SINGH v Minister for Immigration
[2017] FCCA 247
•16 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 247 |
| Catchwords: BIAS – Reasonable apprehension of bias – extensive review of authorities. TRIBUNALS – Conduct of hearing – method of questioning – whether intimidatory – inquisitorial function of Tribunal – acceptable styles of questioning. WITNESSES – Diverse personality traits of visa applicants rendering the style of questioning permissible or impermissible –extensive review of authorities. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA, 424A Migration Regulations 1994 (Cth), condition 8202 of sch.8 |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 |
| First Applicant: | AMARJEET SINGH |
| Second Applicant: | SUSHMA KHADKE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2411 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 24 October 2016 |
| Date of Last Submission: | 24 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr A. Solomon-Bridge |
| Solicitors for the Applicants: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the second respondent is amened to “Administrative Appeals Tribunal”.
The amended application filed 16 September 2016 is dismissed.
The applicants pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2411 of 2014
| AMARJEET SINGH |
First Applicant
| SUSHMA KHADKE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Two issues were raised in this case –
a)whether the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) failed to comply with s.359AA(1)(b) of the Migration Act 1958 (Cth) (“the Act”); and
b)whether the Tribunal exhibited apprehended bias when conducting the hearing of the review of the delegate’s decision on 23 October 2014.
Synopsis
For the reasons that follow, in my judgment –
a)the Tribunal did not breach s.359AA(1)(b) of the Act; and
b)the Tribunal did not exhibit apprehended bias.
As a consequence, the application to this Court made by
amended application filed 16 September 2016 failed.
A brief history
The first applicant is a citizen of India. The second applicant is a citizen of Nepal. On 23 November 2012 the first applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (“the 572 visa”) and the second applicant was granted a visa as a member of the family unit of the first applicant.
On 11 October 2013 the delegate of the first respondent gave notice to the first applicant that the delegate intended to cancel the 572 visa on the basis that the first applicant had contravened condition 8202(2)(a) of Sch.8 of the Migration Regulations 1994 (Cth) (“the regulations”).[1] Specifically, the delegate stated that the first applicant had not been enrolled in a registered course of study since 4 March 2013.
[1] Court book filed 10 February 2015 at pp.5-14.
On 18 October 2013 the first applicant sent an email to the delegate explaining that he had been unable to attend his place of study because he had been unwell and that his wife had encountered complications in her pregnancy. The first applicant also stated that his enrolment with an institution that he called Brighton College had been cancelled without warning.[2]
[2] Court book filed 10 February 2015 at pp.19-51.
On 21 October 2013, the delegate made enquiries with
Brighton Institute of Technology (“BIT”) in response to which BIT informed the delegate that the first applicant had not actually enrolled in the Certificate of Education and that he was no longer enrolled with BIT.[3]
[3] Court book filed 10 February 2015 at pp.52-54.
One month later, on 21 November 2013, the delegate notified the
first applicant that his 572 visa had been cancelled by reason of his contravention of the requirements of condition 8202(2)(a) of Sch.8 of the regulations and that the second applicant’s visa was automatically cancelled as result of the cancellation of the first applicant’s 572 visa.[4]
[4] Court book filed 10 February 2015 at pp.55-78.
On 29 November 2013 the applicants applied to the Tribunal for a merits review of the delegate’s decision.[5]
[5] Court book filed 10 February 2015 at pp.79-106.
On 23 October 2014 the first applicant attended a hearing before the Tribunal in response to the Tribunal’s invitation for his attendance. During the hearing the Tribunal questioned the first applicant,
a transcript of which was put in evidence before me,[6] without objection. On behalf of the first applicant, Mr Solomon-Bridge contended that the transcript of the hearing before the Tribunal as well as the recording of that hearing made out his contentions in respect of the second ground of review.
[6] Affidavit of Carina Ford affirmed 15 September 2016 at exhibit “CF-1”.
Ultimately, the Tribunal decided to affirm the delegate’s decision.[7]
[7] Court book filed 10 February 2015 at pp.177-183.
The amended application in this Court
On 16 September 2016 the applicants filed an amended application in which they deleted all seven grounds earlier advanced and replaced them with two grounds that read as follows –
1. The Tribunal failed to comply with s. 359AA(1)(b) of the Migration Act 1958 (Cth)
2. The decision of the Tribunal is affected by a reasonable apprehension of bias.[8]
[8] Amended application filed 16 September 2016 at p.3.
