S233 of 2002 v Minister for Immigration - [2004] FMCA 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S233 of 2002 v MINISTER FOR IMMIGRATION & ORS

[2004] FMCA 396

MIGRATION – Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa – whether denial of procedural fairness – whether apprehended bias – fair-minded lay observer might reasonably apprehend that the Tribunal might have a closed mind.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.425

SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591 referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 195 ALR 502 referred to
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 followed
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 followed

Applicant:

APPLICANT S233 of 2002

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent:

L. HARDY, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

File No:

SZ 1766 of 2003

Delivered on:

27 May 2004

Delivered at:

Sydney

Hearing date:

24 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Killalea

Solicitors for the Applicant:

Willis Lawyers

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is remitted to the Refugee Review Tribunal.
A Writ of Certiorari is to issue, quashing the decision of the Refugee Review Tribunal of the 14 January 2002.
A Writ of Mandamus is to issue, requiring the Refugee Review Tribunal, differently constituted, to hear and determine the Applicant’s application for a protection visa.
The First Respondent is to pay the Applicant’s costs in the sum of $7,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1766 of 2003

APPLICANT S233 of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

And

L. HARDY, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

REASONS FOR JUDGMENT

The application before the court is an application for a review of a decision of the Refugee Review Tribunal handed down on 14 January 2002 affirming a decision of the delegate of the Minister not to grant to the applicant a protection visa.
The proceedings before the court are somewhat unusual in that they were originally commenced by means of a draft order nisi and an affidavit filed in the High Court of Australia in June of 2002. That court remitted the application to the Federal Court of Australia on 6 February 2003. Certain directions were made in respect of the filing of evidence and submissions and on 8 August 2003 Tamberlin J transferred the proceedings to the Federal Magistrates Court of Australia.
The matter has proceeded on a routine basis ever since but there is one particular matter, of course, that needs to be considered. The proceedings were commenced outside the time required by section 486A of the Migration Act although that time limit only applies to a review of a privative clause decision as counsel for the respondent submitted. If an error going to jurisdiction was demonstrated the application is not therefore incompetent. What is necessary is for the applicant to show that this is not a privative clause decision, that there is an error as to jurisdiction.
In this case it is alleged that the errors of jurisdiction are, first, that there is a reasonable apprehension of bias and, second, that there was a denial of natural justice. As will be seen I have come to the conclusion that the evidence relating to one also applies to the other. The application is one brought by the applicant who is the mother of two small children. The application is technically an application involving the three of them but as the two children are well below the age that they can play any relevant part in the proceedings I am of the view the matter should proceed on the basis that it is the application by the one applicant mother and for ease of hearing I will refer to her as the applicant in each case.
An application was made for a protection visa on 12 July 2001, some three weeks after the applicant and the children had arrived from Vietnam. On 20 September of that year a delegate of the Minister refused the application. The applicant then applied to the Refugee Review Tribunal for a review of that decision on 5 October 2001.
The matter was listed for hearing before the Refugee Review Tribunal. The applicant attended the hearing. She provided documents, she provided a written submission and she attended the hearing with her brother who resides in Australia. There was a Vietnamese interpreter. The hearing took place on 14 January 2002 and the Tribunal member delivered an extempore decision that day. That decision affirmed the decision of the delegate not to grant the protection visa. Written reasons were provided a short time later under cover of a letter dated 25 January 2002.
The applicant's case is that she had been detained for her role in pamphleteering on behalf of a pro democracy movement and that she had originally been involved in the early 1980s and resumed her activities from 1995 onward. She indicated that she was prepared to participate in an arrangement which meant that once she left Vietnam one of her colleagues in the movement who was already in prison would be able to denounce her and obtain a reduction in his sentence. The plan had been that her husband and the other children would later join her in Australia but he had telephoned her in July of 2001 on three occasions informing her that the police had visited the house and he indicated that he'd left home and the applicant said that she'd lost contact with him.
The fact is that the Tribunal did not accept this explanation of this arrangement. The Tribunal found that it was implausible and took the view that parts of it were inconsistent with the applicant's earlier claim, took the view that the applicant's evidence was unreliable and that she was an unreliable witness and consequently was not satisfied that the applicant faced any well-founded fear of persecution if she were required to return to Vietnam.
I have read through the written reasons and they basically set out those matters. On the face of them there appears to be nothing that would indicate any error on the part of the Tribunal. What I have had, however, is a submission from Mr Killalea of counsel where it is pointed out that the applicant relies on apprehension of bias and a denial of natural justice.
