MZZXM v Minister for Immigration
[2015] FCCA 609
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZXM v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 609 |
| Catchwords: MIGRATION – Matter remitted to the same Refugee Review Tribunal member after judicial review found that the Refugee Review Tribunal had failed to deal with the complementary protection provisions of the Migration Act 1958 (Cth) – whether remittal to same Refugee Review Tribunal member was basis for concluding a reasonable apprehension of bias – whether Refugee Review Tribunal misconstrued or misapplied the relocation principle – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B), 415, 420, 421, 425 |
| AmarjitSingh v Minister for Immigration and Multicultural Affairs [1997] FCA 809 Aronson, M and Groves, M, Judicial Review of Administrative Action, Thomson Reuters, fifth edition, 2013 |
| Applicant: | MZZXM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2237 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 8 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed on 16 December 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2237 of 2013
| MZZXM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application[1] for judicial review of a decision of the
Refugee Review Tribunal (“the Tribunal”) of 3 December 2013 to affirm the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.[2]
[1] Amended Application filed 15 April 2014.
[2] Court Book filed 24 April 2014, at pp.338-365.
Background
The Applicant is a Pakistani national who arrived in Australia on a subclass 572 student visa on 23 October 2008. On 10 May 2010,
he applied for a protection visa.[3] On 16 May 2011, a delegate of the Minister interviewed the Applicant and, on 20 June 2011, the delegate refused to grant the application.[4] On 18 July 2011, the Applicant applied to the Tribunal for a review of the delegate’s decision.
[3] Ibid, at pp.14-53.
[4] Ibid, at pp.120-140.
The Applicant attended hearing before the Tribunal on 13 October 2011 and post-hearing submissions were forwarded to the Tribunal by his representative on 9 November 2011.[5] On 26 March 2012, the Tribunal handed down a decision dated 23 March 2012 affirming the decision of the delegate not to grant the visa.[6]
[5] Court Book filed 24 April 2014, at pp.366-371.
[6] Ibid, at pp.409-451.
On 27 April 2012, the Applicant applied for a judicial review of the Tribunal’s decision and, on 15 May 2013, the Federal Circuit Court issued orders[7] that the Tribunal’s decision be set aside and the matter be remitted to the Tribunal for determination according to law.[8]
[7] Ibid, at p.465.
[8] MZYXN v Minister for Immigration & Anor [2013] FCCA 134.
The matter was allocated to the same member of the Tribunal who
had made the decision which was handed down on 26 March 2012.
On 7 August 2013, the Applicant’s representative sent an email to the President of the Tribunal advising that the Applicant objected to the same member reviewing his application and requesting that the case be allocated to another member. On 19 August 2013, the Applicant’s representative lodged with the Tribunal:
·Written submissions;
·A statutory declaration made by the Applicant; and
·Material about the current situation in Pakistan.[9]
[9] Court Book filed 24 April 2014, at pp.158-266.
On 5 September 2013, the Applicant and his representative attended a hearing with the Tribunal. At the commencement of the hearing,
the Applicant’s representative asked the presiding member to disqualify herself. The member refused to do.
On 8 October 2013, the Applicant’s representative lodged with
the Tribunal a further statement by the Applicant and other supporting documents.[10] On 4 December 2013, the Tribunal handed down
its decision in which the decision of the delegate was affirmed.[11]
On 16 December 2013, this application for review was lodged with the Court.[12]
[10] Ibid, at pp.271-333.
[11] Ibid, at pp.338-365.
[12] Application filed 16 December 2013.
The Applicant’s claims
The Applicant claimed that he came from one of the
Federally Administered Tribal Areas (“FATA”) in Pakistan and that he was an educated person who worked as a computer operator at a girls’ school. He was also interested in cricket and music, was a singer and was clean shaven. In 2008, militants associated with the Taliban had threatened the Applicant with harm if he did not:
·Cease his work at the girls’ school;
·Grow a beard; and
·Curtail his interest in cricket and music.
As a result of these threats he had left his employment.
The Applicant also claimed that members of his family were forced from their homes and the family business was destroyed by the Taliban. As a result of this, his family became internally displaced persons and were forced to relocate. The Applicant claimed that, after he arrived in Australia, militants came to his home in Pakistan in 2010 to ask where he was. When his brother told them that the Applicant was in Australia, the militants said that he would be getting a western education and they would not spare him if he returned home.
In its first decision dated 23 March 2012, the Tribunal accepted that the Applicant was a Sunni Muslim from the FATA in Pakistan.
The Tribunal found the Applicant’s evidence to be consistent with country information about the activities of the Taliban in his home area. The Tribunal also found that the Applicant had given generally consistent evidence regarding his experiences in Pakistan. The Tribunal accepted the Applicant’s evidence with the exception of his evidence concerning the visit by the Taliban to his home in 2010. The Tribunal also accepted that there was more than a remote or far-fetched possibility that, if the Applicant returned to his home area in the FATA in Pakistan, he may face persecution from the Taliban or other militants.