It must be said of the amended application that leave to file and serve it was granted so long as the amended application was filed and served 42 days prior to the final hearing. That timing was not complied with. The Minister had previously filed an amended response but that
was an amendment in relation to the original application filed
27 November 2014. Be that as it may, at the hearing before me
Mr Solomon-Bridge pressed the two grounds in the amended application and Mr Brown of counsel for the Minister responded to those two grounds only, not complaining about the status of the amended application. The points were fully and ably debated by both counsel and as no point was made of the status of the
amended application I shall make nothing further of it in these reasons.
Ground 1 – the s.359AA point
Distilled from the applicants’ written submissions[9] (prepared
by counsel other than Mr Solomon-Bridge) and from
Mr Solomon-Bridge’s submissions before me, the propositions that immediately follow represent an accurate summary of the applicants’ contentions in respect of the first ground.
[9] Submissions of the applicant filed 16 September 2016.
On behalf of the applicants, it was argued –
a)
section 359AA of the Act contains mandatory procedural requirements conditioning the power of the Tribunal to make a decision, support for which is given by the decision of the
High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[10] (“SAAP”);
b)the regime prescribed by s.359AA of the Act requires the Tribunal to strictly adhere to the precise chronological sequence of steps there set out; and
c)in such chronological sequence, clear particulars must be given first, followed by the Tribunal ensuring as far as reasonably practicable that the applicant understood why the information was relevant, followed by an invitation to the applicant to comment or respond to the information, followed by advising the applicant that he or she could seek additional time to comment upon or respond to the information, followed by the Tribunal considering whether to grant any additional time sought by the applicant.
[10] [2005] HCA 24.
In the applicants’ written submissions it was argued that on the facts of this case, the Tribunal gave the first applicant details of procedural rights but that information was given prior to the Tribunal giving the applicants “the information” to which s.359AA of the Act was directed. For the purposes of s.359AA of the Act, “the information” was the
first applicant’s enrolment history as contained in the Provider Registration and International Student Management System (“PRISMS”) database, so the applicants contended. They submitted that the first applicant did not understand the significance of that information.
Before examining the transcript to assess whether the Tribunal did or did not follow any particular sequence in the evolution and development of the proceeding, let me first address the Minister’s contentions about s.359AA(1)(b) of the Act.
In essence, Mr Brown’s submissions amounted the following –
a)any procedural rigidity emanated from s.359A and not from s.359AA of the Act;
b)section 359A of the Act did not apply if the information was information to which s.359A(4)(b) of the Act applied, being information that the applicant gave for the purposes of the application for review;
c)
on the facts of the case, the Tribunal put to the first applicant that a gap existed in his enrolment which was information already given to the Tribunal by the first applicant in his application for review, citing that delegate’s reasons for decision dated
21 November 2013, especially at court book p.65; and
d)section 359AA of the Act was inserted to address issues raised by the High Court in SAAP.
In support of the Minister’s contentions about s.359A(4)(b) of the Act, Mr Brown relied on the observations of Sundberg J in Minister for Immigration and Citizenship v Chamnam You[11] (“Chamnam You”).
[11] [2008] FCA 241.
In support of the Minister’s contention that application of s.359A was critical whereas the flexible process in s.359AA of the Act was of lesser importance, Mr Brown relied on the decision of the Full Court of the Federal Court of Australia (Moore, Tracey and Foster JJ) in SZMCD v Minister for Immigration and Citizenship[12] (“SZMCD”).
[12] [2009] FCAFC 46.
Consideration of ground 1
Let me first address the observations of the High Court in SAAP, judgment in which was handed down in May 2005. At the time,
the legislative forerunner to s.359A was s.424A of the Act.
Section 424A(3)(b) of the Act largely corresponded to the present
s.359A(4)(b) of the Act. In SAAP, McHugh J held that the section did not state how the obligation to give the applicant information and to invite the applicant to comment applied nor did the section say how the obligation was to be performed. McHugh J held that the language in s.424A of the Act was imperative so that any failure to comply with the obligation to provide the applicant with written particulars of adverse information constituted a breach of that section. His Honour held that jurisdictional error may arise where a decision-maker failed to discharge “imperative duties” or to observe “inviolable limitations or restraints” found in the Act.[13] Consequently, his Honour held that a failure to comply with s.424A of the Act went to the heart of the decision-making process and a decision made after a breach of s.424A of the Act was invalid.