A transcript of the proceedings before the Refugee Review Tribunal was tendered annexed to the affidavit of one Andrea Marian Christie-David and that transcript was marked as exhibit 3. There were also two affidavits, one from the applicant herself and one from her brother setting out some things that had taken place or that had been discussed at the Tribunal.
Counsel for the respondent, Mr Kennett, cross-examined the applicant about the contents of her affidavit. I would indicate that the admissible parts of the applicant's affidavit, and I rejected parts of it as being hearsay, and the applicant's evidence in cross-examination did not take the matter much further. The applicant's claim to my mind will stand or fall on the matters contained in the typed transcript of the proceedings. I would make it clear that I have read the transcript. It was not submitted to me that it was necessary to hear the tape of the evidence although that tape was available and I did not therefore listen to the tape.
What the tape would have shown as there is no challenge to the substance of the transcript was the tone of voice used by the Tribunal member and the other participants in the proceedings. That was not considered necessary by counsel and I did not consider it necessary to listen to the tape. My findings therefore are based on the printed word as it appears in the transcript.
The claim is made in a submission by the applicant that the tenor of the Tribunal's questioning of the applicant was such as to raise an apprehension of bias and I was referred to a number of parts of the transcript. The method used by the Tribunal member was criticised by the applicant's counsel as at times facetious, directive and scornful and at other times relying on unsubstantiated knowledge.
The second ground was a ground of a denial of natural justice which related particularly to the production of a telephone account and a description from the applicant as to how the Tribunal member dealt with the telephone account. I was referred to a number of authorities. Mr Kennett of counsel for the respondent referred me to the decision of the Kenny J in VFAB v The Minister for Immigration and Multicultural and Indigenous Affairs reported in (2003) FCA 872 and the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam reported in Volume 195 ALR 502. I was also referred to the decision of the Full Court of the Federal Court in VCAT v The Minister for Immigration and Multicultural and Indigenous Affairs.
The issue of the telephone account is a matter that I will look at first of all. The transcript reveals that the applicant submitted a telephone bill and that was referred to on page 3 of the transcript. The telephone account was in fact submitted to me and I have had the opportunity of perusing it. The Tribunal member said:
I note the additional material that you've provided. One of these is a phone bill. So you've made three phone calls to a particular number of at least around 15 minutes duration and it says here that this is evidence demonstrating that you did speak to your husband.
I would comment at this stage that the words "it says here" relates to certain notations made by a person written on the telephone account itself. The member went on to say:
I can accept that you've spoken to your home but it's not I'm sure you understand it's not concrete evidence of the subject of your conversation. The phone bill cannot ever show what the subject of a conversation was. It can say how long the conversation went and where it was directed. Do you have any phone bills from subsequent months?
The applicant said:
This phone bill showed a conversation between my husband. My husband informed me that I'm in trouble in Vietnam and the police came to search the house.
The member went on to say amongst other things:
This bill on its own can only tell a rational reader that someone at the house of Mr Vinh Nguyen called the same number in Vietnam three times in that month and spoke for around 15 and 20 minutes each time. It's for me to be satisfied what the topic of that conversation was. That's why I'm asking do you have any copies of subsequent phone bills.
The applicant said:
This is the number where my husband used to ring me and informed me that the house was searched by the police.
The Tribunal member went on to say:
Just a moment, I think - it doesn't say it was a reverse charge call. It says that it was (inaudible) okay.
It was accepted in the proceedings that the telephone account on its face did refer to a reverse charges phone call as the letter R appeared beside the telephone number on each occasion. The Tribunal member said on page 4 - however, the Tribunal member referred to on page 3:
I'd like to see any phone bills from subsequent months from that.
The applicant said:
Those subsequent months I lost contact so I couldn't contact.
The member went on to say:
I'd like to see the phone bills though.
The applicant says:
I didn't contact.
The member said:
But Mr Vinh says he's got them. I'd like to see them.
Mr Vinh, the applicant's brother said:
Yes, I may provide also because she's just arrived in Australia, she doesn't know anything.
The member said:
Could you please through the applicant, with her blessing, could you please fax them to me today.
Mr Vinh is reported as saying:
Yes, I will.
That request for the telephone bills was taken no further at that stage. The Tribunal member went on to ask the applicant a number of questions in a cross-examination style. The telephone calls were referred to again on page 19 of the transcript and on page 20 the Tribunal member at this stage appeared to have accepted the fact that the telephone calls were reverse charges phone calls asking the applicant on page 20:
Well, if he has fled the home it's illogical that he would call you from the home if he has already fled.
The applicant said:
I don't know, I don't know how.
The subject is taken up further on page 21. At the top of the page in the passage that begins on the bottom of page 20, the member says:
Now, I don't think there's anywhere else this case can go after what I now know. It's quite clear to you that there are three phone calls from the home phone number and the same phone number. What is your home phone number in Vietnam?
The applicant said:
I think this is - I don't really remember exactly.
The member says, in a way that I would comment struck me as somewhat abrupt and impolite:
Now, don't give me that. Don't give me you don't remember your home phone number.