The Tribunal then went on to consider the reasonableness of the Applicant relocating within Pakistan and found that the Applicant could live and work in Karachi or Lahore.
When the matter went before the Court for judicial review,
Judge Riethmuller found that the Tribunal had “erred in failing to consider the applicant’s claims within the parameters of s.36(2)(aa)
[of the Migration Act 1958 (Cth) (“the Act”)]”.[13] His Honour went on to say:
In the present case the Minister relies heavily upon the findings made by the Tribunal to the effect that the applicant could relocate within Pakistan to avoid the serious harm that falls within the ambit of the convention grounds. It is argued that there is not serious harm, or factual circumstances, which are arguably outside of the ambit of the convention, but which may fall within the complementary protection provisions. As a result, counsel for the Minister argues that the Tribunal’s finding that the applicant could relocate within Pakistan addresses all of the concerns the applicant raised.
On a practical level it is apparent that neither the tribunal member, nor the applicant’s advisors, turned their mind to the complementary protection provisions prior to the hearing or at any point during the process. As a result, it is not unlikely that the applicant’s advisors would not have explored risks to the applicant that were outside the ambit of the convention, but may potentially be within the ambit of the complementary protection provisions.
Importantly the wording of the provisions relating to the convention and the complementary protection provisions are different, indicating at least some slight difference in the test that must be applied. Whilst there was not technically a denial of procedural fairness in this case, as the applicant did receive a hearing, the practical effect of the events is substantially the same. That is, as no-one addressed, nor turned their minds to the complimentary protection provisions, the circumstances are no different to a failure to hear the application on this aspect of the case.
As a result, I am not able to be satisfied that it would be certain that a rehearing would be futile in this case.
In the circumstances I must therefore remit the matter to the Tribunal for rehearing and therefore I will allow the application and order accordingly.[14]
[13] MZYXN v Minister for Immigration & Anor [2013] FCCA 134, p.5 at para.11.
[14] MZYXN v Minister for Immigration & Anor [2013] FCCA 134, pp.10-11 at paras.20-24.
The second decision of the Tribunal
In paragraphs 39 to 42[15] of the second decision made 3 December 2013, the Tribunal repeats the findings made at paragraphs 83 to 86[16]
of the first Tribunal decision concerning the Applicant’s claims.
At paragraph 43,[17] the Tribunal deals with the claim that two militants had visited the Applicant’s brother and that his brother had told them that the Applicant was in Australia. After repeating the matters already found in paragraph 87[18] of the first decision, the Tribunal refers to the evidence about this incident given by the Applicant in his further statutory declaration of 16 August 2013[19] as providing additional support for a finding that the event did not occur.
[15] Court Book filed 24 April 2014, at pp.353-354.
[16] Ibid, at pp.444-445.
[17] Ibid, at pp.354-355.
[18] Ibid, at p.445.
[19] Ibid, at pp.159-163.
At paragraph 44,[20] the Tribunal refers to country information including a UK Country of Origin Information Report of 9 August 2013 and accepts that there is “more than a remote or far-fetched possibility”[21] that, if the Applicant returns to his home area, he may face persecution from the Taliban or other militants operating in the FATA area.
The Tribunal then goes on to consider, at paragraphs 45 and 46,[22] whether state protection would be available to the Applicant if he was to return to his home area and concludes that it would not.
[20] Ibid, at p.355.
[21] Ibid.
[22] Ibid, at pp.355-356.
At paragraphs 47 and 48,[23] the Tribunal deals with the question of relocation and repeats what it said at paragraphs 89 and 90[24] of the
first decision but then goes on, at paragraph 49, to conclude that
“in light of the applicant’s particular profile and circumstances and the more recent independent information about the situation in Karachi, it would not be reasonable for the applicant to relocate to Karachi”.[25]
[23] Ibid, at p.356.
[24] Ibid, at p.446.
[25] Court Book filed 24 April 2014, at p.356.
[27] Ibid, p.359 at para.59.
The Tribunal goes on to discuss the situation in Lahore and, while some material from the previous decision is repeated, the Tribunal also refers to an article cited by the Applicant’s adviser, Pakistan: The case of Pashtun genocide in the country, published in May 2013.
At paragraphs 55 to 62,[26] the Tribunal deals with the Applicant’s cultural pursuits, including his singing and love of English literature and also his interest in playing cricket. The Tribunal rejects some of the Applicant’s evidence about his involvement in public performances and his profile as a singer but concludes that the Applicant
“could continue with his singing in Lahore and he would not face a real chance of persecution”[27]and did not accept that his Facebook page, where he shares his sonnets and poems, would attract attention to him in Lahore. The Tribunal also did not accept that his participation in cricket would attract the attention of the Taliban in Lahore.
[26] Ibid, at pp.358-360.
The Tribunal then deals with the Applicant’s other claims before concluding, at paragraph 66,[28] that none of the Applicant’s attributes or characteristics would put him at risk of persecution in Lahore.
