NBMB v Minister for Immigration
[2007] FMCA 1168
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBMB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1168 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nepal on several bases – applicants’ claims rejected – numerous jurisdictional errors alleged, including apprehended bias and breaches of ss.424 and 424A of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.412, 414, 420, 424, 427, 424A, 441A, 475A, 476 |
| Bruce v Cole (1998) 45 NSWLR 163 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 Khan v Minister for Immigration (1987) 14 ALD 291 Minister for Immigration v Anthonypillai (2001) 106 FCR 426 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Yusuf (2001) 206 CLR 231 MZWBW v Minister for Immigration [2005] FCAFC 94 NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Rezaei v Minister for Immigration [2001] FCA 1294 SZBYR v Minister for Immigration [2007] HCA 26 SZEJF v Minister for Immigration [2006] FCA 724 SZGPO v Minister for Immigration [2007] FCA 648 SZHWY v Minister for Immigration [2007] FCAFC 64 SZICT v Minister for Immigration [2006] FCA 1144 Thirukkumar v Minister for Immigration [2002] FCAFC 268 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| First Applicant: | NBMB |
| Second Applicant: | NBMC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 460 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 19, 31 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG460 of 2007
| NBMB |
First Applicant
NBMC
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 11 January 2007 and was handed down on 23 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The background facts concerning the applicants’ asserted fear of persecution and the Tribunal decision on the review application are set out in the Minister’s initial written submissions.
I adopt as background, with minor amendments, paragraphs 6 through to 14 of those written submissions:
The first applicant[1] is a national of Nepal and her stepson is the second applicant. She claimed to fear persecution because of her Christian beliefs, her Limbu ethnicity and because she was a perceived political “class enemy” of the Maoists (the latter being a result of her being linked to a family of teachers and also a Christian) (relevant documents (RD) 346.6). She also claimed to fear persecution upon the basis that she was perceived by the authorities as a Maoist supporter (RD371.4). The Tribunal further outlined the applicant’s claims of evidence at RD346-360 and 364-369. The second applicant made no claims of his own and the fate of his application depended upon the outcome of his stepmother’s application.
The protection visa application had been made on 5 October 2004 and had been refused by a delegate on 25 November 2004. The applicants applied to the Tribunal to review the delegate’s decision on 2 June 2005. There was a decision by Member Professor Blay, which became the subject of consent orders made in the Federal Magistrates Court on 2 May 2006 setting aside the decision and remitting the matter to the Tribunal to be determined according to law (RD343.5; 283).
The Tribunal then received a number of written submissions, reports and other documents over a period of months before and after its hearing which took place on 7 August 2006 (RD343.6). At the said hearing, the applicant gave evidence. The applicant was assisted at the hearing by a registered migration agent. There was also an interpreter.
After the hearing concluded, the Tribunal sent an invitation to the applicants under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) (RD302-304) to which a response, dated 31 August 2006, was received on 1 September 2006 (RD343.9).
At RD343.9-344.1, the Tribunal explained that further submissions were made by the applicants dated 7 September, 1 October, 4 October, 5 October and 27 November 2006 and the Tribunal continued to examine relevant independent reporting on the situation in Nepal. The Tribunal referred to some one thousand pages of material being submitted, causing it to be unable to complete the review within ninety days (RD344.1).
The Tribunal ultimately was not satisfied that the applicants faced a real chance of persecution for a Convention reason in Nepal. The findings and reasons leading to that conclusion are set out at RD369-374.
The Tribunal decided to rely on the applicant’s translations of her oral evidence of 7 August 2006 as more accurate and complete translations of that evidence, over the interpretation given by the interpreter who was engaged on that day (RD370.3) – but still had difficulty with the applicant’s “performance” in this matter as a witness of truth (RD370.3).
The Tribunal found much of her evidence inconsistent or implausible (e.g. RD370.7; RD372.4-372.8), or fabricated and unconvincing and/or a revision (RD370.5; RD372.1). In some respects, the Tribunal also referred to changes that had taken place (as to the situation between the Maoists and the authorities – RD371.6 and RD373.7) and to the ability of Christians to practise in Nepal without facing persecution (RD373.8‑374.1).
The Tribunal was not satisfied that the applicant faced a real chance of persecution for her imputed political opinion (RD371.5), her religion (RD373.6), her ethnicity (RD374.2) or any other Convention reason (RD374).
[1] In this judgment any references to “the applicant” are references to her
The application
These proceedings began with a show cause application filed on 13 February 2007. The applicants asserted actual notification of the Tribunal decision on 23 January 2007. On that basis I find that the application was filed within time. The applicants now rely upon a further amended application filed on 4 June 2007. Although that application incorrectly identifies jurisdiction arising under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act, there is no doubt that the Court has jurisdiction to deal with the application under s.476 of the Migration Act. The further amended application raises the following grounds of review:
1.The decision of the second respondent signed 11 January 2007 is in breach of section 414 Migration Act 1958 as the Tribunal has not reviewed the delegate’s decision as required by the Act and
2.The decision of 11 January 2007 breaches section 420 as it took the Tribunal six months to reach a decision and
3.The decision is flawed with apprehended bias arising from the conduct by the Tribunal Member prior to, during and after the hearing of 7 August 2006 and consequently constitutes an error of law as particularised as follows
(particulars of fraud or bad faith if alleged (Order 54B, rule 2)
(a)Pre hearing the Tribunal refused an adjournment application depriving the applicant of an expert witness who may had assisted the Tribunal with evidence relevant to the issues to be determined;
(b)During the hearing of 7 August 2006 the Tribunal:
(i) put evidence to the applicant stating it was inconsistent when in fact it was consistent;
(ii) was overbearing to the applicant asking her whether he had to ‘squeeze’ information from her and telling her to ‘wind it up’ when she was answering a question;
(iii) framed questions that were long, convoluted and which, contain multiple questions to which answers were not sought; the applicant complained through the interpreter that she did not understand but her complaints were ignored by the Tribunal Member;
(iv) pressed the applicant for the advice she received from her Migration Agent – advice given in confidence to her by her Agent;
(v) misquoted to the applicant the applicant’s evidence to a previous Tribunal;.
(vi) Refused to have the applicant’s one witness give evidence.
(c)Post hearing the Tribunal made no inquiry of two documents that supported the applicants’ case and made no response to the evidence supplied by the applicant concerning a contemporaneous Tribunal decision regarding Christians in Nepal.
4. The Tribunal recorded that it received 1000 pages of submissions and information from the applicant. There is no evidence on the record that the Tribunal ‘had regard to’ any of this material in making the decision as required pursuant to section 424.
5.The Tribunal’s 424A letter post the hearing of 7 August 2006 is inaccurate and confusing.