[13] [2005] HCA 24 at [72].
Jurisdictional error was established for breach of the mandatory nature of s.424A of the Act, as was canvassed by each of Gummow, Kirby and Hayne JJ, albeit in separate judgements in SAAP.
The more flexible approach of s.395AA of the Act was inserted following the decision in SAAP. Mr Solomon-Bridge did not argue to the contrary.
The more pressing issue between the parties was the application of s.359A(4)(b) of the Act. In his reply submissions, Mr Solomon-Bridge argued that the information on which the Tribunal based its reasons for cancelling the 572 visa was the first applicant’s completion of the course in November 2012 whereas the first applicant was supposed to commence the new course in March 2013, neither of which points,
so Mr Solomon-Bridge said, were put to the first applicant. Nor were those matters included in the delegate’s reasons that went before the Tribunal through the first applicant’s own act, so he said.
The applicants submitted that s.359A(4)(b) of the Act did not apply because information concerning the first applicant’s finishing of a course in November 2012 and his commencement of the next course in March 2013 –
a)was not recorded in the delegate’s decision that the first applicant provided to the Tribunal; and
b)was not information otherwise provided to the Tribunal.
A surprisingly large volume of authority has evolved about s.359A(4)(b) of the Act, in particular whether or not information was given or whether the particular applicant “gave” information for the purpose of the application for review. The authorities include the decision of Heerey J in VWBF v Minister for immigration and Multicultural and Indigenous Affairs,[14] the decision of the Full Court of the Federal Court of Australia in NBKT v Minister for Immigration and Multicultural Affairs,[15] the decision of Sundberg J in
ChamnamYou and the decision of the Full Court of the Federal Court in SZMCD.
[14] [2006] FCA 851.
[15] (2006) 156 FCR 419.
To my mind, the relevant enquiry is in two parts –
a)first, the question is whether the information said to have not been given to the applicant was “information that the tribunal considers would be the reason, or part of the reason, for affirming the decision” under review. So much is the verbiage of s.359AA(1)(a) of the Act; and
b)second, if the information was in that category, it is next necessary to ascertain whether that information was information the applicant “gave” for the purpose of the application for review. That much is the verbiage of s.359A(4)(b) of the Act.
In this case, the first applicant supplied the Tribunal with the delegate’s decision, as was common cause. But the important issue for the purposes of s.359A(1)(a) of the Act was whether the information concerning the first applicant having finished the course in
November 2012 in circumstances where he should have commenced the next course in March 2013 “would be the reason, or part of the reason, for affirming the decision”.[16] For the purpose of s.359A(4)(b) of the Act the important issue was whether the applicant himself gave the Tribunal that same information, namely, information that the
first applicant having finished a course in November 2012 in circumstances where he should have commenced the next course in March 2013.
[16] Migration Act 1958 (Cth), s.359AA(1)(a).
The Tribunal’s reasons were divided into two portions. In one,
the Tribunal considered whether the first applicant complied with condition 8202 of Sch.8 of the regulations. In the other, the Tribunal examined whether to exercise its discretion to cancel the 572 visa.
In paragraph 10 of its reasons, the Tribunal said it advised the
first applicant it had information which, subject to his comment or response, would be the reason or part of the reason for affirming the decision under review. The Tribunal told the applicant he was entitled to request further time before commenting or responding. The Tribunal stated “that the information was contained in computer database records which showed the history of [the first applicant’s] enrolment in all courses in Australia”.[17] The Tribunal stated further that
such “information showed the applicant was not enrolled from
4 March 2013 until the time of the delegate’s decision in November 2013”.[18][17] Court book filed 10 February 2015, p.179 at [10].
[18] Ibid.
That much of the Tribunal’s reasons was part of the delegate’s reasoning.
The next passage of paragraph 10 of the Tribunal’s reasons was the subject of challenge on the basis that the first applicant was not told it would or may form part of the Tribunal’s reasons for affirming the delegate’s decision. The relevant part of the sentence read as follows –
… and further, that the applicant did not appear to have attended any classes or studies since completing a course in
November 2012. Accordingly the applicant had not attended any classes for approximately a year at the time’s (sic) visa was cancelled.[19]
[19] Court book filed 10 February 2015, p.179 at [10].