At paragraph 68,[29] the Tribunal reaches the same conclusions about the ability of the Applicant to relocate to Lahore as it did with respect to both Karachi and Lahore in paragraph 101[30] of the first decision.
[28] Ibid, at p.362.
[29] Ibid, at pp.362-363.
[30] Ibid, at p.450.
At paragraphs 73 to 78,[31] the Tribunal considers the complementary protection criteria and concludes that, for the same reasons (for which it found that the Applicant did not hold a well-founded fear of persecution for the purposes of the Refugee Convention), there were no “substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan [there was] a real risk that the applicant [would] suffer significant harm”.[32]
[31] Ibid, at pp.364-365.
[32] Ibid, p.365 at para.78.
The Applicant’s contentions
The Applicant’s grounds as set out in his amended application are as follows:
1. The Tribunal failed to determine the review application according to law as ordered by this Honourable Court in its judgement [sic] of MZYXN v Minister for Immigration & Anor [2013] FCCA 134 15 May 2013.
2. Further or in the alternative to Ground One, the Tribunal fell into jurisdictional error by misconstruing the relocation principle enunciated by the High Court in SZATV v MIMIA [2007] HCA 40; (2007) 233 CLR 18.[33]
[33] Amended Application filed 15 April 2014, at p.4.
The Applicant made both written and oral submissions in support of those grounds:
Section 421 of the Migration Act 1958 (Cth) (as amended –
“the Act”) provides that the Principal Member (of the RRT) may give a written direction about who is to constitute the Tribunal for the purpose of a particular review. Any directions given by the Principal Member concerning the operations of the Tribunal and the conduct of reviews by the Tribunal must be consistent with the Act and the Migration Regulations 1994 (“the Regulations”): section 420A(1). It is submitted that this means that any such directions must conform to the RRT’s statutory objective of pursuing a mechanism of review that is fair, just, economical and quick: section 420(1).
Section 8 of Principal Member Practice Direction 01 of
26 July 2013 Constitution and Prioritisation provides:
The following considerations are to be taken into account in the constitution of the tribunal:
· consistent with the Gender Guidelines, and to the extent practicable, consideration is to be given to whether there are any factors in relation to the application that would make it appropriate for a member of a particular gender to conduct the review
· whether the tribunal should be constituted by a different member if a person has previously had a case reviewed, or a case has been remitted for consideration.[34]
[34] Outline of Applicant’s Contentions of Fact and Law filed 20 November 2014, pp.3-4 at paras.2-3.
The Applicant submitted that the objectives of s.420 of the Act required the Tribunal to be fair and just as well as economical and quick.
The first two objectives should be given primacy in the exercise of powers under s.421 of the Act. Fundamental to the exercise of that power is the requirement that the Tribunal act reasonably.[35]
[35] See Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332.
The Applicant submitted that the common law principles relating to procedural fairness and the conduct of a rehearing should be applied to a rehearing of a matter by the Tribunal when the applicant has been successful in an application for judicial review. The Applicant referred the Court to the general principal that a judge should not hear a case if there may be a reasonable apprehension on the part of the parties or an informed observer that the judge might not bring an impartial or unprejudiced mind to the question to be resolved.[36]
[36] See Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293-294.
A review by the Tribunal is de novo and the Tribunal is not bound by the findings of the primary decision-maker.[37] The Applicant referred to the decision of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 (“Wang”) where his Honour said “a fresh decision-maker might see the matter differently even if the information remains substantially the same”.[38]
[37] Migration Act 1958 (Cth), s.415(1).
[38] (2003) 215 CLR 518, p.525 at para.16.
The Applicant submitted that “it is very difficult if not impossible for any decision maker to ignore what has gone before and avoid the natural tendency to justify one’s original conclusions”.[39] A decision of the Tribunal requires matters of judgment and an assessment of credibility:
It is clear that a member of the Tribunal should not sit to hear a case if, in all the circumstances, the applicant might entertain a reasonable apprehension that that member might not bring an impartial and unprejudiced mind to the determination of the review.[40]
[39] Outline of Applicant’s Contentions of Fact and Law filed 20 November 2014, p.5 at para.6. See also AmarjitSingh v Minister for Immigration and Multicultural Affairs [1997] FCA 809.
[40] AmarjitSingh v Minister for Immigration and Multicultural Affairs [1997] FCA 809 at p.12.
The Applicant acknowledged that it is in the nature of proceedings before the Tribunal that a Tribunal member will not come to the hearing with an empty mind. There would be no need for a hearing if the Tribunal had a positive view of the case. In this case, however, the member had already turned her mind fully to the Applicant’s case and had formed concluded views about it.
The Applicant also referred the Court to the decisions in Sivaganeshan Kathiresan v Minister for Immigration and Multicultural Affairs
[1998] FCA 159 (“Kathiresan”) and Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (“Eshetu”) whereDavies J, in the latter case, said “[n]ecessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind”.[41]
[41] (1997) 71 FCR 300 at p.313.
