondent’s submissions
The First Respondent agreed that the approach taken by Riley FM in MZYSQ was the best approach to determining the issue of apprehended bias and, in particular, stressed that the Court needed to consider the passages referred to by the Applicants in the context of the hearing as a whole and, in particular, by listening to the hearing recordings[37] in order to determine the tone, as well as the words, used.
[37] Affidavit of Christopher Michael McDermott filed 2 April 2014, at Exhibit “CMM-1”.
The First Respondent referred the Court to the decision of the
Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and, in particular,
to page 591 of that decision where the Full Bench said:
The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it.
What the Tribunal Member was doing was very fairly and very properly taking the First Applicant to the points that, at that time,
she considered might be decisive when she came to make her decision. It is not apparent that the Tribunal was indicating that she was unable to be persuaded. In compliance with the rules of procedural fairness, the Member expressed her reservations about the genuineness of the ‘night letter’ and invited comment on same; she was entitled to have formed a preliminary view on the issue.
The First Respondent conceded that it was unfortunate that, in the second hearing, the Member did not preface the statements she made with something like, ‘though I have not reached a final view’ or
‘one matter which might be significant in my evaluation is …’ but its absence does not change the substance of the exchange. Nor, in the First Respondent’s submission, would it move the fair-minded lay person to the relevant apprehension.
Given the discussion at the first hearing, the comment that, “we don’t need to go over that today”[38] should be seen in the context of the Tribunal merely attempting to focus attention on the matter then being considered; that of internal relocation. As Gleeson CJ said in
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam(2003) 214 CLR 1:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[39]
[38] Ibid, Annexure “CMM-2”, p.10 at lines 22-23.
[39] (2003) 214 CLR 1, p.14 at para.37.
With respect to the issue of the Tribunal Member laughing during one of the exchanges, the First Respondent submits that, while the laughter was unfortunate, it was more likely, in the context, to be nervous or involuntary, rather than derisive or dismissive laughter.
The First Respondent points out that the law on apprehended bias
in decision-making takes account of human frailty in
decision-makers.[40]
[40] See SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [91]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [81]; MZYSQ v Minister for Immigration & Anor [2012] FMCA 661.
In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”), there were some extremely
robust exchanges between the Tribunal Member and the applicant, much more extreme than the exchanges in this matter. In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, Kenny J, in the context of considering what would not constitute a reasonable apprehension of bias, made the following observations:
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.[41]
[41] (2003) 131 FCR 102, pp.126-127 at para.81.
The First Respondent submits that, if the Court examines the transcript as a whole and listens to the tone of the recording, an objective observer would not reach the view that is contended for by the Applicants.
With respect to ground one, the First Respondent submits that the Credibility Guidelines are an internal guidance document published by the Tribunal for its own use. It is not a binding direction of the type contemplated by s.499 of the Act. The document is self-evidently ‘general guidance’ and there is no basis to distinguish the current case from M100 of 2004 or SZMDU v Minister for Immigration & Anor
(No 2)[2008] FMCA 1139. Further, the Applicants point to no actual non-compliance on the Tribunal’s part with the Credibility Guidelines.
With respect to ground three, the First Respondent accepts that the Tribunal has a discretion to adjourn a hearing. The Applicants would need, however, to convince the Court that the Tribunal, by not granting an adjournment that was not sought by the Applicants, denied them the opportunity to present their case.[42]
[42] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, p.14 at para.50.
The Tribunal considered an adjournment and did adjourn for a short period. After the hearing resumed, the First Applicant continued to participate meaningfully; she did not seek an adjournment and nor did anyone else on her behalf. There could be no suggestion that her “condition impaired in any substantial way [her] capacity for rational decision-making in [her] own interests so far as the presentation of [her] case was concerned”.[43]
[43] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, p.581 at para.15.
The Tribunal explicitly took into account the physical and mental health of the First Applicant in making its decision. The contention that the failure of the Tribunal to adjourn deprived the Applicants of a fair hearing is not supported by the facts.
The First Respondent submits that, with respect to ground four,
the complaint is misconceived. Since the Applicants submitted the ‘night letter’ in support of their claim, it cannot have been irrelevant to the evaluative function of the Tribunal to consider its genuineness. Issue is really being taken with the Tribunal’s findings with respect to the letter. The Tribunal took into account not only the phrase referred to by the Applicants, but also:
·Its general assessment of the First Applicant’s credibility;
·The objective unlikelihood of such a letter being written; and
·The ease with which such documents could be forged,
in forming its view of the ‘night letter’.