The delegate’s decision stated that the first applicant last completed a course on 31 October 2012. The delegate wrote –
PRISMS indicates that the student last finished a registered course on 31 October 2012 … PRISMS also indicates that the client has not been enrolled in a registered course since
4 March 2013. I have also considered this to be a significant period of time without enrolment.[20]
[20] Court book filed 10 February 2015 at p.103.
Being part of the delegate’s reasons, those passages quoted immediately above were given by the first applicant to the Tribunal for the purposes of s.359A(4)(b) of the Act. But Mr Solomon-Bridge submitted the Tribunal, on the fifth page of the transcript of the proceeding before it, misstated the dates. In the context of information that would be the reason or part of the reason for affirming the decision under review, the Tribunal said the following –
Indeed, that you had finished a course … in November 2012 and you were supposed to commence the next course in
March 2013…[21]
[21] Affidavit of Carina Ford affirmed 15 September 2016, exhibit “CF-1” at p.5.
To my mind, the extracts of the delegate’s decision coupled with the exchange extracted immediately above indicated a substantial if not precise correspondence of information. As to the November 2012 date, being the date that appeared in the Tribunal’s exchange with the
first applicant, the wording of the Tribunal statement was “you had finished a course… in November 2012…”.[22] That was correct as the PRISMS records showed the first applicant had last finished
a registered course on 31 October 2012 and therefore he had
“finished a course”in November of the same year. In other words,
by November 2012 the first applicant had finished his course of studies or, expressed slightly differently, by November 2012 the
first applicant’s pursuit of his chosen course of studies had come to an end. Construing the sentence in the manner argued by the applicant was erroneous. Even if correct, the error (and in my view there was none) was of a single day.
[22] Ibid.
As to the March 2013 date, the delegate’s decision stated that according to the PRISMS records, the first applicant had not been enrolled in a registered course since 4 March 2013. In the context of information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, the Tribunal put to the first applicant the sentence –
Indeed, that you had finished a course … in November 2012 and you were supposed to commence the next course in
March 2013…[23]
[23] Affidavit of Carina Ford affirmed 15 September 2016, exhibit “CF-1” at p.5.
Mr Solomon-Bridge’s complaint about the first applicant being “supposed to commence the next course in March 2013”[24] was that the delegate did not use those precise words. That much is true.
One explanation may be that the wording quoted immediately above was less formal but any such lessening in informality is consistent with the obligation in s.359A(1)(b) of the Act, namely that the Tribunal was to ensure, as far as was reasonably practicable, that the applicant understood why the issue was relevant. Communicating in a manner most likely to enhance comprehension, even if that led to a reduction in formality, was to be encouraged and not to be condemned. But so far as the substance of the proposition was concerned, it seemed to me the Tribunal conveying, perfectly properly, that the first applicant’s 572 visa conditions required him to be studying, that his enrolment in the course came to an end on 4 March 2013 with the result that he had not been doing what his 572 visa conditions required, namely being enrolled in a course of study and that such a state of affairs emerged in March 2013. That corresponded substantially if not precisely with the information in the delegate’s decision, the wording of which the
first applicant himself provided to the Tribunal.
[24] Ibid.
In my opinion, there is nothing in the proposition advanced by the
first applicant on this issue. In my view, the relevant information had already been given to the first applicant by the terms of the delegate’s decision with the consequence that according to s.359A(1)(b) of the Act the Tribunal, strictly speaking, was not required to put the same material to the first applicant when questioning him.
The Tribunal did not breach of s.359A of the Act.
Likewise, in my view, the Tribunal did not breach s.359AA(1)(b) of the Act.
Whether or not s.359AA of the Act was even engaged remains to be determined. In my view it was not. Let me explain why.
As a matter of statutory interpretation, the requirements of s.359A of the Act are obligatory whereas the elements of s.359AA of the Act are discretionary. That much was pointed out by the Full Court of the Federal Court of Australia in SZMCD, albeit in the context of ss.424A and 424AA of the Act. In view of my finding that s.359A(4)(b) applied, the mandatory obligations under ss.359A(1) and (2) were relaxed by reason of the fact that key information had already been given by the first applicant to the Tribunal.