In this case, the Tribunal determined that the Applicant could relocate internally within Pakistan. The Applicant submitted that the Tribunal member came to these conclusions based on assumptions about the Applicant and that there was no factual evidentiary basis for those assumptions. At the rehearing, the Applicant submitted further information about the situation in Pakistan to which the member gave little weight. The Applicant submits that this was because she had already made up her mind on the issue. As Gleeson CJ said in Wang:
…as a practical matter, if [the member who undertook the previous review] undertakes the review, then, unless there is a significant change in the information before the Tribunal,
[that member]is unlikely to alter the view of the facts
[the member]took previously…[42]
[42] (2003) 215 CLR 518, p.525 at para.16.
The Applicant also referred the Court to the views expressed by Aronson and Groves in the text Judicial Review of Administrative Action[43] in relation to the issue of pre-judgment by Tribunals.
[43]With respect to the second ground, the Applicant submitted that it was settled law that Australia did not owe protection obligations if the applicant could avoid significant harm by relocating elsewhere in their home country and it is reasonable and practical to do so. The same applies in relation to both the refugee criteria and complementary protection.[44] The Applicant referred the Court to the following passages from the judgment of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”):
[44] Migration Act 1958 (Cth), s.36(2B).
In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal;
Ex parte Jonah [1985] Imm AR 7. Professor Hathaway, op cit at p 134, expresses the position thus:
“The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.” [Original emphasis].[45]
[45] (1994) 52 FCR 437, at p.442.
The Applicant also referred to the judgment of Kirby J in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) and, in particular, to the following passages of that judgment:
A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation.
An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation (footnotes omitted).[46]
[46] (2007) 233 CLR 18, pp.42-43 at paras.80-81.
The Applicant contended that the Tribunal had failed to discharge its statutory duty to determine whether relocation within Pakistan was reasonably practical in accordance with the principles in Randhawa and SZATV. In particular, the Tribunal assumed that, because the Applicant was single, childless, educated and fluent in English and Urdu as well as Pashto, he could move to live and work in Lahore.
The Tribunal also assumed that, as the Applicant had lived in Australia away from family and friends, he could cope with living in Lahore away from them. The Applicant submitted that the Tribunal had no evidence before it concerning:
·Employment prospects in Lahore;
·The cost of living in that city;
·The monetary resources the Applicant would have if he returned to Pakistan; or
·The practicalities of finding accommodation there in the absence of support from family and friends.
The Applicant also referred to the case of MZZIG v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1236 in support of the contention that the Tribunal had failed to deal with the reasonableness of the relocation.
The First Respondent’s submissions
The First Respondent submitted that allegations of apprehended bias should not be made lightly: it is not enough that conventions of discretion or prudence have been breached. The First Respondent referred the Court to the decision of the Full Bench of the
Federal Court in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90:
In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal’s assessment of the merits of the appellant’s claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more.
It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant. The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith. The primary judge also carefully analysed the Tribunal’s decision and observed that, even if the alleged errors were made out, they would not demonstrate lack of good faith on the part of the Tribunal. We agree with that conclusion.[47]
[47] [2003] FCAFC 90, p.5 at para.15.
The First Respondent also referred the Court to the decision of Kirby J in Re Minister for Immigration and Multicultural Affairs and Anor;
Ex parte Epeabaka (2001) 206 CLR 128:First, it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be
“firmly established”. This reflects a recognition that
decision-makers (whether in the judiciary, in adjudicative tribunals or elsewhere vested with public power) are human beings. They have foibles and personal characteristics that vary substantially, reflecting differences of view that also exist in the community at large. Being independent, such decision-makers, in their professional conduct and utterances, will often exhibit robust individuality that is characteristic of people who are obliged to make important and difficult decisions without fear or favour.[48]
[48] (2001) 206 CLR 128, p.158 at para.90.
The First Respondent further referred to the decisions of Sundberg J in Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 (“MZXPA”) and of the Full Court of the Federal Court in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH”) and, in particular, to the judgment of Allsop J at paragraph 14 of NADH:
The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32]. It will be necessary to say something more about the content of that test in the context of an administrative decision-maker, such as the Tribunal here. At this point, it is sufficient merely to note that the primary judge did not approach the question of apprehended bias by essaying the somewhat wider task involved in the assessment of the apprehension of the posited fair-minded and informed observer. No doubt this is to be explained by the submissions put to his Honour on WAEJ.[49]
[49] [2004] FCAFC 328, p.5 at para.14.
The First Respondent submitted that the standard that applies to an administrative decision-maker is not the same as the standard which will apply to a judge. People have an informed understanding of how the Tribunal operates; that members bring to bear a wealth of expertise in relation to various matters, including knowledge of conditions in particular countries. Further, as a result of the way in which the statutory scheme operates, there is no hearing unless the member,
on the material before them, cannot form a favourable view of the applicant’s case. What the applicant needs to establish is that there is some incapacity to change that preliminary view; that there is a predisposition to a result such that it can be said there is a reasonable apprehension of impartiality.