6. In writing its decision the Tribunal has misquoted the evidence to conclude that the applicant has given inconsistent evidence which lead to adverse credibility findings.
7.The interpretation of the hearing of 7 August 2006 was inaccurate.
The evidence
I received as evidence the book of relevant documents filed on 11 April 2007. I also received the affidavit of Bill Gerogiannis made on 3 May 2007 and filed on the same day, to which is annexed a transcript of the hearing conducted by the second Tribunal on 7 August 2006. In this judgment, references to page numbers in that transcript are references to the typed page references at the base of each page. I also received the affidavit of Oliver David Young made on 13 July 2007 and filed on 18 July 2007, to which is annexed a transcript of the hearing conducted by the first Tribunal on 16 February 2005 and 22 February 2005. That hearing had been adjourned on 16 February 2005 part completed and the transcript of the adjourned hearing is not numbered consecutively. However, consecutive numbers of the pages of the combined transcript have been hand stamped on the affidavit and in this judgment I adopt that numbering scheme. At my request counsel for both parties adopted the same numbering scheme in amended submissions.
Submissions
Both parties made extensive written and oral submissions through their counsel. Grounds 2 and 7 in the application were not pressed but the other grounds are pressed[2]. The applicants’ written submissions are relevantly as follows:
[2] Ground 7 was abandoned on the first day of the trial on 19 July 2007. Ground 2 was abandoned on the second day on 31 July 2007.
Breach of section 414 Migration Act 1958
The Migration Act provides at s. 414(1) that if a valid application is made under section 412 for review of an RRT – reviewable decision, the Tribunal must review the decision. Rares J. in SZEJF v MIMIA [2006] FCA 724 (9 June 2006) stated at para 38 ‘In exercising its function of conducting a review under s.414(1) of the Act the tribunal cannot simply act perfunctorily. Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review’. At para 39 his Honour stated: ‘at the conclusion of its review the tribunal must give “proper, genuine and realistic consideration to the merits of the case”’.
It is submitted that, looking at the evidence in its totality, the Tribunal acted perfunctorily and has not given proper, genuine and realistic consideration to the merits of the applicant’s case.
…
Apprehended bias before, during and after the hearing of 7 August 2006
The applicants rely on the decision in SZELD v MIMA [2006] FMCA 74 (27 January 2006) of his Honour Lloyd-Jones FM as a useful summary of the law for apprehended bias quoted in the applicant’s submissions dated 30 April 2007 and filed 3 May 2007 at paragraph 10.
It is submitted that the evidence supports the proposition that the Tribunal member did not bring an impartial mind to the resolution of the question to be decided and that the Member was not open to persuasion as illustrated by the following examples of his conduct of the matter before, during and after the hearing.
Refusal to postpone the hearing date – Ground 3(a)
On 19 July 2006 the Tribunal invited the applicant to a hearing scheduled for 7 August 2006 [RD] 287. On 24 July 2006 the applicant’s authorised recipient responded [RD] 299. The agent advised the Tribunal that the applicant was ‘eager to have Pastor David Boyd to appear as a witness at the hearing as he can provide evidence about her Christian commitment and also the situation for Christians in Nepal. Unfortunately Ps Boyd will be overseas at the proposed hearing date so we respectfully ask that the hearing be delayed until he returns’. The agent then provided dates when the Pastor was unavailable [RD] 291.
It is evident the Pastor would have been available after 20 August 2006 i.e. if the hearing were to be delayed by two weeks then he could appear for the applicant to give evidence about the applicant’s faith and about ‘the situation for Christians in Nepal’. It was a claim by the applicant that as a Christian in Nepal she was ‘under threat’ [RD] 8.
The application for a delay in the hearing date was refused on 26 July 2006 [RD] 296. As the applicant’s ‘expert witness’ was overseas she was deprived of her witness giving evidence and the Tribunal deprived itself of a witness who could have assisted the Tribunal with relevant evidence of the situation for Christians in Nepal.
Conduct of the Tribunal hearing
Misquotation of evidence at the hearing – Grounds 3(b) (i) and (v) and misquotation in the findings – Ground 6
The Tribunal has misquoted evidence given by the applicant to the previous Tribunal constituted by Professor Blay at hearings on 16 and 22 February 2005 by putting that evidence inaccurately to the applicant in the hearing on 7 August 2006 and then has written inaccurate Findings as follows:
In its Findings at [RD] 372 the Tribunal states ‘..she told the previous Tribunal that she did not regard ‘religion’ as the basis of her protection application, except where her “religion” intersected with being targeted for mercenary reasons by the Maoists. Her claimed fear of persecution in Nepal for reasons of “religion” is, on the evidence before the Tribunal an afterthought. Owing to the applicant’s lack of credibility and to her inconsistent commitment to claiming fear of persecution in Nepal for reasons of being an evangelical Christian, the Tribunal does not accept that the applicant was a Christian in Nepal’ .
The applicant did not tell the previous Tribunal that she did not regard religion as the basis of her protection application. At A28 line 2 (the hearing on 22 February 2005) the applicant stated: ‘..if you get baptised there you get harassed. You, people burn you down, they harass you. They persecute you in the villages, if you become a Christian’. The applicant answers ‘yes’ to the question had she ever been subjected to persecution because she was a Christian A28 line 17.
At A29 line 8 the applicant said ‘But me problem doesn’t end in, one, just me being Christian. But then because of the Maoist and because of all the other problems..’. There is no evidence that she did not regard religion as the basis of her application and that that basis was not separate from her fear of the Maoists. The applicant states she has ‘two reasons’ for seeking protection at A38 line 15.
The Findings refer to her inconsistent commitment to claiming fear of persecution in Nepal of being an evangelical Christian CB 372. The Tribunal in questioning the applicant about her commitment to Christianity again misquotes evidence from the previous Tribunal. In the transcript of 7 August 2006 the Member repeatedly asserts that the applicant, in the previous Tribunal, said she went to church services T4 line 36 ff. The true position was that at A22 of the previous hearing of 16 February 2005 at line 18 the applicant was asked: “..in Nepal as a Christian did you attend any churches at all?” Applicant: “No”.
In contrast the Member in the 2006 hearing presses on: “But you’ve already said in your evidence that you did go to church services”. Applicant: “I didn’t tell that I went to church when I was in the courtroom”. Tribunal: “You said you went to church services”. Applicant: “No, I didn’t tell”. Tribunal: “Yes you did”. Applicant: “There was no church there..”
In the Findings at [RD] 371 the Tribunal refers to the applicant having given inconsistent evidence of regarding the circumstances of how the applicant converted and refers to claims at one stage that she converted with ‘other family members’.
