NAKK v Minister for Immigration
[2004] FMCA 43
•10 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAKK v MINISTER FOR IMMIGRATION | [2004] FMCA 43 |
| MIGRATION – Review of RRT decision – where Tribunal told applicant at outset of hearing that it was his “last chance” to explain his circumstances – where applicant had a grasp of English – where it was apparent that applicant still required assistance of interpreter – where interpreter subsequently dismissed by RRT- where decision to continue without interpreter or postpone hearing was left up to the applicant – where Tribunal expressed concern that the applicant had not understood all that had occurred during the hearing- where transcript of RRT hearing before the court – whether applicant understood the questions asked – whether applicant understood importance of Tribunal’s questions about the inconsistent statements made by the applicant – whether failure to provide interpreter for entire hearing resulted in denial of procedural fairness – whether Tribunal had a “closed mind” incapable of alteration. |
Perera v Minister for Immigration (1999) 92 FCR 6
Adamopoulous v Olympic Airways (1991) 25 NSWLR 75
Long v Minister for Immigration (2000) 106 FCR 183
WACO v MIMIA [2003] FCAFC 171
VFAB v Minister for Immigration [2003] FCA 872
MIEA & The Refugee Review Tribunal v Surjit Singh (1997) 44 ALD 487
Dranichnikov v MIMIA (2003) 197 ALR 389
Prasad v MIEA (1985) 6 FCR 155
MIMIA v WAFJ [2004] FCAFC 5
VinodRam v MIMA [2002] FCA 1572
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122
NARV v MIMIA [2003] FCAFC 262
MIMA v Jia (2001) 205 CLR 507
| Applicant: | NAKK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL &INDIGENOUS AFFAIRS |
| File No: | SZ 571 of 2003 |
| Delivered on: | 10 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 January 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 20 January 2003 is void and of no effect.
The Court orders that the application be referred back to the Refugee Review Tribunal differently constituted to be heard and decided according to law.
Respondent to pay the Applicant’s costs assessed in the sum of $4750.00 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 571 of 2003
| NAKK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Bangladesh who arrived in Australia on 18 July 1999. On 31 August 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 9 November 1999 a delegate of the Minister refused his application and on
1 December 1999 he applied for review of that decision. On 24 June 2002 the Tribunal wrote to the applicant advising him that it had looked at all the information relating to his application but was unable to make a decision in his favour on that information alone and invited him to a hearing on 5 August 2002. On that date the applicant wrote to the Tribunal submitting a medical certificate. The hearing was adjourned until 9 August 2002. At that hearing there was admitted an “Extended statement”. In seeking a review of the delegate’s decision by the Tribunal the applicant indicated (CB [62]) that he required a Bengali interpreter. The Tribunal made its decision on 20 January 2003 and handed it down on 12 February 2003. The Tribunal determined to affirm the decision of the delegate.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion arising out of his membership of the Chatra League, the youth wing of the Awami League. His written statement indicated (CB [26] – [27]) that in 1995 he could not sit for examinations because of the Chattra Dahl who tried to kill him on a number of occasions. He stated that to stop his political activities his political enemies filed a number of false cases against him. He criticised the leaders of the Awami League and was ousted from the party as a result. He said that when he returned home he was persecuted due to the number of cases filed against him. There is found in the Court book (CB [29] – [53]) photocopies of an affidavit from the applicant’s father and court documents allegedly relating to the charges against the applicant.
In his supplementary statement (CB [73]) the applicant says:
“I used to live in a part of Chittagong City where the BNP (Bangladesh National Party) is most powerful organizing outpost. Due to our different ideology and political manifest we had severe clash in several occasion. Sometimes it was like war zone. During the Awami regime a lot of BNP activist were jailed for this reason. As BNP is in power now most of them came out from jail and take a revenge attack that causes a lot of death toll, lot of Awami activist are in jailed and most of my political colleagues are flee to India, Malaysia, Singapore and different corner of Bangladesh for their life. The environment is so adverse for me that I couldn’t dare to leave this country, as I am one of the most influential activists of Awami league at that time. If you surf the daily newspaper of Bangladesh you can find out the severe ness of this problem. I can produce some documents for your reference.”
The matters set out above form the background to the Tribunal hearing that took place on 9 August 2002. It is what occurred at that hearing that forms the basis for the relief sought by the applicant. The applicant moved the court on an amended application filed on 21 November 2003 the grounds of which were:
1. The Tribunal made [a] jurisdictional error in failing to accord the applicant procedural fairness in that the hearing proceeded after the Tribunal had dismissed the interpreter.