The First Respondent submitted that “[t]he mere fact of the Tribunal being constituted by the same member upon remittal does not itself give rise to actual or apprehended bias”.[50] The First Respondent submitted that the Applicant “has not established that the Tribunal had a predisposition about the outcome of its review and this predisposition was incapable of alteration”, nor that “a fair-minded and informed person might reasonably apprehend the possibility of such an unalterable predisposition on the part of the Tribunal”.[51] Further,
the Applicant:
[H]as not shown how such a fair-minded and informed person might reasonably infer that there was nothing that the applicant could have said or done to change any preliminary view which the Tribunal might have held about his case.[52]
[50] First Respondent’s Submissions filed 3 December 2014, p.6 at para.34.
[51] First Respondent’s Submissions filed 3 December 2014, p.6 at para.34.
[52] Ibid.
The First Respondent contended that the cases cited by the
Applicant were determined under a different statutory scheme.
The First Respondent also contended that those cases were distinguishable from the present case. The case Kathiresan,
for example, involved adverse credibility findings made against the visa applicant: this was not that type of case. There was an error of law identified by the Court and there was never any suggestion that the Tribunal had approached the matter in a way which relied on adverse credibility findings.
It is not suggested that the Tribunal was somehow capricious or inappropriate or hostile in any way towards the Applicant:
the Applicant relies entirely on the proposition that, once findings have been made, it is hard to disturb those findings. The Applicant would need to establish that there was an appearance that the Tribunal merely paid lip service to all of the new material and, on a fair assessment of the Tribunal’s reasons, that cannot be said to be the case. The Tribunal did have regard to the new material as well as new evidence that was put before it. The First Respondent referred the Court to the Tribunal’s decision at paragraphs 33, 35, 49-51, 63, 71 and 76[53] and to evidence that the Tribunal’s consideration included material submitted subsequent to the previous review.
[53] Court Book filed 24 April 2014, at pp.349-353, 356-357, 360-361 and 363-364.
The First Respondent submitted that on neither occasion before the Tribunal did credibility findings play any material part in the Tribunal’s determination of the matter. The issues were determined in favour of the Applicant with the matter turning, on both occasions, on the relocation point. On this point, there were some different findings on remittal. With the additional material before it, the Tribunal determined that relocation to Karachi would not be reasonable. This is something that stands clearly against any reasonable apprehension of bias on the part of the Tribunal.
On the specific issue with respect to the constitution of Tribunals
on remittal, the First Respondent relied on a number of cases.
Comcare v Broadhurst(2011) 192 FRC 497 (“Broadhurst”) concerned a different Tribunal – the Administrative Appeals Tribunal (“the AAT”) – but the Court made the following observations:
The rehearing of matters remitted to the Tribunal is to be distinguished from the rehearing of matters remitted by an appellate court to a trial court. In the former case an appeal can be allowed only on a question of law. Most appeals in the latter category will be rehearings where all issues are open, including findings of fact. Reversal on a question of law will rarely justify a rehearing by a Tribunal differently constituted.
A rehearing before a Tribunal differently constituted will inevitably be more expensive, both to the parties and to the Commonwealth. Except in a clear case the interests of justice and the statutory requirements will generally best be served by a hearing before the Tribunal constituted as it was originally.
Practical matters such as the workload of the Tribunal and its members, as well as other similar matters, will also be relevant to how the Tribunal should be constituted for a matter remitted for further hearing.
For all these reasons it seems to me that this Court should leave to the President of the Tribunal the question of how the Tribunal should be constituted on a rehearing. Only the President will be aware of all the factors which must be taken into account. Observations in decisions of the Court which may suggest a different view are generally obiter, made in cases relating to different tribunals, or made prior to the amendments to the Tribunal Act in 2005 (or based on remarks in cases so decided).[54]
and:
In many cases it may well be the appropriate course to simply allow an appeal and remit the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate pursuant to s 20B. The power, however, of this Court to make orders or give directions as to the future constitution of the Tribunal when an appeal has been allowed has not been questioned: cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. The manner in which that power should be exercised, however, is to be resolved by reference to the facts and circumstances of each individual appeal. The power, it is respectfully considered, should not be more confined than that. The exercise of the power should not be approached with any inclination that it should “usually” be exercised in one manner rather than another. Whether any specific direction or order should be made by this Court on appeal as to the constitution of the Tribunal, or whether the constitution of the Tribunal should be left for determination by the President, should not be constrained by any pre-determined formulae or by any attempt to characterise those factors where one order rather than another may be more appropriate.
The present proceeding is one in which it is manifestly appropriate to simply make an order remitting the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate. To the extent that it may assist the President, it may be observed that there is no apparent reason that would warrant the Tribunal being differently constituted; indeed, there seems to be every reason why the Tribunal should remain as it was originally constituted.[55]
[54] (2011) 192 FRC 497, p.504 at paras.30-33, per Downes J.