In the hearing of 16 February 2005 she stated she became a Christian in 1993 – A22 line 8. There was no claim that other family members were involved at the hearing or at the adjourned hearing on 22 February. The applicant did not claim that her parents were Christians T6 line 39 where the Member asks her ‘Your mother and father, were they Christian?” and the applicant replied “They are not”.
The Tribunal was over bearing and intimidating – Ground 3(b)(ii)
In addition to the example in paragraph 18 above where the Tribunal badgers the applicant with the wrong evidence, other examples of the Member’s conduct and attitude include: T18. The Member has been questioning the applicant in a series of questions about what she knew about the refugee status system in Brunei. This culminates in the Tribunal asking “Yes, but do I have to squeeze information from you saying exactly…”; later at T22 the Member says ‘Can you wind up this a little bit soon?’
It is submitted that the language and attitude of the Tribunal – read as a whole - is, in the context of a hearing to enable the applicant to put her case, offensive and, given the power imbalance between the applicant and the Member, overbearing and intimidating towards the applicant.
The Tribunal’s questions were long, convoluted and confusing – Ground 3(b)(iii)
At the hearing on 7 August 2006 the applicant gave her responses via a Nepalese interpreter. It is submitted that on any reading of the 28 page transcript there are several examples of questions that contain multiple questions that are convoluted and confusing see T17 Mr Hardy “What if I..”; T18 “Yes, but do I have to squeeze..” and T23 beginning “Well let’s get closer to your claims now..”.
The applicant states she does not understand at T24 “It’s very long so I couldn’t understand”, bottom of T24 “I would like the applicant to repeat the – because its very long”. At this point the Tribunal admits the interpretation got ‘jammed’. At T26 Mr Hardy “Yes I do too …” after which the applicant asks “Is that the question?”
The Tribunal pressed the applicant to reveal confidential advice – Ground 3(b)(iv)
It is submitted that it was inappropriate, intrusive and intimidating for the Member to question the applicant on the advice she had been given by her agent. See T16 and T17.
Refusal to have the applicant’s witness give evidence – Ground 3(b)(v)
The applicant brought one witness to the hearing, a friend Lokman Limbu. He was asked to leave the hearing room on the basis he was a witness. There is no evidence that the Tribunal consulted the applicant on whether she wanted him to give evidence – see T27. The Tribunal’s apparent attitude is counter to the advice in the invitation to the hearing letter dated 19 July 2006 at [RD] 287 where the invitation reads ‘You can also ask the Tribunal to obtain oral evidence from another persons or persons’. The applicant did not ask but bearing in mind she had just finished giving her evidence in the way advanced in these submissions and Mr Limbu was still outside the hearing room, she was never given the opportunity. This adds to the submission of the perfunctory attitude of the Tribunal.
Post hearing – selective use of documents – Ground 3 ( c )
The further amended application refers to the Tribunal making no inquiry of two documents and no response to a third document. The applicant submits that the Tribunal’s use of documents is illustrative of the selectivity by the Member of material that ‘goes one way’: NADH of 2001 v MIMIA (2004) 214 ALR 264 at [115].
The applicant provided, and the Tribunal accepted, some ‘1000 pages’ in a series of submissions dated 31 August 2006 (the 424A response) and 7 September, 1 October, 4 October, 5 October and 27 November 2006.
The Tribunal records at [RD] 343 ‘Over the period in which these submissions arrived, and since, the Tribunal continued to examine relevant independent reporting on the situation in Nepal’.
Over a period of three months – September, October and November 2006 – the Tribunal was making its own inquiries resulting in the Tribunal stating at [RD] 344 that it was unable to complete its review within the prescribed period of 90 days.
The Tribunal spent three months continuing to ‘examine relevant independent reporting on the situation in Nepal’ resulting in it referring to eleven reports. Of the eleven reports, the Tribunal commented at [RD] 364 on a website report dated 5 July 2006 on the exhumation of a Pastor: ‘This claim has some relevance to the Applicant’s claim about being suspected by the authorities of being a Maoist supporter at the same time as allegedly being known to them as a Christian’ .
Neither did the Tribunal appear to be persuaded by the final article dated 24 December 2006 at [RD] 369, where the Nagaland Post reported that at a function organised by the Nepal Christian Society, attended by 500 people, that ‘demands were raised for protection to the minority Christians’. At the same event the General Secretary is reported to have said that though the Nepal was a secular state that ‘many laws have to be changed for total religious freedom’.
Of the documents the applicant supplied to the Tribunal post the hearing the Tribunal at [RD] 367 refers to evidence of ‘reports of localised harassment of Christians’ and instances of parishioners ‘relocating to Kathmandu to escape family prejudice and harassment.’ This appears to be the only response to the applicant’s 1000 pages of material.
There was no response to a Tribunal decision provided by the applicant to the Member concerning another applicant who claimed fear of persecution in Nepal on the grounds of being Christian. See below.
It is submitted that the Tribunal has been selective of material going one way indicating a closed mind NADH of 2001 v MIMIA (2004) 214 ALR 264 at [115].
Breach of s.424 Migration Act 1958 – Ground 4
On 15 July 2006 the Tribunal wrote to the applicant inviting her to submit documents pursuant to section 424 of the Act [RD] 284. A further letter dated 19 July 2006 sought ‘any new documents or written arguments you want the Tribunal to consider’ [RD] 287.
The Tribunal records that 1000 pages of documents were received by the Tribunal. Not one of the documents is referred to specifically in the Tribunal’s 33 page decision of 11 January 2007 with the exception that statutory declarations ‘attesting to her having been a Christian in Nepal’ were given no weight by the Tribunal [RD] 372.
On 14 November 2006 the applicant brought to the attention of the Tribunal the decision of Professor Blay dated 18 September 2006 [RD] 333 and 334. At this time the Member was still conducting research into the situation in Nepal.
Professor Blay stated in his decision: ‘The Tribunal’s view (regarding whether it was more probable than not that the applicant may have been attacked while preaching in Nepal) is based on independent country information that indicates that frequently Christians have been attacked for proselytising in the country’.
In regard to discrimination against Christians the other Tribunal constituted by Professor Blay stated at CB 334 ‘It therefore would seem to be the case that the provisions in the Constitution that prohibit proselytising is directed at those religions that permit proselytising. In this regard while the Constitution provision has an element of a law of general obligation, it is unduly skewed towards particular religions in the community…The Tribunal is accordingly sympathetic to the view that Christians who insist on spreading or sharing their faith ..run an unduly high risk in the community of being persecuted for their religious beliefs’.