Conclusions
I am satisfied that the contentions of the Applicants with respect to ground one of the application raise nothing to persuade me that the determination of Riley FM (as she then was) in M100 of 2004 is not applicable to the circumstances of this case. In that matter, her Honour made the following observations with respect to the predecessor Credibility Guidelines:
The credibility guidelines were published by the Tribunal itself. However, that does not mean that the credibility guidelines bind a particular Tribunal member in making a decision about a particular case. The credibility guidelines begin with the words, “This paper sets out general guidance concerning the assessment of credibility by” the Tribunal. It contains statements of general principle rather than directions on the particular decision that should be made in a case having particular features.[44]
And further:
In my view, the Act does not expressly or impliedly require the Tribunal to have regard to the gender guidelines or the credibility guidelines. The gender and credibility guidelines consist of statements of general principle and educational guidance about matters including the demeanour of the Tribunal. I do not perceive anything in the Act that expressly or impliedly requires the Tribunal to consider guidelines of that nature, such that a failure to do so would vitiate the Tribunal’s decision.[45]
[44] [2007] FMCA 829, pp.51-52 at para.96.
[45] [2007] FMCA 829, p.53 at para.102.
To the extent that the Tribunal failed to follow the
Credibility Guidelines, and I make no findings on that issue, I am satisfied that it was not mandatory for the Tribunal to follow them and a failure to do so would not vitiate the Tribunal’s decision.
Turning to ground three of the application, the principles concerning legal unreasonableness were considered by a Full Bench of the
Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1. At paragraphs 43 to 52 of that judgment,[46]
the Court gives consideration to those principles, being:
·The relationship between the presumption that Parliament intends an exercise of power to be reasonable and the implication that an exercise of power is conditioned by the obligation to afford procedural fairness;
·The reasons given for an exercise of power; and
·The statutory requirements of a Tribunal exercising such power.
[46] [2014] FCAFC 1 at pp.10-15.
With respect to the interaction between the obligation of a Tribunal to afford procedural fairness and the standard of legal reasonableness, the Court said:
In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case.[47]
[47] Ibid, p.14 at para.50.
The purpose of the review is to give the applicant a meaningful opportunity to present their case. In this matter, it is clear that the
First Applicant experienced some type of medical incident.
The Tribunal Member first asked the First Applicant if she wanted one of her daughters. She did, at that stage, say “I’m not going to adjourn, we’ll just keep going”.[48] The Member then asks, “[d]o I need to get a first aid person?” and then, “[n]ow A and H, if I need to get an ambulance or something, you will tell me?”[49] One of the
First Applicant’s daughters, presumably, says, “… if she doesn’t get swollen in five to ten minutes, then we’ll see”.[50] There is then someone saying “sorry”[51] to which the Member responds, “[d]on’t apologise at all. We just need to make sure that she can – I think probably adjourn. It’d be good to get a first aid person here”.[52]
[48] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.14 at lines 5-6.
[49] Ibid, at lines 11 and 14-15.
[50] Ibid, at lines 17-18.
[51] Ibid, at line 22.
[52] Ibid, at lines 25-27.
There is then some discussion about how frequently these incidents occur and the Member asks, “[d]o you think, H and A, that it would be good to have a break so she had some private time with you?”[53]
and again, “[y]ou don’t think she needs an ambulance?”[54] to which the response is, “[f]or now we’re not sure but if she gets worse and if she doesn’t get well, then we’ll have to do it unfortunately”.[55] The first aid person arrives and the Member adjourns the hearing. After a short while, the hearing resumes and the First Applicant continues the discussion about whether or not the family can live in Pakistan.
[53] Ibid, p.15 at lines 19-21.
[54] Ibid, at lines 24-25.
[55] Ibid, at lines 26-27.
There was no request for an adjournment and clearly the Tribunal was open to an adjournment should such be required. The situation was fluid. No one suggested after the adjournment that the First Applicant was not in a fit state to go on and her participation after the incident appears to be much as it was prior to it. In those circumstances, I am not satisfied that the Tribunal acted unreasonably in not, of the Member’s own initiative, adjourning the hearing to another day.
I agree with the First Respondent that the matter relied upon in ground four is misconceived. In Minister for Aboriginal Affairs & Anor v
Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, the High Court considered the obligation to take into account a relevant consideration and, conversely, the obligation not to consider irrelevant matters. Mason J expressed it as follows:In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …[56]
[56] (1986) 162 CLR 24 at p.40.
The Tribunal was bound to consider if the Applicants met the criteria for a protection visa. An integer of that claim was that they had been threatened by the Taliban and the ‘night letter’ was produced as evidence of those threats. The Tribunal was required to make some finding concerning the genuineness of the letter. The Tribunal’s view on the language used in the letter was just one aspect of that determination; it was neither determinative of the outcome nor irrelevant to the Tribunal’s task under the statute.