[55] (2011) 192 FRC 497, pp.516-517 at paras.94-95, per Tracey and Flick JJ.
The First Respondent submitted that matters which might be relevant to whether the matter is referred to the same member or not could include whether or not there were adverse credibility findings made on the previous occasion. Jordan v Australian Postal Commission [2007] FCA 2028 (“Jordan”), also referred to, dealt with similar issues to Broadhurst.
In SZJFI v Minister for Immigration and Multicultural Affairs (2006) 206 FLR 205 (“SZJFI”), Scarlett FM, as he then was, refused to make an order that the Tribunal be constituted differently on remittal. In his view, the composition of the Tribunal was a matter for the Principal member and not a matter for the Court. In SZJGE v Minister for Immigration and Multicultural Affairs [2006] FMCA 1845 (“SZJGE”), his Honour voiced the opinion that requests for such orders should be discouraged. The First Respondent submitted that the Court will only step in if there is a concern that, upon remittal, the person might not get a fair hearing by reason of the fact that the Tribunal is constituted in the same way. In MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552 (“MZXRE”), the matter was remitted back to the same Tribunal member after the Tribunal had mistakenly come to the view that the Tribunal did not have jurisdiction.
With respect to the second ground, the First Respondent referred the Court to the joint judgment of Gummow, Hayne and Crennan JJ in SZATV at paragraphs 23 to 24:
The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.
However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.[56]
[56] (2007) 233 CLR 18 at pp.26-27.
The First Respondent also referred the Court to the Full Court decision in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at paragraph 124[57] which stands for the proposition that the nature of any inquiry about what is reasonable depends upon the framework set by the particular objections to relocation set by the applicant, and MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at paragraphs 60 to 61[58] which highlights the fact that the inquiry is circumscribed by the case made by the applicant with respect to the relocation issue. In so far as there is a dispute about the so-called assumptions that were made, which, in the First Respondent’s submission, are just factual inferences drawn by the Tribunal, this is just an attempt by the Applicant to reargue the merits of the case.
[57] (2009) 174 FCR 415 at pp.438-439.
[58] [2013] FCA 1352 at pp.16-17.
Conclusions
This matter was remitted to the Tribunal by Judge Riethmuller in MZYXN v Minister for Immigration & Anor [2013] FCCA 134 who found that the Tribunal, at the first hearing, had failed to consider the application of s.36(2)(aa) of the Act. At the first judicial review hearing, the First Respondent argued that, as a matter of discretion, the Court should not remit the matter for a rehearing because the Tribunal’s findings with respect to relocation would have equal application with respect to the complementary protection provisions and that a rehearing would therefore produce no useful result. His Honour disagreed, stating:
On a practical level it is apparent that neither the tribunal member, nor the applicant’s advisors, turned their mind to the complementary protection provisions prior to the hearing or at any point during the process. As a result, it is not unlikely that the applicant’s advisors would not have explored risks to the applicant that were outside the ambit of the convention, but may potentially be within the ambit of the complementary protection provisions.[59]
[59] [2013] FCCA 134, p.11 at para.21.
The Applicant, in this application, argues that the Tribunal’s conduct of the second review indicates that it misconceived its task and that it was predisposed to find against the Applicant regardless of the evidence he presented and to adhere to the conclusions it reached in its first review.
It is accepted that the requirement that the Tribunal deal with matters in a way which conforms with s.420 of the Act by providing a “mechanism of review that is fair, just, economical, informal and quick”,[60] does not mean that it is not subject to certain standards such as the requirement to bring an impartial mind to the process of
decision-making.
[60] Migration Act 1958 (Cth), s.420(1).
While the standards expected of a court in terms of actual or apprehended bias are the basis for the requirements of impartiality expected of a Tribunal, it has also been recognised that a Tribunal is not a court and the requirements of a Tribunal engaged in administrative decision-making is not the same as that of a judge determining matters in the context of adversarial litigation.
The Full Court of the Federal Court in NADH made the following observations about those distinctions:
… The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative
decision-makers acting in private …
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the 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. Unless that be demonstrated, it is hard to see how a
decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.[61]
[61] [2004] FCAFC 328, pp.6-7 at paras.19-20, per Allsop J, as he then was.
His Honour Allsop J further dealt with this issue in SZRUIv Minister for Immigration, Multicultural Affairs and Citizenship [2013]
FCAFC 80:
The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84].[62]
[62] [2013] FCAFC 80, pp.1-2 at para.2.
In the particular context of the Act, the provisions of s.425 of the Act are also significant. As Sundberg J said in in MZXPA:
The hypothetical fair‑minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant.
That follows from s 425 of the Act, which provides in part:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it …
…
Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [23] and SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 965 at [15]‑[16].[63]
[63] [2008] FCA 185, p.5 at para.13.