It is submitted that the lack of reference in the reasons to this material – a decision concerning the same country and a decision by another Tribunal contemporaneous with this Tribunal’s post hearing investigations – indicates not only a closed mind on the part of the Member and selectivity but also indicates a breach of section 424 that requires that the Tribunal ‘must have regard to’ information that it gets in making the decision on the review.
There is no evidence that the Tribunal had regard to the material concerning Professor Blay’s decision which was submitted by the applicant and which on any view was relevant to the conduct of the review. Relevant as Professor Blay had apparently sourced country information when he says at [RD] 334 ‘The Tribunal’s view in this regard is based on independent country information that indicates that frequently Christians have been attacked for proselytising in the country’.
Professor Blay’s ability to locate country information supportive of another applicant’s claim for protection is in contrast to the Member’s use of independent information at [RD] 373 and his statement at T23 ‘Every week I look for evidence that proselytisers or Christians from evangelical churches are being prosecuted and therefore persecuted. I look for evidence of sustained and systemic persecution of Christians, and I’m finding virtually nothing’.
The Tribunal’s s.424A letter of 7 August 2006 is inaccurate – Ground 5
Item 2 The applicant did not tell the previous Tribunal that she was baptised two years before the February 2005 RRT hearing. See A27 line 20 of 22 February 2005 where the applicant states she was baptised in Australia ‘recently’.
Item 5 The Tribunal asserts that the applicant appears to have abandoned her claims as they relate to race and she is invited to comment. T22 indicates that the Tribunal put to the applicant a leading question that her only ground for her fear is her religion and the transcript shows she was not allowed to answer the Tribunal’s question. There is no response by the applicant or indication she was allowed to speak. The Tribunal refers to asking the applicant about ‘facts about your family’s current existence’. This appears to relate to T9 of the transcript where the applicant is asked about her stepdaughter but it appears the applicant was not asked questions of her family regarding their race or ethnicity.
In his oral submissions, counsel for the applicants addressed in detail the transcripts of the first and second Tribunal hearings in an endeavour to demonstrate a case of apprehended bias by the second Tribunal. The transcript references relied upon in oral argument were more extensive than those identified in the written submissions, which was of concern to counsel for the Minister. However, the Minister suffered no prejudice as I invited additional and corrected written submissions from both parties and it was not possible to complete oral argument on the first day of the hearing.
The Minister’s written submissions were extremely extensive and it is unnecessary to reproduce them in full here. The submissions, to the extent accepted by me, are reproduced in amended form later in these reasons. Briefly, in relation to the grounds of review, the Minister contends:
a)there was no breach of s.414 of the Migration Act because it is neither alleged nor shown that there was any application of policy without regard to the merits, or a wrong test employed, or a failure to consider any claim that the Tribunal was obliged to consider, as opposed to mere evidence;
b)section 420 of the Act is merely a “exhortative” provision;
c)the evidence does not support the allegation of apprehended bias either by the “refusal” to postpone the hearing date, the alleged misquotation of evidence at the first Tribunal hearing, the alleged “overbearing and intimidating” attitude of the presiding member, the “long, convoluted and confusing” questions put by the presiding member, the alleged pressure on the applicant to reveal confidential advice, the alleged refusal to have the applicants’ witness to give evidence, or the alleged selective use of documents;
d)there was no breach of s.424 of the Migration Act because no request was made pursuant to that section; and
e)the alleged inaccuracies in the Tribunal’s s.424A letter are based in part upon an unproven assumption that Professor Blay had not accurately recorded the evidence given at the first Tribunal hearing but in any event no jurisdictional error is established. If the evidence had been misdescribed in the s.424A letter the applicant would have had the opportunity to correct any misunderstanding to the response to the invitation to comment. There was no inaccuracy in the Tribunal letter but even if the letter had reflected a misunderstanding of what had been said, there would be no jurisdictional error purely as a result of the Tribunal sending the s.424A letter in the terms in which it was framed. The Tribunal was entitled to direct the applicant, as it did, to its impression of her evidence at the time.
Reasoning
This case involves, in substance, a comparison between two Tribunal hearings, and the resulting Tribunal decisions. Although infected by jurisdictional error, the first review was, in my view, more thorough, more detailed, and more readily understandable than the second. Because the second review in these respects compares unfavourably with the first, the applicants are concerned, in particular about an apprehension of bias on the part of the second Tribunal. There is variability in the quality of decision making on the Tribunal. It would be unrealistic to expect otherwise. But such variability should not, and does not, equate to jurisdictional error.
In substance, I agree with the Minister’s submissions that the application fails, for the reasons advanced by the Minister in his written submissions. I have adopted, amended and included the relevant parts of those submissions in this judgment. I deal below with the various grounds of review pressed by the applicant.
Section 414 of the Migration Act
The applicants rely upon SZEJF v Minister for Immigration [2006] FCA 724 at [38] and [39] per Rares J and assert that the Tribunal cannot “act perfunctorily” and must give “proper genuine and realistic consideration to the merits of the case”. I accept the principle espoused but do not accept that the Tribunal erred in that manner.
This is not a case, such as Dranichnikov v Minister for Immigration (2003) 197 ALR 389, referred to by Rares J in SZEJF at [38], where the Tribunal ignored a claim that it was jurisdictionally obliged to consider. Nor is this a case where the Tribunal failed to appreciate that it was conducting a merits review, itself deciding whether it was satisfied on the available material that the applicant had a well-founded fear of persecution.
Care must be taken in considering the expression “proper, genuine and realistic consideration to the merits of the case” so as not to stray into merits review. In SZICT v Minister for Immigration [2006] FCA 1144 at [10], Jacobson J said:
The appellant asserted at [5] that the RRT failed to give `proper, genuine and real consideration’ to the merits of his case. This would appear to be a reference to the phrase adopted by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292. However, in my view that head of judicial review is limited to the ground of inflexible application of policy. To go beyond this would be to embark upon impermissible merits review; see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [59] to [66]; see also Bruce v Cole (1998) 45 NSWLR 163 at 185-186.
The judgment of Rares J in SZEJF involved a series of findings about the Tribunal decision in that case, including findings that the Tribunal’s reasoning was illogical[3] and that no reasonable or rational person could have reasoned as the Tribunal did[4]. Those features are neither alleged nor shown in the present case.
[3] at [50]
[4] at [53] and [55]
Here, there was no application of policy without regard to the merits, nor a wrong test employed, nor a failure to consider with any claim that the Tribunal was jurisdictionally obliged to consider[5].
[5] As opposed to mere evidence
I reject this ground.
Apprehended bias – refusal to postpone hearing date
The applicants refer to the request for an adjournment of the hearing date at RD290-291. That application was refused by the Tribunal by a letter dated 26 July 2006 (RD296-298).
