MZZYD v Minister for Immigration

[2014] FCCA 1894

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZYD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1894

Catchwords:
MIGRATION – Allegation of bias or perceived bias in a reconstituted Tribunal – relevant considerations – whether Tribunal failed to take into account relevant considerations.

Legislation:

Migration Act 1958 (Cth)

Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189
Comcare v Broadhurst [2011] FCAFC 39
Livesey v NSW Bar Association [1983] HCA 17
Northern NSWFM Pty Ltd v The Australian Broadcasting Tribunal and Northern Rivers FM Radio Limited (1990) 26 FCR 39
re JRL; ex parte CJL (1986) 161 CLR 342
Smith v New South Wales Bar Association [1992] HCA 36

Applicant: MZZYD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2319 of 2013

Judgment of: Judge McGuire

Hearing date: 21 August 2014

Date of Last Submission: 21 August 2014

Delivered at: Melbourne

Delivered on: 12 September 2014

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the application filed 23 December 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2319 of 2013

MZZYD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The application filed 23 December 2013 seeks an order that the respondents shows cause why a remedy should not be granted the applicant in exercise of the court’s jurisdiction under section 476 of the Migration Act 1958 (“the Act”).  The relevant decision is one of the Refugee Review Tribunal (“the Tribunal”) made 21 November 2013.  That decision affirmed one of the delegate of the Minister made 31 October 2011 refusing the applicant a Protection (Class XA) visa (“the visa”).

2. The application is opposed and the first respondent seeks orders that it be dismissed with costs.

3. There have been intervening proceedings which, in part, ground the applicant’s complaint.

4. The applicant first made application to the Tribunal for a review of the delegate’s decision in an application filed 30 November 2011. 

5. The tribunal’s hearing was listed and conducted on 14 June 2012.  On 18 May 2012 the applicant was properly invited to appear.  He failed to appear at the hearing and without explanation.  The tribunal handed down its decision on 15 June 2012 affirming the delegate’s determination.

6. On 18 June 2012 the applicant contacted the tribunal.  He sought an adjournment by reason of having been medically unwell on the day of the hearing.  He apparently was both unable to attend on 14 June or to contact the Tribunal as to his illness.  Given that the Tribunal was functus officio by that time, an adjournment was not possible.

7. The applicant therefore sought judicial review of the Tribunal’s decision by way of an application to this court. My colleague Judge Riethmuller decided in the applicant’s favour finding that his non-attendance had been due to an illness. His Honour specifically found no fault in the Tribunal but considered that the applicant was denied procedural fairness in conducting the hearing in his absence pursuant to S426A of the Act.

8. His Honour then remitted the matter to the Tribunal for review. 

9. The Tribunal was constituted by the same member who had made the determination on 15 June 2012. 

10. The second Tribunal conducted its hearing on 15 October 2013.  The applicant on this occasion attended.  He gave evidence and made submissions.  It is clear that the applicant requested further time to provide other evidence in support of his application.  That request was granted for a period of three weeks.  He then made a request for a further one week extension of time which was also granted.

11. There is nothing in the material before me indicating that the applicant made any complaint before the second-constituted Tribunal as to bias or apprehended bias in the member on account of that member’s previous involvement.

12. There is nothing in the application for judicial review filed 23 December 2013 which indicates complaint as to bias or apprehended bias although the grounds of that application are not particularised.  The applicant swore an affidavit on 23 December 2013 and filed on the same day.  That affidavit notes at paragraph 4 that “the Tribunal was constituted by Sydelle Muling”.  The affidavit raises no complaint of bias or apprehended bias in Ms Muling.

13. The application filed 23 December 2013 sets out the following grounds:

    i)The Decision of the Tribunal is affected by an error of Law;

    ii)The Tribunal did not conduct the hearing according to Proper Legal Procedures;

14. On 7 August 2014, the applicant filed written submissions which, for the first time, raise the issue of reasonable apprehension of bias.  Those submissions contend:

    i)It is also well-established that, where a decision has been set aside for legal error, to remit the matter to the same individual decision-maker may give rise to a reasonable apprehension of bias. (see, e.g., Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, at 42-43);

    ii)The member was bias (sic) during the Hearing and in her decision because:

    1.   I was advised … to make notes and refer to the notes for help, as it is completely allowed to take notes with you during the hearing … but in the start of the hearing, member stopped me from referring to the notes by saying “I would prefer if you don’t refer to your notes.”;

    2.   The member stated “the Tribunal put to the applicant in hearing it, finds it implausible that if the BLA had attacked his home August 2007, because they were unhappy with his attendance at the Cadet College, they would not express this until some three years later.  Although the applicant responded that this had happened to other cadets who lived near him, the Tribunal does not accept on evidence before it that other cadets were targeted as the applicant claimed.” – actually what happened that during the hearing I told the member I can provide the evidence regarding the attacks that have happened to other cadets, but the member refused to take any evidence regarding that by saying, quote, “I don’t want anything provided, I need to hear about your situation”;