The applicant said:
It's 8401207. I think it should be right. I think it should be right but I'm not sure - quite sure exactly whether that is the number. This is my home phone number that I use to be 8401207
The member said:
8431140.
I note that that is the telephone number that appeared on the telephone bill. The member went on to say:
That's your husband calling from home.
There was some confusion. The applicant said:
These things and phone number of the house where I'm living now, where I am living.
Member:
In Sydney?
Applicant:
Sydney the house. In Vietnam.
Member:
The other number is the number that your husband was calling you from. You've called that your home number before.
Applicant:
No, I don't know. This is the phone number of my household in Vietnam.
Member:
So he rang you from the same three numbers before he fled and after he fled?
Applicant:
One was when the police to search the house.
Because the situation is that the applicant was giving the member a different phone number as what she remembered the home phone number to be than the one that the member said which was the number on the telephone bill. It will be recalled that the member had asked to have copies of later phone bills from the applicant's brother's house faxed that day but at page 22 at about point 9 the member says:
I'm very confident that I can give you a decision today on this matter and give a correct one. I am going to adjourn the matter and I am going to give the decision today. Just adjourn for a few minutes.
The hearing resumed some time later. The member says:
The fact finding and evidence-giving in this hearing is now concluded. I have decided that you are not entitled to a protection visa. A copy of my decision and reasons will be sent to you within 14 days.
The member went on then to give some brief oral reasons. At that stage the applicant says:
Can I please have a final word to you, sir?
The member said:
The usual practice is to say no and that is how I am going to act now. If you have any final words or if you want to take any further action or express your dissatisfaction with the decision there is no mechanism for it to come straight back to me.
The hearing was concluded and the member left the room. Mr Kennett, counsel for the applicant, referred me to the decision of Re Minister for Immigration and Multicultural Affairs Ex parte Lam where the High Court looked at the question of a departure from a stated intention by a decision maker. Gleeson CJ, of course, said at paragraphs 25 and 34 of the judgment:
Not every departure from a stated intention necessarily involves unfairness even if it defeats an expectation. In some contexts the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present where there is already an obligation to extend procedural fairness the creation of an expectation may bear upon the practical content of that obligation but it does not supplant the obligation. The ultimate question remains whether there has been unfairness not whether an expectation has been disappointed.
It seems to me, with respect, that this case is not on all fours with the decision of Re Lam. The fact is that the Tribunal member had indicated a desire to see subsequent telephone bills notwithstanding the fact that it was the applicant's view that those telephone bills would not assist the Tribunal member in making a decision. The Tribunal had asked if those bills could be faxed through by the applicant's brother during the day and that was agreed to. What happened at the end of the proceedings was that without any further reference to the telephone bills the Tribunal member proceeded to give a decision dismissing the applicant's claim. When the applicant said:
May I have a final word to you, sir?
The Tribunal member would not hear her. The inference that I would draw from the Tribunal member's words:
the usual practice is to say no and that is how I am going to act now.
It appears that the Tribunal member was dealing with the applicant's application for a final word after the handing down of the judgment as an attempt by an applicant, which is not uncommon with unrepresented litigants, to make a further argument. In my view the inference is equally open that the applicant was seeking to remind the Tribunal member of the fact that he had asked for the further phone bills to be faxed through by the brother that afternoon and appears to have forgotten that request. There is no statement by the Tribunal, I will not need those telephone bills now, and it seems to me that the applicant was doing no more than merely attempting to remind the Tribunal member of what the stated intention was.
It would have been preferable for the Tribunal member to have heard what the applicant said, rather than silencing her in that way. It does happen from time to time that decision makers whether they are in a court or in an administrative hearing forget something. Certainly in courts counsel and solicitors appearing may have to remind the judicial officer of something that is going to happen, and most judicial officers do not take any offence at being reminded if they have overlooked something. It may help save them from appealable error.
I would not have thought however, that that departure would necessarily amount to a denial of natural justice however, because it is quite clear that the production of the telephone bills was not going to do anything to advance the applicant's case. They were in fact irrelevant and had arisen from an original misunderstanding.
In my opinion where the applicant's case is on stronger ground is in the question of an apprehension of bias. In this matter, as I said I refer to the decision of VFAB v The Minister for Immigration and Multicultural and Indigenous Affairs to which I have already referred. At paragraph 24 of the judgment her Honour said:
Since the test for this form of bias is more readily ...
ie apprehended bias:
satisfied than for actual bias I focus on below on this ground at paragraph 25. 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 at 434, per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed this rule may be expressed differently when applied to administrative proceedings in order to take account of the nature of the decision maker and its proceedings. 'Regard must be had to statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter in which the decision is concerned'.