In Wang, the Full Court of the Federal Court had allowed an appeal from a decision of a single judge who had dismissed an application for judicial review of a decision of the Tribunal. The issue concerned that aspect of the Full Court’s order that remitted the matter to the Tribunal ‘as previously constituted’. The Chief Judge discussed this at paragraphs 16 to 19 of his judgment:
The content of the interests of justice, in the events that occurred, is to be determined in the light of the provisions of the Act, pursuant to which the respondent made his application for a protection visa, and pursuant to which the delegate of the minister, the tribunal, and the Federal Court were acting. Under the statutory scheme, and in consequence of the other orders made by the Full Court, the tribunal is now obliged to undertake a further review of the delegate's decision. The tribunal's decision upon that review is to be made on the basis of the facts as they appear in the course of that review. To what extent the information before the tribunal will differ from the information that was originally before Ms Boland is not known. The findings made by Ms Boland will have no legal status in that further review. Neither Ms Boland, if she undertakes the further review, nor any other member of the tribunal, if the tribunal is differently constituted, will be bound by them. The most that can be said is that, as a practical matter, if Ms Boland undertakes the review, then, unless there is a significant change in the information before the tribunal, she is unlikely to alter the view of the facts she took previously, whereas a fresh decision-maker might see the matter differently even if the information remains substantially the same. If that be regarded properly as a risk, does justice require that the respondent be protected from it?
It is tempting, but dangerous, to seek analogies in the field of adversarial litigation. An appeal court, pursuant to statutory power, may order a re-trial limited to particular issues. But where the issues on a re-trial are at large, it would come as a surprise to see a court of appeal order a re-trial before a particular judge for the reason that the judge is thought to be more, or less, likely than others to resolve the issues in a particular fashion. The Full Court, having set aside the tribunal's decision, appears to have contemplated that the further hearing would in some way be limited, but it made no order to that effect; it attempted to achieve the same practical result by indirect means. Whether it could have achieved the intended result by making different orders, or giving different directions, is not a matter that arises for decision.
Proceedings before the tribunal are not adversarial. No issues are joined. There is an ultimate question to be answered, and a statutory consequence attaching to the answer to that question. The question is whether the tribunal is, or is not, satisfied of the matters set out in s 65 of the Act which, in the case of the respondent, concern his claim that he has a well-founded fear of being persecuted for reasons of religion. That state of satisfaction must exist at the time of the decision following the hearing of the remitted matter, and must be formed on the basis of all the information before the tribunal at that time. Justice requires that the respondent's claim be considered fairly, and on its substantial merits. It does not require that the hearing be conducted on the basis that any favourable findings of fact, made in the course of the decision that was set aside by the Full Court, be somehow preserved for his benefit. Nor does it require the selection, if possible, of a decision-maker who has already shown herself to be willing to accept parts of the respondent's case. Fairness to a person seeking a visa may require that, in a given case, he or she be protected against the possibility, or the appearance, of adverse pre-judgment. It does not require protection against the risk that open-minded judgment will result in a view of certain facts less favourable than that of an earlier decision-maker whose decision has been set aside completely.
In making its order as to the constitution of the tribunal for the purpose of securing for the respondent the benefit of such favourable views as had previously been formed by Ms Boland, the Full Court erred.[64]
[64] (2003) 215 CLR 518, pp.525-526 at paras.16-19.
[65] (1997) 71 FCR 300 at 302.
The difficulty the Applicant faces in my view, in this matter, is that the case of AmarjitSingh v Minister for Immigration and Multicultural Affairs [1997] FCA 809 referred to with respect to the issue of whether the same member should conduct the review was determined in a statutory context which is different to the current provisions and did not involve the remittal of a matter following judicial review. While the case of Eshetu did involve an appeal from a decision of a single judge, it was primarily concerned with the interpretation of the then s.476 of the Act in the context where the judge had found that the
“Tribunal’s decision was so unreasonable that no reasonable tribunal could have arrived at it”[65]but was of the view that relief could not be granted because of the limited nature of the provisions of s.476 of the Act. In Kathiresan, Gray J found that the decision of the Tribunal was “fundamentally flawed” and “must be quashed”.[66] His Honour went on to say:
It seems to me to be abundantly clear that a referral of the matter to the tribunal as it was constituted for further consideration would not do justice to the applicant. Although counsel for the applicant did not raise an allegation that the decision was affected by actual bias, within the meaning of s 476(1)(f) of the Act, I have such serious disquiet about the approach which the tribunal took that I would regard it as most inappropriate for the matter to be considered further by the same member.[67]
[66] [1998] FCA 159, at p.11.
[67] Ibid.
For its part, the First Respondent referred the Court to two decisions which dealt with the issue of a rehearing by the AAT. The AAT was also charged with the requirement to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.[68] In Broadhurst, Downes J expressed the view that reversal of a decision by a Tribunal after judicial review, on a question of law, would “rarely justify rehearing by a Tribunal differently constituted”.[69] Both Broadhurst and Jordan (which also involved the AAT) and the decisions of Scarlett FM in SZJFI and SZJGE involved the question of whether the Court should make directions with respect to the constitution of a Tribunal in the context of s.421 of the Act, and similar provisions with respect to the AAT, which give the power to constitute membership of a Tribunal to the Principal member.