    3.   Inconsistency between the two Tribunal decisions in respect of evidence of an alleged missile attack on 26 August 2007;

    4.   That the Tribunal misconstrued the applicant’s evidence in respect of the missile incident and “the member is just twisting the words just to make the case against me”;

    5.   That the member was provided with a newspaper article as evidence of the said missile attack, but failed to obtain a legible copy of the document with proper translation, prior to her commenting that documents can be fraudulently obtained;

    6.   That the Tribunal did not properly test the genuineness of evidence from the applicant in the form of an alleged threatening letter before rejecting it as not genuine;

    7.   By the Tribunal member during the hearing commenting to the effect that “fraud is very common in Pakistan” within the context of the newspaper article referred to above, indicating a failure to bring an open mind to the evidence.

Relevant Background Facts

1. The applicant is a citizen of Pakistan.  He was born on 12 December 1988 and is therefore 25 years of age.  He was educated first at Cadet College Batrasi in Mansehra between April 2001 and July 2004.  His later education was at Government College University at Lahore between May 2005 and November 2007.  The Cadet College Batrasi specialises in educating and producing future officers for the Pakistan Army. 

2. The applicant is of Muslim religion and his family come from the city of Quetta in Baluchistan Province of Pakistan.

3. The applicant came to Australia from Pakistan legally in July 2008 on a student visa.

4. The applicant claims that, if returned to Pakistan, he may be killed or captured by a separate/terrorist group known as the Baluchistan Liberation Army (BLA) based in Baluchistan.  He says his fear comes from his education at the Cadet College;  he being of Pashtun ethnicity rather than Baluc;  and that his father had affiliations with a political party opposed to the BLA.

5. The applicant says that he cannot rely on the formal authorities for protection.

6. On 26 September 2011 the applicant made a submission to the Department.  He included evidence that on 25 December 2010 his family received a threatening letter from the BLA alleging support in the family for the Pakistan Army by reason of the applicant’s education at Cadet College.

7. On 19 October 2011 the applicant provided the Department with a copy of a letter addressed to the applicant’s father purporting to be from the BLA together with a translation and further accusing the father of betrayal to Baluchistan in sending his son to cadet school and providing a warning of punishment failing the father’s support of BLA.

8. At the hearing of the Tribunal on 15 October 2013 the applicant offered a further claim that his family house had been hit by a missile on 26 August 2007.  His evidence was apparently that he was not at the home at the time but was in Lahore.

Tribunal Findings

1. The second-constituted Tribunal made findings as follows:

   a)Whilst accepting that the applicant attended at Cadet College Batrasi, it was implausible that the applicant’s attendance at that college was an issue for BLA some five years after the applicant completed his education there given no apparent complaint or threat from BLA during the five years of his attendance and given that the applicant then lived in Lahore.  The Tribunal consequently did not accept that he or his family had been targeted by BLA because of the applicant’s attendance at Cadet College Batrasi;

   b)The Tribunal was not satisfied that the alleged letter from BLA was genuine.  The Tribunal noted that the BLA logo was written in English whereas the text was written in Urdu with apparent cutting and pasting.  In making this finding, the Tribunal considered independent information as to the availability of false documentation in Pakistan;

   c)The Tribunal found it “far-fetched” that should the applicant’s home be attacked and damaged in a missile attack by BLA on account of the applicant’s attendance at Cadet College Batrasi then the BLA would not alert the family to the fact or of their demands until some three years later in December 2010 which is when the applicant claims that his father received a written threat from BLA;

   d)The Tribunal did not accept that the applicant himself had been the victim of attack as claimed in his protection visa application;

   e)The Tribunal did not accept that the applicant’s brother was attacked on 13 March 2012 by the BLA as claimed by the applicant.  Whilst there may have been an attack, the Tribunal noted no connection with BLA in the police report submitted.  Rather, that report noted the assailants as being unknown motorcyclists and anonymous assailants;

   f)The Tribunal was able to find that the claim the applicant’s father was a member of the Pakhtunkhwa Milli Awami political party was not a basis for the applicant’s alleged fear of returning to Pakistan.  This finding was based on the reasons showing the direct question posed to the applicant at the hearing and the applicant responding in the negative.

   g)The Tribunal found that the applicant’s Pashtun ethnicity was not a basis for the applicant’s claimed fear of returning to Pakistan, as suggested in his protection visa application.  The reasons confirm that the applicant himself acknowledged that BLA targeting of Pashtun people was not common with the applicant equating his alleged fear of return to Pakistan on his previous attendance at Cadet College;

2. The Tribunal concluded that it did not accept that the applicant or his family had been targeted by BLA because of the applicant’s studies at Scout Cadet College Batrasi between 2001 and 2005.  It followed that the Tribunal could not find that the applicant faced a real chance of serious harm, now or in the reasonably foreseeable future from the BLA or affiliated groups because of his attendance at the Cadet College Batrasi.  The Tribunal did not accept the applicant’s general claims that the BLA target “normal, non-necessary, ordinary people”.