The applicants claim that the first applicant was thus “deprived of her witness giving evidence” about the situation for Christians in Nepal. By letter dated 31 July 2006 (RD299), the applicants’ agent wrote to the Tribunal saying that, as the hearing could not be rescheduled to allow Pastor Boyd to be present as a witness, the applicant would like Mr Lokman Limbu to be a witness in the hearing.
I accept that the adjournment of the hearing was a matter within the discretion of the Tribunal[6]. The denial of an adjournment is relied upon by the applicant in support of the contention of apprehended bias. However, the refusal of the adjournment request was reasonable in the circumstances. There was no identification of what evidence Pastor Boyd would give and there was nothing to indicate that, whatever support he might be able to offer the applicant could not be given in writing.
Conduct of the Tribunal hearing – alleged misquotation of evidence – grounds 3(b)(i) and (v) and ground 6
[6] see s.427(1) of the Migration Act
It is apparent that the second Tribunal had before it the statement of the decision and reasons of the first Tribunal. However, the decision of the second Tribunal is silent as to whether any primary evidence was before it of what occurred at the first Tribunal hearing before Professor Blay. I infer that no transcript of the hearing before Professor Blay was before the second Tribunal.
The applicants refer to the second Tribunal’s statement at RD372.4 that:
…she told the previously constituted Tribunal that she did not regard ‘religion’ as the basis of her protection application, except where her ‘religion’ intersected with being targeted for mercenary reasons by the Maoists. Her claimed fear of persecution in Nepal for reasons of ‘religion’ is, on the evidence by the Tribunal, an afterthought…
The applicant then disputes the accuracy of the Tribunal’s statement as to what the applicant did in fact tell the first Tribunal, referring to the transcript obtained by the applicant. I accept, however, the Minister’s contention that the Tribunal’s statement is consistent with the transcript of proceedings before the first Tribunal on 22 February 2005 at A29 line 6 to A30 line 9 and A38 line 43 to A39 line 6. A fair reading of that evidence is that religion was a secondary and incidental reason why the applicant claimed to have left Nepal or to be fearful of returning to Nepal (as opposed, perhaps, to her particular village). The primary reason why the applicant left the country and was fearful of returning was because of the Maoists and the army.
Further, I accept the following submissions of the Minister in relation to the alleged misquotation of evidence:
a)the first Tribunal, at RD257.8, and at RD260.3, in the course of describing the applicant’s evidence to it, indicated that the applicant’s problems as a Christian, on her evidence, were not bad enough to make her leave Nepal, as opposed to (perhaps) her own village. At RD257.9-258.1, the first Tribunal recited “other problems” that were said by the applicant to be reasons why the applicant was before the Tribunal and explained that it was those problems (involving the Maoists and the authorities perceptions of her, having come to hear from villagers that she had paid money to the Maoists) which caused her to leave her village. As indicated above, that is consistent with the transcript of the proceedings before the first Tribunal;
b)thus, the first Tribunal’s own description (in its reasons) of the evidence before it provides some evidence upon which the second Tribunal could have said what it did in the abovementioned passage at RD372.4. What the second Tribunal said in that passage is also consistent with the transcript, but that probably does not matter because, although the second Tribunal had the first Tribunal’s decision, it did not have the transcript. There is no evidence of any deliberate misquoting by the second Tribunal, or any basis for a reasonable apprehension of bias;
c)the applicants allege that the second Tribunal, on 7 August 2006, misquotes the evidence from the previous Tribunal by saying that the applicant told the previous Tribunal that she went to church services. Again, the applicants rely upon the applicants’ transcript of the hearing of 16 February 2005, specifically referring to the evidence at A22 lines 19-21;
d)the first Tribunal did note at RD278.7 that the applicant claims that since 1993 she has been a Christian. Even if the second Tribunal was confused or mistaken at T4 as to whether the applicant had told the first Tribunal that she went to church services, that would not suffice to establish a reasonable apprehension of bias, especially in circumstances where there was some evidence that she told the first Tribunal that she had been a Christian since 1993 (RD278.7; RD257.3) but had only been baptised later[7]. The fact that the Tribunal makes a mistake of fact, or misunderstands something, or infers that someone goes to church services if he/she speaks of becoming/being a Christian (if that is what has happened) does not suffice to show a reasonable apprehension of bias;
e)also, the second Tribunal’s reference at T4-5 to the applicant having said that she went to church services in Nepal was consistent with what the applicant said at RD18.8-19.1. That evidence at RD18.9-19.1 could be seen as evidence that the applicant went to church services, in the sense of services given or offered by a church, in the organizational sense of the word “church”, whether or not there was a church built at that time[8]. That is another reason why a reasonable and informed person would not apprehend bias as a result of any reference by the Tribunal’s in its questions to the applicant having said that she went to church services in Nepal;
f)the applicants’ third point under this ground refers to the Tribunal’s findings at RD371.8, where the Tribunal says: “the applicant has given inconsistent evidence regarding the circumstances in which she herself became a Christian, not least by claiming at one stage that she converted with ‘other family members’ and then claiming at another that she did so on her own to the alarm, six or seven years later, of her non-Christian family when they found out that her activities had precipitated the kidnapping of her sister”. (At RD371.9-372.1, the Tribunal proceeded to find that the applicant’s reference to “other family members” having converted under the guidance of visiting missionaries, and when she had talked about their having avoided baptism for fear of harassment, was a reference to her own family members and not members of her husband’s family.) The applicants then refer to the applicants’ transcript of the hearing that took place before the first Tribunal on 16 February 2005 referring to the top half of A22 and allege that there was no claim that other family members were involved. Yet, the evidence that the applicant “and other family members” became Christians in Mauwa Phedim is recited by the Tribunal (RD349.3) as having been told to the department, not to the first Tribunal. There was such a claim to the department at RD18, subparagraphs 3 (i), (ii) and (iii), where the applicant speaks, amongst other things, of herself and her family being assisted by foreign missionaries in converting to Christianity, being practising Christians, though not holders of baptism certificates, as well as of herself being converted by listening to a “sermon” by the missionaries in the village[9];
g)again, no reasonable apprehension of bias is made out. The second Tribunal has not misquoted the evidence of the first Tribunal, but has instead referred to a claim made to the department, of which the applicant was put upon notice in the section 424A letter and given an opportunity to explain (RD302.9). The fact that the Tribunal finds inconsistency, especially where there is some evidence showing that inconsistency, does not establish a reasonable apprehension of bias. Even if the second Tribunal had made a mistake that would not suffice to establish apprehended bias. Nor would a series of innocent mistakes, without more, be sufficient.
[7] The baptism was said to have been two years before the first Tribunal’s hearing at RD257.3 or after she had arrived in Australia at RD278.7.