2. The Tribunal deprived the applicant of the hearing to which he [was] entitled under Part 7 of the Migration Act 1958
3. The Tribunal made [a] jurisdictional error in conducting the hearing in such a way that a reasonable person, aware of the nature of the Tribunal’s task, would have apprehended that the Tribunal was biased.
In support of that application there was filed an affidavit dated
20 November 2003 by the applicant. The relevant and admitted parts of which are as follows:
“ 4. I started giving evidence in English and I looked to the interpreter to explain some words. The member and the interpreter started arguing. It was terrible.
6. I was confused and worried. I thought if I have it another day that would not be any good because today is my last chance. So I thought I had to do it in English. It made me very worried and upset.
8. If I had known that I could have adjourned to another day with an interpreter without harming my case I would have definitely said yes. After the interpreter left, I just felt sick, and it kept getting worse.
9. My English is only basic on simple conversation. There is a lot I do not understand. I felt before the hearing that I would try to give most of my evidence in English but it became clear to me after the Tribunal member sent the interpreter away that I would have had to have used the interpreter a lot had he still been there.”
At the hearing before me Mr Young of Counsel identified two issues namely the fair hearing/natural issue and the apprehended bias issue.
The fair hearing / natural justice issue
The applicant tendered as exhibit 1 a transcript of the proceedings before the Tribunal. The applicant had the assistance of a Bengali interpreter. It is important to note that the transcript is only for the English language section of the hearing. The proceeding commenced with the following exchange:
Ms Smidt: Do you want the interpreter to interpret everything or do you want him here just to help when you need it, it’s up to you entirely.
Applicant: Yeah, just when I need it.
Ms Smidt: Just when you need it, okay, so that’s fine. It’s very important in that case if at any time you have difficulty understanding anything I say that you let me know immediately so we can fix up the problem as we go along, okay.
Applicant: Okay.
The evidence from the applicant in his affidavit is that he intended to look to the interpreter to explain to him words that he did not understand. The hearing proceeded with the Tribunal explaining that she was to decide whether or not she was satisfied that the applicant met the definition of a refugee and what was required within that definition. The Tribunal member commenced her explanation and was interrupted by the applicant advising her that he did not understand something. The Tribunal member began to enlarge upon her explanation when she was interrupted by the interpreter as follows:
Interpreter: Persecuted that term he does have a little problem understanding persecution just let me explain ---
Ms Smidt: No, I’m explaining persecution that’s my job. You can tell him how to translate the word into Bangladesh but I need to – if at the end he still has problems we can go through it and you can translate it.
Interpreter: That’s fine.
The Tribunal member continues with her explanation and the following exchange takes place:
Ms Smidt: …so that’s what we mean by well-founded so did you also have a problem understanding what’s meant by persecution?
Applciant: Yeah.
Ms Smidt: Well again, it’s for me to explain persecution – by all means, it’s for you to interpret but persecution is what I explained to you before, it’s serious harm or discrimination, do you understand that?
Applicant: I need some interpretation.
Ms Smidt: Do you – okay, all he’s going to do is tell you in Bengali what I just said, okay.
Applicant: Yeah.
The applicant submits that the importance of this exchange is that it indicates at an early stage that he was having difficulty in understanding some of the concepts being put to him by the Tribunal in respect of which he needed the assistance of the Interpreter.
There then took place an exchange between the interpreter and the Tribunal. The Tribunal suspected that the interpreter was not interpreting everything that she had said and was overreaching his mandate to explain things to the applicant. At T-5 to T-6, the following appears:
Ms Smidt: No, I can see you’re trying to help but that’s just not your job. It’s not for you to explain it’s for me to explain it it’s just for you to interpret in this context.
Interpreter: Okay that’s fine then in that case you’ve got to tell me particularly like what exactly you want me to interpret
Ms Smidt: I did but what I wanted you to interpret was that persecution is serious harm or discrimination or abuse of someone’s rights. Do you have any other questions about what persecution means in this context?
Applicant: No.
Ms Smidt: In future, Mr Interpreter, if we need you we’ll ask.
Interpreter: Okay, that’s fine.
Ms Smidt: But, Mr Applicant, it’s your responsibility to ask if you don’t understand, okay, you clear on that?
Applicant: Yeah, if I ask you or?