Her Honour went on to say at paragraph 26:
As in the present case ex parte H concerned the Refugee Review Tribunal. The court held that in the circumstances having regard to the transcript of the hearing before the Tribunal 'a fair minded lay observer or a properly informed lay person' might infer that there was nothing the prosecutor could say or do 'to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based an application for a protection visa'. See ex parte H, at 435 and compare re Minister for Immigration and Multicultural Affairs ex parte application S20 2002 reported in 2003 198 ALR 59.
Is that the situation in this case? There are number of matters in the transcript of the proceedings to which I was referred by counsel for the applicant and some, but not all of them, have caused me a significant degree of disquiet. On page 13 of the transcript, at about point four, the applicant says:
If I applied for a passport myself I'll have to get the approval from the local police but if I had it done through a tourist agency they didn't have to go through the police approval for the issue.
Member:
That's not correct, that is not correct, that is factually incorrect.
The applicant says:
But I'm in Vietnam and I know that's how they do it.
Member:
Well we won't have a slanging match. We are not going to argue a "yes/no, a yes/no, it is, it isn't, it is, it isn't'.
The member goes on to say:
I put it to you that it is not correct and I've heard your response and I shall consider it. My next question to you is to whom were those pamphlets distributed?
The concern that I have here is that the member is making statements of fact about a particular procedure that applies in Vietnam for the issue of a passport. There is no indication as to where the member acquired that knowledge. It does not appear anywhere that I could see in the court book. What happened was that the member was in fact making statements of fact and arguing with the applicant.
I find it difficult to see that a fair minded lay observer could form the impression that the Tribunal was doing nothing more than testing the evidence of the applicant in this case. I am mindful of the fact that proceedings for the Refugee Review Tribunal as set out in section 425 of the Migration Act take place when the Refugee Review Tribunal cannot form a view that it can produce a decision favourable to the applicant just on the papers. A hearing is held. The applicant is given the opportunity to attend and give evidence and present evidence and that may well involve cross-examination of the applicant to test the applicant's evidence which would take place by the Tribunal member which is quite common for inquisitorial proceedings and on occasions that questioning can be somewhat robust. I refer to the decision of the Beaumont J in SBAN v The Minister for Immigration and Multicultural and Indigenous Affairs reported in 2002 FCA 591. It is my understanding that decision has been affirmed on appeal.
But in the case before me, with respect, this is not what the Tribunal member was doing. The Tribunal member was exercising an opinion about the facts and arguing with the applicant about the correctness of what is put, not expressing scepticism, but making a denial of the facts. "That is not correct. That is factually incorrect". Well the question one would ask is how does the Tribunal member know? I am not of the view that if the matter were to be heard before a court for instance, that a court could necessarily take judicial notice of the practice of police in Vietnam.
It is also noteworthy that on that same page, at about point nine, that the turn that emerges from the text of the Tribunal members' questioning of the applicant is, to say the least unfortunate, bearing on the sarcastic and I quote:
How can they possibly distribute these dissident leaflets in parks and cafes? How can that possibly happen? Do they walk around to people having picnics and say 'will you please read this'? Do they interrupt someone in the middle of bowl of pho and say 'Oh excuse me, just while you are having your pho would you please read this pamphlet'.
The applicant replied to that indicating how they went out at night and they left the leaflets in a bundle just like a stack and the wind would blow the leaflets around. But the member then goes on to say:
But it wasn't successful. It didn't lead to the democratisation of Vietnam 18 years ago or 20 years ago. I can't understand why people - I wonder why people were wasting their time still doing it now.
It is difficult to see how that is in effect a question that the applicant can possibly answer. It has all the tones of an editorial comment, a comment in my view that would lead a person to believe that the Tribunal member had already made up his mind. At page 15, a passage occurs which causes me a considerable amount of disquiet. It starts at about 13.8 and the member says:
You are not giving me a satisfactory response to the question I am putting to you. You see, if these people were taking pamphlets from you to put in parks and things like that overnight, then every Monday, somewhere in Saigon, a place should be littered by windblown pamphlets. Now, there are a number of bodies that would be in a position to observe this happening but they provide no evidence of it. No human rights observers have been able to observe weekly windblown distributions of pamphlets in Saigon. O.K., I've asked my Vietnamese friends when they go back home, have they ever seen these things. Never seen them.
Well, I'm of a view that had the applicant been legally represented that the applicant's legal adviser at that stage would have objected most strongly and would have given serious consideration to a request that the Tribunal member disqualify himself from proceeding further.