So far as the application of s.359AA of the Act was concerned, I do not agree with paragraph seven of the applicants’ written submissions where counsel wrote that the requirements of s.359AA of the Act are mandatory procedural requirements. In fact, in paragraphs 73 to 75, 81, 86, 87 and others of its reasons for judgment, in SZMCD the Full Court of the Federal Court of Australia said the opposite to the proposition urged in the applicants’ written submissions on this point. Similarly, in the reasons for judgment of McHugh J in SAAP, his Honour stated the point differently to the way the applicants’ counsel’s written submissions read in paragraph seven of those submissions.
Once it is recognised that s.359AA of the Act imports discretionary matters that are complementary to s.359A of the Act (as was said in SZMCD at [80]) it is at once apparent that the Tribunal need not necessarily apply the component elements of s.359AA of the Act.
Here, the necessity to apply the elements of ss.359A(1) and (2) was relieved by reason of s.359A(4)(b) and so the Tribunal was relieved of the need to address s.359AA of the Act.
So far as the applicants’ argument about a sequence of steps in s.359AA of the Act was concerned, in view of my conclusion that s.359AA of the Act did not apply to the facts of this case, there is no need to consider the issue. However, lest it be important, I reject the contention for reasons given by Kirby J in SAAP, especially between paragraphs 154 to 158 of his Honour’s reasons for judgment.
In my view ground 1 failed.
Ground 2 – the apprehended bias point
In submitting that the Tribunal’s decision was affected by a reasonable apprehension of bias, Mr Solomon-Bridge contended that the
reasons in Re Refugee Review Tribunal; Ex parteH[25] (“Ex parte H”), SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship[26] (“SZRUI”) and MZZLO v Minister for Immigration and Border Protection (No 2)[27] (“MZZLO”) all pointed to the Tribunal’s decision being so affected. Mr Solomon-Bridge submitted that the Tribunal conducted the hearing at which the Minister appeared in a manner that exhibited incredulity, cynicism and a confrontational exchange or was otherwise intimidating. Mr Solomon-Bridge urged me to not only read the transcript of the hearing before the Tribunal but to listen to the audio recording of it. I did that, reading the transcript several times and listening to the recording of the hearing before the Tribunal several times also.
[25] [2001] HCA 28.
[26] [2013] FCAFC 80.
[27] [2016] FCA 356.
Before going to the authorities, let me point out a self-evident reality about any interaction between a person in a formal environment questioning another in circumstances where the person being questioned is obliged to answer and to continue to subject himself or herself to questioning until the questioner decides to end the questioning.
First, most people are ill at ease when being questioned in that manner. They usually find the whole experience alien, more akin to an ordeal. Frequently they give stilted answers or give answers that are not as expansive as they might give conversationally in a more relaxed environment. Experience with witnesses teaches that some people giving evidence regard the process of being questioned in a formal environment as one that is to be ended as soon as possible.
Other witnesses have trouble being concise or, by their nature,
they give long discursive and sometimes unresponsive answers.
The evidence of witnesses in any of the categories described above is not necessarily to be rejected on account of the witness not being credible. A witness who stumbles in his or her answers is not necessarily evasive nor does a verbose witness necessarily prevaricate.
Equally, a questioner may adopt any number of styles in eliciting the evidence he or she needs. Some adopt a relaxed conversational style, akin to a fireside chat. Others adopt a more pointed and direct method of questioning. Pursuing an answer previously given is another technique. The questioner is legitimately entitled to pursue with a witness discrepancies in that witness’s answers as previously given, even forcefully.
Even the tone of voice, volume of voice and posture of the questioner can differ as between questioners. How receptive a particular witness is to the loud voice will vary from witness to witness. For example,
a witness of hardened sensibilities may take no exception to questions asked by a Tribunal member when the Tribunal asks the questions loudly, hands on hips, leaning forward while staring penetratingly in the eyes of the witness. Other witnesses of more delicate sensibilities would find that entirely hostile.
The Tribunal’s procedures are inquisitorial, an observation made time and again. Common law rules of court room advocacy in which evidence is advanced by evidence-in-chief or by cross-examination have no role in the inquisitorial process. That said, the line is often finely drawn between legitimately forceful questioning on the one hand and of noxious questioning that amounts to bias - actual or apprehended - on the other.