Ms Smidt: If you don’t understand you say, “I don’t understand” and then I’ll get the interpreter to ask, okay, or, alternatively, we’ll get him to interpret everything, okay, we’ll go on in English ---
The hearing then proceeded with a further explanation of what the Tribunal intended to do and included the following found at T-6:
Ms Smidt: I’ll also be letting you know a bit about my understanding of the situation today in Bangladesh insofar as it’s relevant to your application. If you think my understanding is wrong or inadequate in some way, this is your chance to tell me so and to explain why you think my understanding is wrong and what you think the situation really is, okay. Now after I’ve asked you the questions that I want to if there is anything else that you would like to add that’s relevant to your case then there will be an opportunity for you to do this and I’ll remind you that this is almost certainly the last chance that you will have to tell me about your case so if there is something that you haven’t already mentioned or something that you would like to emphasise then be sure that you do it today, okay. (Emphasis added.)
The applicant submits that these words are important because on objective assessment they could be said to have given him the clear impression that this hearing was his last real chance to persuade the Tribunal of his claim for refugee status.
The Tribunal asked the applicant about his membership of the youth wing of the Awami league. The following exchange takes place:
Ms Smidt: And did this continue up until you left the country – you stayed in that Party, you were still a member?
Applicant: Now?
The applicant submits that this exchange would tend to demonstrate the applicant’s difficulty in grasping the real meaning of questions from the Tribunal. The Tribunal answers the above question and it would appear that the interpreter then spoke to the applicant in Bengali. There followed an argument between the interpreter and the Tribunal member where first the interpreter threatens to leave and then the Tribunal dismisses the interpreter with the following words:
Ms Smidt: You may leave now, I’m not conducting the hearing with you, I’m sorry, but this is obviously not going to work, you may leave, thank you for your attendance, please go.
After the interpreter leaves the Tribunal told the applicant that it was up to him whether he wanted to proceed in English or whether he wished to have a hearing on another day with an interpreter. The applicant stated that he will proceed in English but the applicant says to the Tribunal:
Applicant: I’ve got a little bit confusing like ---
But he is cut off by the Tribunal who says to him:
Ms Smidt: Yes I remind you again though if you don’t understand at any time you must tell me because it’s essential that we understand each other and if you don’t understand we’ll stop the hearing and re-convene on another day, go ahead?
And continues:
Ms Smidt: Okay, but it’s your responsibility to tell me – you won’t be prejudiced – it won’t be held against you if you don’t understand and we have to stop you must let me know, okay. Okay, right, where were we? Do you want to take a minute to have a glass of water?
When the hearing continues there is the following short exchange:
Ms Smidt: Are you still a member of the Awami league?
Applicant: I’m in here.
which the applicant submits indicates further problems with his understanding of the Tribunal’s question.
As the hearing proceeded the applicant argues that a number of problems surfaced. For example, two inconsistencies between the applicant’s previous statements and what he was then saying. The applicant appears not to be given a full opportunity to answer the queries about the inconsistency before the question is changed. But perhaps most seriously the Tribunal does not explain clearly to the applicant that it is the existence of the inconsistency itself that is of most interest to her in deciding whether or not his story is credible. One could be left with the clear impression that the applicant thought that the Tribunal wished to explore the differences themselves rather than the reason for the difference. This confusion is seen again at T-16 in the following exchange:
Ms Smidt: And you didn’t mention it in this application – I find it difficult to believe you were arrested and detained for four months.
Applicant: I’ll show you if you want I can submit that papers any time
Ms Smidt: I’m sure you can submit more papers, my problem is that you didn’t say anything about it and therefore I doubt that it happened.
Applicant: You can – if you read that statements you can understand I was in custody.
Towards the end of the hearing the Tribunal expressed its concern as to whether the applicant had understood everything and told him that she would be going through the problems that she had with his case:
Ms Smidt: Okay, so the first one is that I have difficulty believing that you were arrested and beaten because you never mentioned that before today. I have difficulty believing that you had problems with the BNP and Jamaat Islam before you left because you didn’t mention that before today.
Applicant: Because the situation is changed.
Ms Smidt: Yeah, yeah
Applicant: I mean the situation is changed.
Ms Smidt: I know and that’s why ---
Applicant: Because that time I don’t need to - -
Ms Smidt: -- - I think you’ve changed your plans.
Applicant: No, no, I mean that time I don’t need to say that because Awami government is in power so I’ve got – I mean everybody when the Awami League government is in power so I can stay there if I can so because of this reason I have to leave my country you know I mean at this moment you can ask me like no problem at this moment because they …each other like you know Awami League, BNP and Jamaat Islam all the time they are antagonist between each other so that’s why I mentioned this things not that time because that time I mean everybody have BNP activities they’re put in gaol and go somewhere some country I mean they’re hiding themselves.
That exchange seems to me to be confusing. Whilst it might be possible for an outsider to give it some meaning, it must throw up a real doubt as to whether the applicant clearly comprehended what he was being asked and the effect of the words he was using in response.