I would ask, how could an applicant have any reasonable chance of meeting that statement? The applicant had no idea who the Tribunal member's Vietnamese friends were. There was no document produced. These people had not attended the hearing. They could not be cross-examined. There was no way in which their evidence could be tested.
I am of the view that for procedural fairness, a Tribunal member must confine his or her inquiries to the evidence that is presented and the evidence that is reasonably available. To go out and ask one's Vietnamese friends what they have noticed about a particular case that relates to a particular situation that relates to the applicant's case, is going far outside the realms of permissible behaviour. I am mindful of the fact that only recently, the New South Wales Court of Criminal Appeal has had some critical comments made about two jurors in a criminal trial who conducted their own investigations, although the proceedings before the RRT are not criminal trials.
Whilst the proceedings that I'm asked to review are administrative proceedings, there are still certain steps that need to be taken and they do not involve a Tribunal member making his or her inquiries from his or her own friends as to what they have observed when they come back from leave in a way that contradicts what is put by an applicant giving evidence. There is no way that an applicant can meet such evidence and in my view, any fair minded observer could reasonably form the view that the Tribunal was preferring the accounts of these anonymous friends to that of the applicant and that there was therefore nothing that an applicant could say that would persuade the Tribunal otherwise.
On page 16, the tone in which a question was asked, to my mind verges on the rude. A member says, at about point 2:
Yeah, so there. Why, why in its right mind does an organisation bother with such a self-defeating process?
The applicant went on to describe how certain pamphlets were delivered to her in a box like a birthday present. The member asked her how much they take away each time they left, the applicant, about one kilogram. The member says:
I put it to you that they created useless work for themselves by adding you to their round.
What is an applicant to do with something like that? To my mind it verges on rude and it a Tribunal member conducting an inquiry behaves in a rude way, or an impolite way to an applicant, how can a fair minded person form the view that the Tribunal will deal with the evidence on its merits and would listen to any argument made by the applicant in order to arrive at the decision. I would comment that I have not before come upon a case in this jurisdiction where I have formed the view that there is an apprehension of bias from the method in which cross-examination has been conducted by a member of either the Refugee Review Tribunal or the Migration Review Tribunal.
This is a case, however, where the examples that I have quoted, which are clear in the transcript are such that I am strongly of the view that the test relating to reasonable apprehension of bias has been met. The matter must be referred back to the Refugee Review Tribunal. It must be heard to my mind by a Tribunal differently constituted. It may well be that the applicant's account is implausible and it may well be that the applicant's evidence did not persuade the Tribunal member and these are risks that any applicant must take but an applicant is entitled to be treated with courtesy rather than rudeness.
An applicant is entitled to be treated according to the rules of natural justice and an applicant is not required to go through a procedure where a Tribunal makes clear that the Tribunal has made other inquiries from other people which the applicant has no way of meeting or rebutting so that the applicant must be left with a view that any argument put would be properly considered and that the Tribunal has not approached the matter with a closed mind. It is for these reasons that I make the orders.
This is a matter where I am firmly of the view that costs should follow the event and I propose to make an order that the first respondent is to pay the applicant's costs of these proceedings. My view is that it is preferable for costs to be assessed in a particular amount rather than requiring them to be agreed or taxed. The Federal Magistrates Court is firmly of the view that people should know how much costs are going to be awarded.
I am not of the view that this is a matter where I would make an order for costs in an indemnity basis or solicitor and client costs. I will have regard to the costs schedule as set out in schedule 1 of the Federal Magistrate Court Rules 2001. The first respondent is to pay the applicant's costs in the sum of $7850.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 22 June 2004