[8] The applicant said at A28 line 4 (22 February 2005) that there was no church (in the sense of a building) in the village. See also the reference to attending a “sermon” given by “missionaries”.
[9] See also RD19.1 where the applicant spoke of the village coming to know that “we” (referring, in context, to herself and her family) “have been practising Christianity and now a (sic.) converted Christians” (emphasis in text).
The applicant’s counsel raised a number of further points in oral submissions. I accept the following submissions of the Minister in relation to those matters:
a)the applicant seeks to contrast T13 lines 22-26, where the second Tribunal puts “The last Tribunal said to you you could have gone to Kathmandu for protection and you said, `I didn’t need to go to Kathmandu because I met a good man in Darang and I could stay in Darang…’” with A34, alleging that the second Tribunal misquoted the first. In fact, at A34 lines 42-45, the applicant, said that she had “ran away” from her home because of “risk from the Maoists and from the army” and added: “….so I met Vishnu in the same time and got married and then why would I go to Kathmandu when I met him and I came with him…”. What the second Tribunal put was also consistent with the first Tribunal’s statement in its reasons at RD259.5 that “…she said that she did not need to go to Kathmandu because she had met her husband in Dharan and that was a good reason to stay in Dharan…”. There was no misquotation and no basis for a finding of apprehended bias;
b)the applicant also criticises the second Tribunal’s reference at T13 lines 38 to 40 to the applicant having said to the first Tribunal that she could not go to Kathmandu because people would regard her as a spy, but the applicant did say, at A35 lines 6 to 10, in answer to the first Tribunal putting to her that she could have gone to Kathmandu (bottom A34) or “other parts of Nepal”, away from her home, “where (she) could be safe” (top A35) that she could be thought a spy and killed (A35, lines 6-10). That evidence was also referred to in the first Tribunal’s summary of her evidence at the hearing before it (at RD259.5). Again, there is no misquotation and no basis for a finding of apprehended bias;
c)the applicant then sought to contrast T18 with A39, the applicant seeking to argue that the second Tribunal misquoted the first by suggesting that there was an inconsistency between what the applicant was telling it and what she told the first Tribunal. There was inconsistency at least in so far as she did tell Professor Blay that “they don’t give protection to refugees like that in Brunei” (A40, lines 6-7), which, as the second Tribunal observed at T18.3, indicated that she was “aware of restricted immigration regulations in the country”, whereas she did, at T13 lines 10-14, answer: No, I didn’t know to the Tribunal’s question “well, did you explore whether Brunei has a system of granting refugee protection” The applicant also gave evidence to the second Tribunal that she knew it was impossible to get protection in Brunei (bottom T12) and that she got information from friends that she could not get protection in Brunei (T15.7). It was the distinction that she sought to draw between what she knew herself and what she was told by friends that led to the Tribunal asking at the bottom of T18 whether it had to “squeeze information” from the applicant. There was some lack of clarity (at least) in the applicant’s evidence to the second Tribunal upon that point that the Tribunal was asking about. Nothing said by the Tribunal either in trying to understand what was being put to it, or in comparing what was said to it with what was said to the first Tribunal, or in challenging the accuracy of what fell from the applicant, would suffice, particularly when seen in context, as grounds for apprehended bias;
d)with respect to all alleged misquotations, the applicant’s counsel has argued that although none alone would suffice to show apprehended bias, they have that effect cumulatively as (he submitted) the test is a “lay” observer. The test, as the passage from NADH points out, involves what might be apprehended by a “reasonable and informed” person. None of the points raised by the applicant would cause a reasonable and informed person to apprehend bias. Nor would a reasonable and informed person read in more than was there so as to see these points “cumulatively” as adding up to any more than the components on their own;
e)also, as with all of the applicants’ contentions that evidence has been misquoted by the second Tribunal, I have inferred that the second Tribunal did not have the transcript of the first Tribunal hearing that the applicants’ submissions seek to “comb”. That is relevant to what a reasonable and informed person might have perceived. Secondly, and again, even if the Tribunal made some error in stating the evidence either before it, or before the first Tribunal neither the misunderstanding, nor the fact that it was put to the applicant (which may, of course, have allowed it to be met) would suffice to establish apprehended bias.
The Tribunal was “overbearing and intimidating”
The applicants assert that the Tribunal was overbearing, intimidating or offensive based upon the passages in the transcript. I reject those assertions and accept the Minister’s submissions in relation to them, as follows:
a)at T18, the Tribunal is simply trying to reconcile a conflict that was troubling it as between what the applicant said to it and what it understood the applicant to have told Professor Blay upon the subject of why she had not applied for protection in Brunei. The question including the words “do I have to squeeze information from you?” was asked at a point where the applicant was seeking to deal with that difficulty by trying to distinguish things known to her from things known to her family, in circumstances where she had previously answered as to what she did or knew. In any event, the applicant was not in any way overborne or prevented from putting anything further. She continued to address the Tribunal on the subject on T19 and the Tribunal, at T19.8, demonstrated its preparedness to consider further evidence by indicating to the applicant that she would “have an opportunity to go back to the recording of the hearing and listen carefully to what you said” and that “you can bring it to my attention if you feel that there’s an issue”;
b)the other passage relied upon by the applicant is at T22, where the Member says “can we wind up this a little bit soon?”. That was following a lengthy and not entirely responsive answer (occupying the bottom two thirds of T21) to a question whether the applicant had asked the migration agent, Bisuna Pawar, what was his reason for the advice (which the applicant said the migration agent gave) that a refugee application would not be successful. Prior to that lengthy response (which was not a direct answer) the Tribunal had asked four times, before ultimately asking a fifth time, either what reasons he gave, or whether he explained his reasons, or whether she asked him his reasons. Again, the test of apprehended bias, involving what would be thought by a reasonable and informed observer, is not established. The fact that the Tribunal was pressing for information and seeking a direct answer does not mean that it was resolved to reject the application whatever further might have been presented. A reasonable and informed person would not think otherwise.
The Tribunal asked “long, convoluted and confusing” questions –showing apprehended bias
I accept the Minister’s contention that Tribunal members are administrative decision makers and are not required to frame questions as might Judges or experienced trial lawyers. The presiding member could probably have expressed himself more clearly at times, and generally did not express himself as coherently as did Professor Blay, but that is a far cry from conduct pointing to an apprehension of bias.