The most significant matter raised by the Applicants concerns the issue of apprehended bias. There is no dispute between the parties as to the appropriate test to be applied in determining whether the decision of the Tribunal was vitiated by reason of a reasonable apprehension of bias. In SZRUI, Robertson J referred to the decision of the High Court in Ex parte H and summarised the test as follows;
The test as so explained is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision.[57]
[57] [2013] FCAFC 80, p.23 at para.73.
In NADH, the Full Court stated that, for a complaint of apprehended bias to have any traction, based on the conduct of the Tribunal in its procedure and the dealing with the material before it in its reasons,
it needed to assert that there was an apprehension of “a possibility of predisposition”:
That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question.[58]
[58] [2004] FCAFC 328, pp.6-7 at para.20.
Flick J, in SZRUI, acknowledged the fact that, in proceedings before a Tribunal where there is no contradictor and the Tribunal must investigate the facts for itself, unaided by counsel, questioning and expressions of doubt are entirely appropriate:
… it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind.
…
… more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion …
…
… A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration.[59]
[59] [2013] FCAFC 80, p.11 at para.27, p.11 at para.29 and p.13 at para.33.
It is clear, from the case law, that there is no vice in the Tribunal exposing doubts about an applicant’s evidence; indeed, this may afford an applicant an opportunity to seek to persuade the Tribunal of the plausibility of their claims. The issue of apprehension of bias arises when the Tribunal indicates that the opinion expressed is a final one.
In MZYSQ, Riley FM’s attention was drawn to the decision of the South Australian Supreme Court in IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151, where Doyle CJ quoted the following passage from Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 (per Guadron and McHugh JJ):
A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or pre-judiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. When suspected pre-judgment 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).[60]
[60] (1999) 78 SASR 151, pp.175-176 at para.165.
As Riley FM stated in MZYSQ:
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.[61]
[61] [2012] FMCA 661, p.16 at paras.28-29.
In this case, the Applicants have taken the Court to various statements made by the Tribunal during the course of the hearings, which extended over two days and involved interviews not only with the
First Applicant, but also with the Second, Third, Fourth, Fifth and Sixth Applicants. The First Applicant was however, the principal witness, and much of the evidence was taken from her. The Court has had the opportunity to review the transcript and also listen to the recordings.
It would appear that not all of the recorded interviews were transcribed. In particular, that part of the second hearing where the Tribunal interviewed the First Applicant’s daughter, A, does not appear to have been transcribed in full.
The Applicants raised a number of issues concerning the Tribunal’s attitude. Having listened to the recording and read the transcript, I am not satisfied that some of the matters alleged would form a basis for a reasonable observer to apprehend that the Tribunal was biased against the Applicants. In particular, I am not satisfied that the preliminary exchanges between the Tribunal and the First Applicant, and those concerning whether she had lived in a ‘posh’ area of Peshawar, would necessarily give rise to such an apprehension.
Of more significance are other comments of the Tribunal made with respect to the issues of what is referred to as the ‘night letter’ and the general issue of whether the First Applicant and her family were targeted by the Taliban. Not unreasonably, when the issue of the ‘night letter’ is first raised with the First Applicant, the Tribunal says as follows:
Well, look, I’ll have to – I have to tell you that I’ll have to think very carefully about whether or not I think this is a genuine letter. And when I look at that I’ll look at all of the evidence and then I’ll consider (indistinct) I believe this. One of the problems that people from Pakistan can have is that you can get a document, you know that virtually shows anything, from Pakistan. And I’m also going to have to think about it carefully – in the context of what you’ve said about the Taliban coming over and over and over again for nearly two years, but really nothing happened to you.[62]
[62] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.46 at lines 29-31 and p.47 at lines 1-9.
At this time, it would have been apparent to the First Applicant that the Tribunal was not convinced of the veracity of her claims. To have raised that issue with the First Applicant was not, in itself, unusual or inappropriate. Before the end of the first hearing, the Tribunal summed up the situation:
I’m going to have to think carefully about whether I actually believe that – some of the things that you’ve told me. I think it is (indistinct) relevant that you claim to have got all these threats and attacks for a couple of years yet really nothing happened and I just – I think that – I think that does perhaps suggest that there was a serious intention to kill you or harm you or stone you or do all those other horrible things.[63] (It does appear that the transcript has left out the word ‘not’ after ‘does’, given the content of the rest of paragraph).
[63] Ibid, p.72 at lines 13-21.
The Tribunal then goes on to discuss the lack of weight that might be given to documents produced by the First Applicant and to her view that the situation elsewhere in Pakistan, particularly in Islamabad, was rather different. The Tribunal then goes on to say:
I don’t believe that the Taliban came and said, “Oh we know you’re going to move and we’re going to catch you everywhere through our network”. I don’t believe that.[64]
[64] Ibid, p.73 at lines 9-12.