The law on the subject of reasonable apprehension of bias has endeavoured to provide a doctrinal basis that accommodates the variables of human frailties when a person is giving evidence. Equally, the law on the subject has recognised that differences exist between adversarial procedures in common law courts as opposed to inquisitorial procedures in administrative tribunals. Further, the law on this subject has recognised that parties may not be represented in an inquisitorial proceeding. In Ex parte H, Gleeson CJ, Gaudron and Gummow JJ made observations about the concept of apprehended bias in an administrative proceeding between paragraphs 23 and 32 of the High Court’s reasons. It is instructive to set out that reasoning –
[23]After the above exchange, the male prosecutor attempted to explain his fears if returned to Sri Lanka but was interrupted when the Tribunal expressed the view that at least one of the letters on LTTE letterhead was manufactured and that his evidence was fabricated. When the male prosecutor replied that he had received the letter, the Tribunal stated:
“You see, there's no basis whatsoever from my point of view on which I could conclude that you will be suspected of being an LTTE supporter. You're Sinhalese. There is no Sinhalese support for the LTTE. Your wife doesn't even speak Tamil”."
[24]A little later, the Tribunal again asserted the belief that the letters on LTTE letterhead were not genuine and asked if the male prosecutor wished to say anything else. The following then occurred:
“[Male Prosecutor]: If you don't believe us it's nothing else to say. The only thing that ...
[The Tribunal]: You're absolutely right, Mr [H], I don't believe you.
[Male Prosecutor]: The people around us they wanted to chase us away from that place. In [1996] they stoned us after a couple of months later - after our marriage they stone us then that was ...
[The Tribunal]: Because they somehow guessed that your wife is part Tamil?
[Male Prosecutor]: They know that.
[The Tribunal]: They can tell just by looking at her?”
There then followed a discussion as to whether the female prosecutor was of Tamil appearance until the male prosecutor pointed out that her appearance was beside the point because people in Sri Lanka were inquisitive about people's background. The Tribunal responded:
“Even if they know she's part Tamil ... in your evidence your situation is not unusual. That's certainly my understanding, that your situation is not particularly unusual. There isn't any evidence that people in your particular circumstance face difficulties, Mr [H].”
[25]In response to the Tribunal's assertion that people in his situation did not face particular difficulties, the male prosecutor claimed that his case was different. This then ensued:
“[The Tribunal]: So you keep saying but you just don't seem to be able to say anything that's the least bit convincing, do you?
[Male Prosecutor]: Than by - stoning us ...
[The Tribunal]: Mr [H], at this point in time I don't accept that you had a single difficulty.
[Male Prosecutor]: Well, I'm sorry, sir, I have.
[The Tribunal]: Because they don't fit. They don't fit with what we know about Sri Lanka, they don't fit with your circumstance and I've heard you giving the evidence and I find you to be a most unconvincing witness.
[Male Prosecutor]: Well, [sir], I had to go through a lot ...
[The Tribunal]: Mr [H], about all I believe from you is your name and address.”
[26]In reply to the Tribunal's statement that it did not believe his claims, the male prosecutor asserted that his wife and he, himself, knew what had happened. A short exchange followed in which the Tribunal informed him that:
“I’ve found your evidence to be most unconvincing. It's an improbable story and you've told it very badly".
There was a further short exchange in which the male prosecutor said that he and his wife were hoping to go and hide in India to escape from their problems. The Tribunal asked if there was anything else which he wished to add, to which the male prosecutor replied:
“If you don't believe us, no."
The hearing then concluded, the Tribunal's final remarks being:
“All I have is a power to make a decision on the facts that I think are true and I'm afraid to say, Mr [H],
I don't think that you've told me the truth. I think that you've fabricated the story and it's most unconvincing. So that's the basis upon which I'm going to have to make a decision, Mr [H]. Good luck.”[27]The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided7. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
[28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29]Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30]Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31]Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
[32]In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa.
In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.[28][28] [2001] HCA 28.
Constant interruptions, constant challenges to a witness’s truthfulness and to the plausibility of that witness’s account of events or the exhibiting of a preconceived view are often indicators that a
fair-minded lay observer might well apprehend bias by the Tribunal.