3. Given its findings that neither the applicant nor his family were targeted by BLA in August 2007, December 2010 or March 2012, the Tribunal found no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm from the BLA or their affiliated groups because of his attendance at the Cadet College Batrasi between 2001 and 2005 or by reason of his father’s political opinion or his Pashtun ethnicity.

The Remitter

1. The applicant says that the remitting of the hearing to the same Tribunal member raises a reasonable apprehension of bias or pre-determination. 

2. The applicant relied on a decision of the Full Court in Northern NSWFM Pty Ltd v The Australian Broadcasting Tribunal and Northern Rivers FM Radio Limited[1]. That matter concerned a determination of a Tribunal to the grant of an FM radio licence.  The judge at first instance noted:

   Nor was there any suggestion that the Tribunal member is in fact now unable to give a fair or just decision, merely that a reasonable person may entertain the suspicion that he may not bring an unbiased mind to his task, such that his determination might lack public and legal integrity.

   [1] (1990) 26 FCR 39

3. The trial judge directed the remitted hearing be conducted by a different Tribunal member.  The subsequent appeal was unsuccessful.  The Full Court cited Mason J in re JRL; ex parte CJL[2] in providing general principles in respect of an order for review on the ground of bias or apprehended bias:

   The problem is governed by the principle that a judge should disqualify himself from hearing, or continue to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues … this principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice.  This concern is expressed in the cognate principle that, not only must justice be done, it must seem to be done.

   There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used.  In the authorities, all that his previous decisions provide an unacceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”. 

   Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

   [2] (1986) 161 CLR 342 at 351-2

4. The applicant’s argument is that the Tribunal member is perceived to have already formed a view in the matter by reason of the first determination.

5. The Full Court in Northern NSW FM Pty Ltd[3] in dismissing the appeal, whilst making no criticism of the Tribunal member, preferred:

   …when decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing.

   [3] supra

6. The applicant’s argument also gleans some support, insofar as determinations of credit were made by the Tribunal member from the High Court in Smith v New South Wales Bar Association[4]  where the court observed:

   As the members of the Court of Appeal have twice made a voidable finding on the issue of truthfulness of the appellant, and as the matter must be heard afresh by the Court of Appeal, it would be inappropriate to ask the judges who had constituted that court to reassess de novo the appellant’s truthfulness.  The matter must therefore be remitted for hearing by a court differently constituted.

   [4] [1992] HCA 36 at [41]

7. Similarly, if there has been direct or stringent criticism of the Tribunal member by the appeal court then the perception of justice might demand the remitted hearing be conducted by a fresh mind[5].

   [5] Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189

8. The general principle relied upon by the applicant is perhaps best put by the High Court in Livesey v NSW Bar Association[6] that:

   …a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

   [6] [1983] HCA 17

9. The respondent, however, argues that the circumstances of the matter now before me are such that a reasonable person should not apprehend bias or pre-determination in the matter being remitted to the same Tribunal member.

10. The respondent emphasises that the matter was remitted by Judge Riethmuller on the technical basis of procedural fairness not being accorded the applicant in that he did not appear at the Tribunal hearing on account of illness.  Specifically, Judge Riethmuller was not critical in any sense to the findings of the Tribunal.  His Honour made no comment as to the decision itself but simply found in the applicant’s favour by reason of his non-attendance. 

11. I note that the matter then proceeded on the remitted hearing before the same member and without complaint by the applicant in the sense of fairness. However, when this issue was raised by me, counsel for the respondent properly conceded that the applicant appeared before the Tribunal without a legal representative and would be unlikely to have been familiar with the fineties of the notion of perceived bias.  At that remitted hearing the applicant was able to give evidence and make submissions.  Further, he requested and was granted a three week adjournment in order to adduce further evidence and subsequently an extension of a further week.

12. It is pertinent to consider a distinction between remitting to a Tribunal as distinct from a court and as observed by the High Court in Re Refugee Review Tribunal;  ex parte H[7], where their Honours said at [27] and [28] state:

    The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public.  There is some incongruity in formulating a test in terms of a “fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.

    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 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 proof.

    [7] [2001] HCA 28

1. That same distinction was noted by the Full Court in Comcare v Broadhurst[8]:

   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.