At T-30 a question is asked which the applicant informs the Tribunal he does not understand and at T-32 the following:
Ms Smidt: I don’t believe that. I know that there’s violence but I don’t believe that they – if you decided just to be a quiet person or be at the bottom they may not have liked it but I don’t think they would have killed you.
Applicant: Yeah, they killed me.
Ms Smidt: No, you are alive.
The applicant submits that following the exchanges found at T-30 and T-32 the Tribunal should have been convinced that the applicant’s lack of understanding required her to abandon the proceedings and to re-hear the matter on another day in the presence of an interpreter. The applicant argues that there is a requirement for a fair hearing which continues throughout the proceedings and that in all the circumstances of this case he was not given the hearing that is mandated under Part 7 Migration Act. That failure involved a common law denial of natural justice. The applicant argues that the hearing which took place was not serving any purpose other than to enable the Tribunal to come to a decision it had already arrived at because the applicant’s problems with English made it impossible for him to convince the Tribunal of the justice of his case.
In coming to a finding about these matters it is important to read the transcript as a whole. One cannot make findings on the basis of selected extracts but those extracts can serve to establish the existence of jurisdictional error. I believe that it is clear from the transcript that the Tribunal was aware of the importance of the applicant understanding the whole process and sought to ensure that he acknowledge that he did so. But that is not the end of the matter. In Perera v Minister for Immigration (1999) 92 FCR 6 at [34] Kenny J quoted from Adamopoulous v Olympic Airways (1991) 25 NSWLR 75 as follows:
“ ‘The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person’s own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law …Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command… is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at speed and in accents not fully understood.’
Those observations are relevant to the situation of an applicant for refugee status who, like Mr Perera, is able to use English for some purposes, even professional purposes, but is insufficiently proficient to give evidence before the Tribunal in support of an application vital to his or her future prospects.”
In Long v Minister for Immigration (2000) 106 FCR 183 at [43] Mansfield J discussed how the credit of an applicant was of critical importance and said that:
“The Tribunal in many instances has rejected an applicant as a reliable reporter of past events because of inconsistencies in, or inadequacies, the evidence given by the applicant at the hearing.”
The Tribunal’s reasons for decision at CB [87] make it clear that these inconsistencies were a reason for the applicant not to have been found to be a credible witness. Thus the importance of the applicant understanding what was really being sought in questioning concerning inconsistencies was vital.
Cases such as Perera and Long or Liu v Minister of Immigration (2001) 113 FCR 541 make it clear that an insufficiently interpreted hearing is not a proper hearing within the terms of Part 7. But as was made clear in Perera at [37] it is for the Tribunal to decide whether an interpreter is called for and whether a reliable interpretation is being made. In WACO v MIMIA [2003] FCAFC 171 the Full Court commented that:
“If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them”
In this case the Tribunal accepted at the beginning of the hearing the need for some form of interpretation. After the first series of questions it became clear that the applicant did not understand everything and did need help. There then occurred the dispute between the interpreter and the Tribunal. The merits of that dispute are irrelevant. I have little doubt that an objective observer would believe that it was likely to have upset the applicant. In his affidavit the applicant said that he was upset. The extracts from the transcript which have been produced indicate to me that his need for interpretation did not diminish following the leaving of the interpreter. I also find that, despite the Tribunal’s well meaning efforts to ensure that what she said was understood, she appears to have abrogated her responsibility to ensure that he was being given a fair hearing by requiring him to make it clear to her when he did not understand a question. Asking someone to tell you when they do not understand a question ignores the possibility that an applicant could believe that he understood the question when he clearly did not. It also leaves out of the equation the possibility that he does not understand the reason why the question is being asked. In this regard I point particularly to the questions concerning inconsistencies and the failure of the Tribunal to explain to an applicant, who did not have an interpreter and whose English was obviously limited, that what was required from him was not so much an explanation of the new information but an explanation of why it was only now being brought to the attention of the Tribunal.
I take the view that once the Tribunal had accepted the necessity of an interpreter and that necessity had been established by the early confusion then the fair hearing rule required that the whole hearing be undertaken in the presence of an interpreter.
I would also state that I accept the applicant’s submission that he was influenced not to ask the Tribunal to abort the hearing when the interpreter left by the remarks made by the Tribunal concerning “last chance”. I make no criticism of the Tribunal for making those remarks because they were, in all probability, absolutely correct at the time they were made. But things then changed and although there is one reference to “not being prejudiced” this could be read in the context of that hearing rather than another hearing. An objective observer might feel that the Tribunal had not made this sufficiently clear to the applicant and that he may have been influenced to agree to continuing in English because of the affect upon him of those earlier remarks.