An applicant asserting a denial of procedural fairness founded on an alleged reasonable apprehension of bias must “firmly establish” the existence of such an apprehension. So much was held by Flick J when sitting as a member of the Full Court of the Federal Court of Australia in SZRUI, referring to Mason J’s decision in Re JRL; Ex parte CJL.[29] Robust and forthright testing of the applicants’ claims will not sustain a claim to apprehended bias as was held in SZQAF v Minister for Immigration and Citizenship,[30] NAOX v Minister for Immigration and Citizenship,[31] SZKLK v Minister for Immigration and Citizenship[32] and SZOEV v Minister for Immigration and Citizenship.[33]
[29] (1986) 161 CLR 342, 352.
[30] [2010] FCA 431.
[31] [2009] FCA 1056.
[32] [2008] FCA 1125.
[33] [2010] FCA 1045.
In SZRUI Flick J held as follows –
Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.[34]
[34] [2013] FCAFC 80 at [33].
More recently in Isbester v Knox City Council,[35] the High Court of Australia held that the test for apprehended bias was whether a
fair-minded observer might reasonably apprehend that an administrative officer might not have brought an impartial mind to the decision in issue. A more elaborate discussion of the issue is recorded between paragraphs 20 and 23 of the High Court’s reasons. Of course, that case did not involve the Tribunal nor did it involve a merits review under the Act. To that extent, the point of principle in that case is of more general application than it might be to the specific circumstances of this case.
[35] (2015) 255 CLR 135.
In the specific context of the test for the existence of a reasonable apprehension for bias under the Act, the decision of the Full Court of the Federal Court of Australia in AZAEY v Minister for Immigration and Border Protection[36] is highly instructive. There, the Full Court (North, Besanko and Flick JJ) stated several propositions about the conduct of a tribunal member and its bearing on a reasonable apprehension of bias. Those propositions may be catalogued in the following manner –
[36] [2015] FCAFC 193.
a)citing Minister for Immigration and Multicultural Affairs v Jia,[37] the starting point is the general proposition that, in the absence of a statutory provision to the contrary, a party to an administrative process is entitled to have the claim resolved by a decision-maker whose mind is open to persuasion;
[37] (2001) 205 CLR 507.
b)citing Ebner v Official Trustee in Bankruptcy,[38] the governing principle is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision-making process;
[38] (2000) 205 CLR 337.
c)citing Re Minister for Immigration and Multicultural Affairs;
Ex parte AB[39] sustained ill temper can give rise to a reasonable apprehension of bias yet momentary outbursts that pass and misunderstandings in the often stressful world of adjudication must be tolerated;[39] (2000) 177 CLR 225.
d)occasional displays of impatience and irritation, whether justified or not, may not amount to disqualifying bias[40] and harsh tones may not be sufficient;[41]
e)even an isolated exchange does not preclude a reasonable apprehension of bias being exposed;[42]
f)citing VAAD v Minister for Immigration and Multicultural and Indigenous Affairs,[43] the onus rests on the applicant to make out a claim to a reasonable apprehension of bias; and
g)on the facts of that case, no reasonable apprehension of bias was established where the Tribunal member –
i)raised her voice;
ii)asked questions in an incredulous manner;
iii)expressed reservations about the applicant’s evidence in an emphatic manner; and
iv)interrupted the applicant.
[40] VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102.
[41] SZNVM v Minister for Immigration and Citizenship [2010] FCA 261.
[42] AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [22].
[43] [2005] FCAFC 117.
As recently as April 2016 at single judge level, Justice Moshinsky of the Federal Court examined the content of the concept of a reasonable apprehension of bias in MZZLO. His Honour took the view that on the facts of that case, a reasonable apprehension of bias was exhibited.
His Honour said the following –
The question is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. More is required than a vague sense of unease or disquiet;
the apprehension of bias must be firmly established. In the present case, the way that the member questioned the appellant about the second statutory declaration in the early part of the hearing resembled a memory test. The impression is that the questioning was designed to make the appellant fail in the task, and thereby confirm the member’s suspicions about the declaration. Further, the member made a serious attack on the professional conduct of the applicant’s lawyer in the preparation of the appellant’s evidence. Whether or not this was justified (and I do not think it was), it might reasonably be apprehended by a fair-minded lay person that the member was so influenced by what he perceived to be the lawyer’s improper or inappropriate conduct, that he might not bring an impartial mind to his assessment of the appellant’s case.[44][44] [2016] FCA 356 at [13].