   [8] [2011] FCAFC 39 at [30]-[32]

2. In the matter now before me I am not satisfied that the applicant’s claim of perceived bias in remitting to the original member is made out.  In so deciding I note the following:

   a)Judge Riethmuller made no criticism of the process, findings or behaviour of the Tribunal member suggesting actual  or potential bias;

   b)The second hearing allowed the applicant to give evidence, adduce further evidence, and make submissions in addition to the material which was before the Tribunal at the first hearing;

   c)The reasons of the Tribunal member following the first hearing are noteworthy in their recognition of the absence of the applicant including:

   i)On the limited evidence before it, the Tribunal is unable to be satisfied that the applicant or his family have experienced any difficulties in the past, either because of his father’s political opinion or Pashtun ethnicity, or that the applicant will be targeted for these reasons on his return to Pakistan, now or in the reasonably foreseeable future.

   ii)Without further information, the Tribunal is not satisfied that the applicant has, in fact, experienced any problems, let alone been attacked in the past, for any reason including his Pashtun ethnicity, his education or his father’s political opinion or that there is a real chance that he will face persecution for these reasons, if he returns to Pakistan, now or in the reasonably foreseeable future [30].

   iii)Due to the lack of detailed information, and in view of the above findings, the Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention. [31].

   iv)As the applicant has failed to provide sufficient detail or supporting evidence, and has failed to attend a hearing, the Tribunal is unable to be satisfied on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Mauritius (sic) there is a real risk that he will suffer significant harm pursuant to s36(2)(aa) of the Act.

3. The inference therefore is that the Tribunal at first instance would have the preferred or being open to further evidence and explanation by the applicant at the hearing.  This opportunity was given to him at the second hearing.  The constraints on the evidence at the first hearing were properly noted by the Tribunal and obviously rectified at the remitted hearing.  The findings of the Tribunal at the first hearing were entirely open to the member and not criticised at judicial review. They were findings of fact open to a Tribunal which clearly noted the extent of and limitations of the evidence before it.

4. The applicant does not point to any particulars in the second determination indicative of pre-judgment of bias.  None are apparent on my reading of the second set of reasons.

Applicant’s claim that the second Tribunal failed to take into account relevant considerations in its decision

1. The applicant does not particularise this claim.  The applicant’s written submissions at paragraph 4(b) state:

   Although the applicant responded that this had happened to other cadets who lived near him, the Tribunal does not accept on the evidence before it that other cadets were targeted, as the applicant claimed.  Actually what happened that during the hearing I told the member I can provide the evidence regarding the attacks that have happened to other cadets, but the member refused to take any evidence regarding that by saying, quote, “I don’t want anything provided.  I need to hear about your situation”.  The actions of member refusing to take evidences regarding the incidences and yet rejecting the claim further invigorate my claims that the member was bias and had a closed mind.”

2. It was for the applicant to make out his case and adduce evidence.  He was given opportunity by reason of attendance at the hearing, an adjournment, and a subsequent extension.

3. The Tribunal member is entitled to direct questions which it considers relevant to the applicant.  It is clear that the Tribunal found as implausible the applicant’s claim that he would be subject to attack or violence from BLA some five years after he had left the Cadet College.  Consequently, the Tribunal’s question to the applicant is directly relevant to the applicant’s alleged personal fear of facing a real chance of serious harm or a real risk of significant harm from BLA attack or violence.

4. Similarly, at 4(c) of his written submissions the applicant complains in respect of the alleged missile attack on his home. It is clear that the Tribunal made a finding of fact and credit in this respect at[24] and [25]. The Tribunal makes clear reference to the applicant’s claim. A conscious consideration is obvious from the aforementioned paragraphs. The applicant’s complaint can therefore, in my view, only be as to the merits of the fact finding role of the Tribunal. It is not the function of this court to conduct another review on the merits.

5. At paragraph 4(a) of the applicant’s written submissions he complains that he was not able to reference his notes in the hearing before the Tribunal. 

6. The role of the Tribunal is inquisitorial.  The Tribunal is called upon to make findings of credit and disputed fact.  As such, it is entirely reasonable for the Tribunal to insist on the applicant answering questions other than by reference to notes.

7. At paragraph 4(e), (f) and (g) of his written submissions the applicant complains that the Tribunal did not accept corroborating evidence from a newspaper article in respect of the missile attack on his house.  He complains that the Tribunal did not seek out a better copy of the articles.

8. It is for the applicant to adduce evidence and argue his case.  The Tribunal is able, but not obliged, to undertake further investigation.  It is for the Tribunal to attribute weight to the evidence, be it the newspaper article in respect of the alleged missile attack or the alleged threatening letter to the applicant’s father.  The Tribunal proceeded to make findings of fact which were open to it.  I consider, therefore, the applicant’s complaint to be as to the merits of the Tribunal’s decision and consequently it is not open to this court to conduct yet another review on the merits.

Conclusion

1. I am not satisfied that any of the grounds of complaint of the applicant are made out such that the Tribunal’s decision is infected by jurisdictional error.  The application will be dismissed with costs. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  12 September 2014