The Tribunal then goes on to talk about whether or not the family would be persecuted in Islamabad. The Tribunal Member, in that context, put to the First Applicant that she did not think that the family would be targeted in Islamabad. When the First Applicant put to the Tribunal “this mean [sic] you are not accepting my own evidence or documents which I forwarded”,[65] the Tribunal responded:
I certainly don’t accept the Taliban came and said, “Oh we know you’re moving and we’re going to find you wherever you are because we’ve got networks everywhere”. I don’t believe that, all right.[66]
[65] Ibid, p.75 at lines 28-29.
[66] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-1”, p.76 at lines 3-7.
The Tribunal does say, before the end of the hearing on that day,
“I don’t know what I’m going to decide on this yet”.[67]
[67] Ibid, p.77 at lines 4-5.
Before the second hearing, the Tribunal was sent a written submission by the Applicants’ representative, and the Third and Fourth Applicants, the two daughters H and A, also provided further information in writing. At the beginning of the hearing, the Tribunal Member stated that she was “not going to go over everything we talked about last time”.[68] After discussing the First Applicant’s health, the Tribunal turns to the situation in Peshawar. The First Applicant says, “[i]f the person is targeted, they are not safe in any part of Pakistan” to which the Tribunal responds, “[a]ll right well I think we talked last time about whether or not you were targeted and I frankly didn’t really believe that you were”[69] (the transcript then continues on with the Member speaking, however the recording then has a pause, with the
First Applicant saying, “[w]hy I’m not targeted?” The Tribunal Member then responds, “At least – at least not to the extent that you described”.[70]
[68][69] Ibid, p.10 at lines 3-7.
[70] Affidavit of Christopher Michael McDermott filed 2 April 2014, Exhibit “CMM-1”.
The Tribunal then says:
Because I didn’t believe you, all right. (Laughs) I think that – I think that some of the kind of harassment you described is entirely plausible. That I didn’t believe – I didn’t ---?[71]
to which The First Applicant responds, “[y]eah, because these people – that people they could knife me and also in Pakistan they are giving money to the people to kill that person”.[72]
The Member goes on to say:
Well I didn’t actually believe that you have been targeted to the extent that you described. I didn’t believe the night letter under the door. I didn’t believe it. I thought it wasn’t genuine, a made up letter, but leaving that aside ---?[73]
[71] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.10 at lines 9-12.
[72] Ibid, p.10 at lines 12-14.
[73] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.10 at lines 15-19.
The Tribunal Member again says that she did not believe
the genuineness of the letter and then indicates that she has had enough evidence on that issue. At page 13 of the transcript, the Tribunal tells the First Applicant that it must be plain to her that she is looking at not approving her as a refugee. Before finishing with the First Applicant, the Member again says that she did not think that the First Applicant had been targeted for serious harm by the Taliban.
In her interview with the Fourth Applicant, the Tribunal Member says several times, ‘I don’t believe it’ or ‘I don’t believe that’ with respect to the issue of the family being targeted by the Taliban, and is quite argumentative in her discussion with the Fourth Applicant about the situation for women in Islamabad. She also tells the Third Applicant that she does not think that anyone would be looking for them and further, tells the Second Applicant that she does not believe that the ‘night letter’ is genuine.
While the tone of the Tribunal Member is polite, but patronising,
it appears to be apparent from very early on in the interviews that the Tribunal is already considering the potential for the family to relocate to Islamabad. Having carefully considered the transcript and the recording of the interviews, I am satisfied that, well before the conclusion of the interviews, a fair-minded lay observer might reasonably apprehend that the Tribunal Member’s mind was closed on the issue of whether the family had been targeted by the Taliban in Peshawar. Before even discussing with the Third and Fourth Applicants the new material produced by them, it appears that the Tribunal has already closed discussion on the question of the family being targeted by the Taliban.
While at the end of the hearing the Tribunal Member says, “… I want to look at everything that you’ve said today and look at everything else that you’re going to tell me”,[74] I do not consider that a statement of that nature would have allayed the reasonable apprehension that,
well before all of the evidence was heard, the Tribunal had already made up its mind on a crucial issue concerning the targeting of the family.
[74] Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.31 at lines 11-13.
The Tribunal did face the difficulty of having a number of Applicants and the health issues of the First Applicant which manifested themselves early on the second day of hearings. I am satisfied that the Tribunal Member handled that situation appropriately and her conduct with respect to that issue could not give rise to any apprehension of bias on her part. I would also emphasise that there is a clear distinction between a finding of actual bias and a finding that a fair-minded lay observer might reasonably apprehend that the Tribunal was biased.
Nevertheless I am satisfied that the Tribunal, in this case, overstepped the mark and the decision should therefore be set aside.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 27 August 2014
Affidavit of Christopher Michael McDermott filed 2 April 2014, Annexure “CMM-2”, p.4 at lines
1-2.
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