As mentioned above, I have not only read the transcript of the hearing before the Tribunal but also listened to the recording of that hearing as well. For the most part, the Tribunal member was polite, frequently thanking the first applicant. For the most part the questions put by the Tribunal member were open questions, prefaced with, when, why, what or where. In response to those questions the first applicant answered in an unrestrained way. In other instances, the Tribunal member picked up on an answer previously given and explored it. One illustration took place early in the hearing when the first applicant stated he changed from hairdressing to hospitality and later to aged care. After the
first applicant responded, the Tribunal member put to the first applicant that he had wasted one and a half years while undertaking hairdressing. To my mind, to that point there was no error in the style of questioning, the content of it or the degree of force applied in asking those questions.
Counsel for the applicants complained that the Tribunal member interrupted the applicant or asked questions in a manner that injected a disbelieving attitude. One illustration, set out on the sixth page of the unnumbered pages of the transcript, involved the Tribunal member asking the first applicant to confirm he commenced a course of study on a particular date. The first applicant twice answered in the affirmative. The Tribunal member asked what evidence the
first applicant had for the answer he gave. The first applicant then went on to speak of a medical certificate. The Tribunal member told the
first applicant that the Tribunal member was not asking about a medical certificate, that the applicant had known for most of the year that he was not enrolled and the Tribunal member pressed for evidence that the first applicant had started a course on a particular date. Pausing there, in my view that line of questioning and the way it was undertaken was perfectly proper, dare I say important in the determination of the issues in this case.
The Tribunal member then informed the first applicant that a conclusion by the Tribunal member that the first applicant was misleading the Tribunal member or that he was attempting to avoid answering the question may have a bearing on the assessment of the first applicant’s credibility. As a matter of fact and law, that was correct. Indeed, in giving that statement the Tribunal member gave the first applicant something the law did not require the Tribunal member to give – a running commentary. If anything, that was to the
first applicant’s advantage.
Then the Tribunal member addressed the point of the first applicant’s commencement of a course in November 2012. It will be recalled that the first applicant’s earlier course came to an end on 31 October 2012. The Tribunal member asked what evidence the first applicant had to show he started a course in November 2012. The first applicant said he had none. That was a very significant admission by the first applicant. He was not tricked into giving it nor was he cajoled, browbeaten or harassed into that statement. The Tribunal member behaved perfectly properly in asking the question that led to that answer. The answer given by the applicant spelt his own doom on the merits review.
But the Tribunal member insured the first applicant was not confused so he asked the first applicant again. The Tribunal member asked the following –
Member -Well, you say you started the course for one week; so you started on 12th November, 2012?
First applicant - Yes.
Member -Why did you attend the course for just one week?
First applicant - After that I got sick.[45]
[45] Affidavit of Carina Ford filed 16 September 2016, exhibit “CF-1” at p.11.
There was nothing untoward in that exchange.
The first applicant asserted that his wife’s pregnancy prevented him from going to classes. The Tribunal member asked how his wife’s pregnancy prevented him from being enrolled. The first applicant said he was looking after his pregnant wife. The Tribunal member asked how the first applicant could look after his wife if his back pain was so bad that he was unable to go to classes. The first applicant gave a
non-responsive answer. The Tribunal member pursued the point as it was obviously important. In pursuing the first applicant’s answers,
the Tribunal member was courteous, permitting the question to be answered before asking a further question. Where the first applicant gave an answer that was non-responsive, the Tribunal member brought the first applicant back to the question with the accepted,
time-honoured method of focusing a witness by the use of the phrase “just listen”.
In my view no error was committed in that. Nor might a hypothetical fair-minded lay observer, properly informed as to the nature of the proceeding or process reasonably apprehend that the decision-maker might not have brought an impartial mind to the making of the decision.
The first applicant invited me to conclude that the questioning of the first applicant was not appropriate because, among other things, it was intimidatory or cynical. I reject that submission. To the contrary,
the questioning was on point and relevant. The first applicant in many instances was non-responsive. The Tribunal member was entitled to seek the answers the Tribunal member sought.
As to tone, intonation, unpleasantness and suchlike, I detected nothing inappropriate. I say that even recognising that the first applicant was not represented at the hearing before the Tribunal. Robust questioning is permissible. The questioning of the first applicant by the Tribunal member was far from robust questioning. The questions were proper and appropriate.
Ground 2 failed.
Conclusion
Both grounds failed. The application to this Court for judicial review is dismissed. The applicants must pay the Minister’s costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 16 February 2017
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