Moreover, the transcript references relied on by the applicants, regardless of whether they could have been broken up, do not show bias but rather a preparedness to allow the applicant an opportunity to deal with the Tribunal’s concerns fully explained and in context. The question commencing “what if” at T17.4 of the transcript puts a series of related concerns which may fairly be seen as colouring each other. So seen, it aids rather than denies fairness to put them all to the applicant together in that way. The question is not, in any event, particularly long. It occupies twelve lines of transcript and is expressed in very conversational language. It is not a simple proposition. It involves the ideas that the protection visa application was an after-thought embarked upon only after the applicant decided to stay in Australia and her skills application (for another visa) failed, she had no work to do in Brunei and she made up a number of stories to fit that objective of making out a refugee claim. To reveal how the components colour each other is to better place the applicant to answer the concern than would be possible if the components were broken up in the way that the applicant implicitly suggests (in submissions) ought to have occurred.
The example involving the words “but do I have to squeeze information from you?”, at T18, I dealt with above at [23(a)]. Especially when seen in context, ending with an opportunity to go back over the recording of the prior hearing and to put any more that she wished to answer the concern that the Tribunal had been putting, it too comes nowhere near sufficient foundation for a reasonable apprehension of bias.
The question at T23 commencing “well, let’s get closer to your claims now” puts a number of related matters arising from the country information. When the applicant says, at the top of T24, that it is very long and she could not understand, the Tribunal proceeds to explain the point that it is concerned with (first question at the top of T24). Again no reasonable apprehension of bias is shown.
I do not accept that any of these questions can fairly be described as “convoluted and confusing” even if some do involve multiple components. Any multiple components are generally such that they colour each other and enhance the opportunity to respond. In any event, to ask a question which is convoluted or confusing, does not of itself demonstrate, or create, a reasonable apprehension for bias. The applicants do not allege, much less establish, that the questions were deliberately convoluted or confusing.
The applicants also refer to the Tribunal, at the foot of T24, asking that the applicant repeat something “because it’s very long”. On the next page, the Member indicates, by way of explanation of that request, that the applicant, perhaps himself and also the interpreter are speaking very fast and then the Member redirects attention to the claim that proselytizers are in jail and seeks the evidence relied upon for that claim. Again, no reasonable apprehension of bias is established. This is more consistent with a search for information or answers that may assist the applicant, not a mind closed to what further she may have to say.
Finally, the applicants point to the transcript at T26, where the Tribunal, after prior discussion upon the subject on the earlier pages, puts to the applicant that there is no evidence of proselytizers going to jail today in Nepal, explaining what it understands the evidence to be at that point. The applicant asks, “is that the question?” and the Tribunal clarifies that what he is telling her is “we don’t have evidence yet”. In context, it is clear that the evidence that he is speaking about, which he does not have and which he is inviting the applicant to provide, is evidence of proselytizers going to jail today in Nepal. Also, at the foot of T26, he concludes by indicating the applicant would have a further fourteen days to make submissions. Again, all of this shows an open mind, ready and willing to consider what might be further available – not a reasonable apprehension of bias.
The Tribunal “pressed the applicant to reveal confidential advice – ground 3(b)(iv)
The Minister’s submissions note that this part of the applicants’ submissions rely upon questions at T16 and 17 about the applicant’s conversation with a migration agent. The Tribunal had asked, at T16.2, what steps the applicant took immediately upon arrival in Australia to become aware of the protection system. The applicant then spoke of approaching a migration agent and, at T16.5, volunteered that she “told (her) story to the agent” but: “… I was told that I wouldn’t be able to get protection…and I was told that if I would go through the skilled migration… it would be possible for me to become (sic.) visa here”. Thus, the applicant volunteered that the advice given to her was that she would not get protection. There is further reference by the applicant, towards the foot of T16, to having been told that they “could not be granted protection visa” by an agent. I accept the Minister’s submission that the substance of the advice was volunteered.
Further, the advice was not confidential. It was not in my view subject to legal professional privilege[10]. Whether it was confidential or not, however, any confidence was waived by the applicant.
[10] Legal professional privilege would not attach, in any event, to mere advice from a migration agent. Different considerations would arise if the Tribunal, without warning an applicant about legal professional privilege, asked questions that would disclose the content of confidential communications with a lawyer for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal (SZHWY v Minister for Immigration [2007] FCAFC 64 at [75] and [77] per Lander J and [163] per Rares J).
Refusal to have the applicant’s witness give evidence – ground 3(b)(v)
The applicants’ submissions do not assert that the applicant asked the Tribunal to take oral evidence from Mr Lokman Limbu (the friend to whom the applicant here refers). The applicants’ submissions instead note that he was outside the hearing while the applicant was giving her evidence and allege that “she was never given the opportunity of asking that Mr Limbu be called”. This is alleged to add to the submission that the Tribunal had a “perfunctory attitude”.
I accept the Minister’s submission that the applicant’s failure to ask for Mr Limbu to be called to give evidence says nothing about the Tribunal’s “attitude”. At T28 of the transcript the Tribunal asked “anything else at this stage?”. The applicant had the opportunity to ask that Mr Limbu be called but did not take that opportunity.
As s.426(3) makes plain, the Tribunal is not required to obtain evidence from a person, even if the Tribunal is notified by an applicant under s.426(2) that the applicant wants to obtain oral evidence from a person or persons named in a notification given to the Tribunal within seven days after being given the s.425A notice. At T2, the member explains why he was not inclined to call Mr Limbu. The Tribunal’s preference for direct evidence from the applicant on any subject where she is the source of the information is understandable. No apprehension of bias results from that ruling
Post hearing – “selective” use of documents – ground 3(c)
The applicant relies on NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 at [115]. This case is distinguishable from NADH.
I am not persuaded that the Tribunal was “selective” in the sense of only being interested in material going one way. To the extent that the applicants complain that there was not reference, or greater reference, to evidence pointing against the Tribunal’s conclusions, their submissions lack specificity. The Tribunal noted that it had received a very large amount of material (over 1,000 pages) – see RD343-344. Applicants can hardly complain about the Tribunal being selective when confronted by a surfeit of information. Moreover, the applicants fail to acknowledge that the Tribunal’s obligation under s.430 of the Migration Act is to “refer to the evidence or other material upon which its findings were based” – not to the evidence of other material upon which its findings were not based. See Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, at [64]-[65], per McHugh J, including the indication at [65] that the Tribunal is not obliged to engage in “line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to the findings of material fact made by the Tribunal”.
See also MZWBW v Minister for Immigration [2005] FCAFC 94 at [26]-[27][11]. The proposition that the Tribunal is not obliged to refer to every item of evidence that is before it is well established[12]. Nor can it be inferred from the fact that the Tribunal does not refer to particular evidence that it has not considered that evidence.
[11] There, Black CJ, Sundberg and Bennett JJ explained:
[12] Examples of such statements are Minister for Immigration v Guo (1997) 191 CLR 559 at 593; NAHI v Minister for Immigration [2004] FCAFC 10[12] at [14] (special leave refused, 10 March 2005), as well as WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 at [46] (quoted in the last above footnote).