I am of the view that looking at the hearing through the transcript as a whole the applicant was denied procedural fairness when the Tribunal did not of its own motion adjourn the hearing so that an interpreter could be made available. I think that the failure to provide an interpreter prevented the applicant from obtaining an effective hearing and was thus a failure to comply with the requirements of Part 7 of the Act.
The apprehended bias issue
In VFAB v Minister for Immigration [2003] FCA 872 Kenny J notes that the test for apprehended bias in relation to curial proceedings is well settled.
“The test 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: see Ex parte H (2001) 179 ALR 425”
In that case the court held that in the circumstances having regard to the transcript of the hearing before the Tribunal “a fair minded lay observer or properly informed lay person might infer that there was nothing that the prosecutor could say or do to change the Tribunal’s preconceived views that he had fabricated his account of the events upon which he based his application for a protection visa: see Ex parte H at [435].
In this case the applicant argued that the transcript indicated that the Tribunal had a closed mind particularly in relation to the documents issue. The applicant had produced certain documents which he alleged proved that false charges had been laid against him. The Tribunal took a robust view of these documents which she made clear to the applicant she did not believe were genuine. One of the reasons for this was that the documents did not name the applicant by the name known to the Tribunal and the Tribunal did not accept the applicant’s explanation. The Tribunal indicated that documents had in the past been checked by the Tribunal through DIMIA but that the Tribunal was not prepared to do that in this case although the applicant requested that it do so. There is discussion about these matters between T-16 and T-18 and it is argued by the applicant that at T-23 the Tribunal puts to him her views about the documents but does not give him an opportunity to explain them. When he does try and argue for the genuineness of the documents at T-24 he is cut off. The Full Court discussed the obligation of the RRT to make inquiries in MIEA & The Refugee Review Tribunal v Surjit Singh (1997) 144 ALR 284 at 291
“ [the] Tribunal’s role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.
In our view the respondent has fallen short of showing that the Tribunal’s failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come.”
I think that whilst it is clear that the Tribunal took a sceptical view of these documents I do not think that the informed observer would find that she had a closed mind not capable of persuasion. My reading of the transcript indicates that what the Tribunal was actually doing was making it quite clear to the applicant what was needed to satisfy her that these documents were indeed genuine and that the satisfaction must come from what he did rather than from what she did. This position has been clearly articulated by the High Court in Dranichnikov v MIMIA (2003) 197 ALR 389 at 78:
“The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.”
And also in the frequently cited case Prasad v MIEA (1985) 6 FCR 155 at 169-70:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him.”
There is another reason why I could not say that the applicant has brought himself within the type of apprehended bias found within VFAB. That is because the documents are not really relevant. The Tribunal came to the view, supported by country information, that even if the charges had been laid against the applicant then he could fight them in the higher courts where he would receive a fair hearing according to law.
In all the circumstances I would not find that the Tribunal had demonstrated an apprehension of bias and grant review on that ground. However, I take a different view in regard to the fair hearing. I must therefore consider whether this failure constitutes a jurisdictional error.
In MIMIA v WAFJ [2004] FCAFC 5, after discussing the difficulties experienced by the respondent as a result of interpretation services being provided by video link, the Full Court said:
“I am satisfied that …the respondent was denied a fair hearing and, therefore, that the review conducted by the Tribunal was not carried out according to law.”
In Perera v MIMA (1999) 92 FCR 6 at [21] the court said:
“Given that, absent an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence, then in my view, the Tribunal lacks the jurisdiction to continue the hearing before it unless it provides an interpreter.”
In VinodRam v MIMA [2002] FCA 1572 Kenny J said at [25]:
“If an obligation to provide an interpreter arises at all, it is because the absence of an interpreter is inconsistent with the obligation imposed by s 425(1) of the Act to invite the applicant to appear before the Tribunal to give evidence and present arguments.”
I am satisfied that the failure to ensure an interpreter was present throughout the hearing constituted a jurisdictional error on the part of the Tribunal which takes this case out of the reach of s.476 of the Migration Act 1958.
But even where jurisdictional error is shown the court has a discretion as to whether or not to grant relief. The test to be applied was set out by McHugh J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 and recently approved by the Full Court in NARV v MIMIA [2003] FCAFC 262 at [17]:
“Once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.” (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145)”
I have found that the Tribunal did not appear to have a mind “incapable of alteration”: MIMA v Jia (2001) 205 CLR 507 at 532. That being the case it must be possible, even if unlikely, that at a properly conducted hearing the applicant could convince a Tribunal of his cause. I propose to grant review.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM
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