[68] Administrative Appeals Tribunal Act 1975 (Cth), s.2A.
[69] (2011) 192 FRC 497, p.504 at para.30.
The issue in this case, however, is not one of the power or the appropriateness of making orders with respect to whether a different member should, or should not, conduct a rehearing when a matter is remitted after a decision is quashed by a Court exercising judicial review, but whether the conduct of such a rehearing by the same member gives rise to a reasonable apprehension of bias.
The decision to remit the matter to the same member is one which needs to balance the requirements on the Tribunal to determine matters fairly and justly, but also economically and quickly. Where, as in MZXRE, the decision of the Tribunal that is the subject of review was not made on the basis of the merits of the case but on the basis that the Tribunal believed it lacked jurisdiction, then there would appear to be nothing unfair or unjust about remitting the matter to the same member. On the other hand, if the Tribunal had made extensive findings of credibility adverse to the applicant, it would be prudent, to say the least, to refer the matter to another member on remittal. At the end of the day however, the question is whether a fair-minded and informed observer might reasonable apprehend that the member had a predisposition about the outcome and it might reasonably be inferred that nothing the applicant said or did was likely to alter that.
In this matter, the Tribunal, on the first occasion, made a number of findings with respect to the evidence. With respect to all but one issue, whether his brother had been visited by militants who had made threats should he return to Pakistan, the Tribunal accepted the Applicant’s evidence about his experiences and the situation in the FATA.
The Tribunal accepted that the Applicant might face persecution if he returned to his home area. Ultimately, its decision was based on an assessment that the Applicant could avoid the risk of such persecution if he relocated within Pakistan and that it was reasonable for him to do so.
The decision on review was not based on the unreasonableness of the Tribunal’s decision or a failure by the Tribunal to approach the application of the statute in an appropriate manner, but on a failure to give any consideration at all to the complementary protections provisions.
Not unexpectedly, the second decision of the Tribunal came to similar conclusions about the Applicant’s evidence as on the first occasion. With respect to the issues of his experiences and potential exposure to persecution or significant harm in the FATA, the conclusions made by the Tribunal were not adverse to the Applicant. It is evident, however, that the Tribunal also considered material which post-dated its first decision with respect to country information, and specifically considered material presented by the Applicant. It is significant that the Tribunal accepted, on the basis of new material, that it was not reasonable for the Applicant to relocate to Karachi but,
after considering the evidence, concluded that he could relocate to Lahore.
The Tribunal’s conclusions and the way the material was addressed does not suggest that the member came to the second hearing with a fixed view of the outcome and could not be persuaded to alter her views.
The second ground relied upon by the Applicant is a contention that the Tribunal misconstrued the relocation principle. Both the Applicant and the First Respondent referred to the principle as enunciated by the Court in Randhawa and SZATV. It is generally accepted the shortly stated relocation must be reasonable and practical and that what will constitute ‘reasonable’ and ‘practical’ will depend on the particular circumstances of the applicant and the impact on them of relocation within their country of nationality.
As the First Respondent has pointed out, the inquiry expected of the Tribunal into what might be ‘practical’ and ‘reasonable’ is limited by the case put by the applicant with respect to his or her ability to relocate[70] or which might reasonably be said to arise from the applicant’s case.[71]
[70] See SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 and[71] MZZIG v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1236.
The Applicant does not suggest that there was some aspect of his case with respect to relocation that the Tribunal failed to consider.
The Tribunal deals with the relocation issue at paragraphs 48 to 70[72] of its decision. The Applicant’s real contention appears to be that the Tribunal drew inferences from the evidence without conducting some further investigation into “employment prospects in Lahore, the cost of living in that city, the monetary resources the Applicant would have on return to Pakistan or the practicalities of finding accommodation there in the absence of support from family and friends”.[73] To the extent that it was necessary for the Tribunal to deal with these issues it did so in paragraph 69[74] of its decision. As the joint judgment of Gummow, Hayne and Crennan JJ in SZATV noted, “…the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense”.[75]
[72] Court Book filed 24 April 2014, at pp.356-363.
[73] Outline of Applicant’s Contentions of Fact and Law filed 20 November 2014, p.10 at para.21.
[74] Court Book filed 24 April 2014, at p.363.
[75] (2007) 233 CLR 18, p.27 at para.25.
I am not satisfied that the Tribunal misconstrued the relocation principle or failed to apply it appropriately in dealing with either the refugee claim or the complementary protections criteria.
For these reasons, the application is dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 19 March 2015
Aronson, M and Groves, M, Judicial Review of Administrative Action, Thomson Reuters,
fifth edition, 2013 at pp.656-657.
Minister for Immigration and Border Protection [2013] FCA 1352.
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