Breach of s.424 of the Migration Act 1958 – ground 4
The applicants assume that there was a request by the Tribunal under s.424. I accept the Minister’s contention that there was not. Such an invitation must be given by one of the methods in s.441A – which necessarily implies that it must be in writing (see SZBYR v Minister for Immigration [2007] HCA 26 at [12] which deals with the interaction between ss.424A and 441A). For there to be a s.424 request, there would also need to be compliance with s.424B.
There is no evidence that the Tribunal’s letter dated 15 July 2006, upon which the applicants rely in this part of their submissions as being a request under s.424, did, in fact, amount to an invitation under s.424. It was relevantly doing no more than providing an opportunity to the applicant to supply more documents or submissions. That letter did not contain the features prescribed by s.424B for such an invitation and did not request any specific information at all. It was not a request or invitation, which, given failure to answer, would have led to the consequences that would attach to not answering within time a section 424 invitation. Those consequences, prescribed by ss.424C and 425(2) and (3), indicate the considerable danger that would be involved in taking too wide a view of what might be an invitation under s.424.
There not having been a request under s.424, the obligation envisaged by the second sentence of s.424(1) did not arise. See, for example, SZGPO v Minister for Immigration [2007] FCA 648 at [31] per Gilmour J. Again, no jurisdictional error is demonstrated.
Inaccuracy of the Tribunal’s s.424A letter of 7 August 2006 – ground 5
The first alleged inaccuracy in the s.424A letter is said to be that “the applicant did not tell the previous Tribunal that she was baptized two years before the February 2005 RRT hearing”. I accept the Minister’s submission that this is not “information” upon which the applicant was invited to comment in the letter dated 7 August 2006 (RD302-304). Rather, it was a part of the Tribunal’s description, at RD303.2, of how the information set out as “the second item of information” at the foot of RD303 was relevant. At RD257.25, the first Tribunal (constituted by Professor Blay), in the course of describing evidence given by the applicant when the hearing before him resumed on 22 February 2005, stated: “she said that she had been a Christian since 1993 but was baptized only two years ago”. Thus, there was evidence before the second Tribunal that the applicant had told the first Tribunal that she was baptized about two years before the February 2005 hearing. The Tribunal was entitled to refer to that statement, as it did, in the s.424A letter.
Further, I accept the Minister’s submission that the applicants’ contention otherwise appears to be based on the assumption that Professor Blay did not accurately record what the applicant had said at A27 lines 29-25. It is correct that the evidence before Professor Blay was that the applicant was baptised in 2004, after her arrival in Australia, and not in 2003, but as I have already noted, the transcript now relied upon was not before the second Tribunal, whereas Professor Blay’s reasons were before the second Tribunal.
There was also evidence that the applicant had been a Christian since 1993. A27 involves Professor Blay putting to the applicant, amongst other things, his understanding that she had been a Christian since 1993. The applicant gave evidence at A22 that she had been a Christian since “2015 – that is 1993 and 1994, depending on the month”.
I also accept that a part of the process envisaged by s.424A involves identifying how information of the kind there described may lead to the affirmation of the decision under review and inviting the applicant’s response. If, based upon transcript now available, it were to appear that Professor Blay’s statement of the evidence given to him was incorrect, that would not eliminate any entitlement of the Tribunal to put to the applicant, as this Tribunal did, what Professor Blay had identified the evidence to be and to invite her comment as to inconsistency between that account and other information particularised in the second item of the s.424A letter.
No jurisdictional error is established.
The second alleged error in the s.424A letter is described in the applicants’ submissions as the Tribunal’s assertion that “the applicant appears to have abandoned her claims as they relate to race and she is invited to comment”. I take this to be a reference to the Tribunal’s explanation, at RD303.9-304.1 of why the fifth item of information specified in the s.424A letter (as to the basis upon which she claimed to fear persecution in her protection visa application) is relevant. What the Tribunal says in that explanation put the applicant upon notice of how it understood the evidence earlier given by the applicant. The Tribunal’s entitlement to put that understanding, in the course of inviting the applicant’s comments, does not depend upon the correctness of its impression. Section 424A is aimed at “information” that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review and provides a mechanism whereby the applicant is invited to comment on that information, also being given an understanding (as far as it is reasonably practicable) why it is relevant to the Tribunal’s review (see paragraph (1)(b) of s.424A). If, in the course of that process (including the explanation), it emerges that the Tribunal has misunderstood the evidence in some way, the applicant can so comment. Indeed, that is the very point of inviting comment.
The applicants allege, that on T22, “the Tribunal put to the applicant a leading question that her only ground for fear is her religion and the transcript shows that she was not allowed to answer the Tribunal’s question…”. The question asked by the Tribunal at T22.7 was: “… one reason why you can’t go back to Nepal in your view is because you’re Christian”. The applicant responds “proselytizer, proselytizer”. The Tribunal then says “Yes, okay, Christian proselytizer. Okay. I can’t see that there’s any other reason why you wouldn’t be able to go back to Nepal, not at this stage, because you say the basis of your fear is Christian proselytizer. Okay?”. The Tribunal then goes on to examine the situation between the authorities and the Maoists, noting change that has occurred, and then concludes, at T23.2, by asking: “but what do you have to say about that?”.
I accept the Minister’s contention that there is no evidence upon which it can be concluded that the applicant did not have an opportunity to answer the first part of what the Tribunal was putting up to the word “okay”. The fact that the Tribunal went on (only for 10-11 lines) to talk about the situation as between the Maoists and the authorities does not mean that the applicant was denied such an opportunity, particularly given the concluding request for what she had to say. She could have answered all of what had been put to her, had she chosen, when asked the question “but what do you have to say about that?” at T23.2.
I also note that the Tribunal gave an opportunity to make further submissions within fourteen days (T26.9) and asked the applicant at the end of the hearing whether there was anything else (T28.6).
In my view, the Tribunal was entitled to the view, from the transcript with the oral evidence given on 7 August 2006, that the applicant, though pressing other claims, was not saying in answer to the Tribunal that she could not return because of her race. There is no inaccuracy in the Tribunal’s letter, but, even if its letter had reflected a misunderstanding of what she had said, there would be no jurisdictional error arising purely as a result of the Tribunal’s sending the s.424A letter in the terms in which it was framed. The Tribunal was entitled to direct the applicant, as it did, to its impression of her evidence at that time.
Conclusion
No jurisdictional error by the Tribunal is shown. The decision is thus a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 August 2007
“[26]In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs vYusuf (2001) 206 CLR 231:
does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.
This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].
[27] In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46] a Full Court said:It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons … Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.”
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