SWDB v Minister for Immigration
[2007] FMCA 665
•7 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SWDB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 665 |
| MIGRATION – Allegation of apprehended bias arising at hearing of Refugee Review Tribunal – contrast of assessment of that allegation in curial and non-curial proceedings – no apprehended bias evident – application dismissed. |
| Migration Act 1958, ss.414A, 474, 476 and Part 7 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 Craig v The State of South Australia (1995) 184 CLR 163 |
| Applicants: | SWDB, SWGD, SWHB, SWJB & SWFB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 31 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 23 November 2006 |
| Date of Last Submission: | 23 November 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 7 May 2007 |
REPRESENTATION
| Counsel for the Applicants: | Mr Ower |
| Solicitors for the Applicants: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr Telfer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 7 February 2006 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 31 of 2006
| SWDB, SWGD, SWHB, SWJB & SWFB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 19 December 2005. The review actually relates to two decisions given on that same date in relation to five named applicants. The decisions were published as No.05/51835 and No.05/51835A on account of the fact that there were matters arising in the evidence of one of the applicants before the Tribunal which that applicant did not want one of the other applicants to be aware of. Accordingly, the decision described as No.05/51835A is that to which I will refer in these reasons. That decision deals with all of the matters arising in respect of each of the applicants. The decisions are the same except for those parts that relate to the first applicant’s sister aforesaid (the fifth named applicant).
In order to succeed in the application before me the applicants must demonstrate that the decision referred to was one vitiated by jurisdictional error as that concept has been explained in the context of decisions under the Act by the High Court in Plaintiff S157 v The Commonwealth (2003) 211 CLR 476 and as that concept has been more generally explained in other High Court decisions such as Craig v the State of South Australia (1995) 184 CLR 163. Unless that jurisdictional error can be demonstrated, the decision of the Tribunal will be a privative clause decision as defined in s.474 of the Act.
The hearing before me proceeded upon the basis that the jurisdictional error identified was the contention that the decision was attended by apprehended bias. It is contended that a fair-minded observer would reasonably apprehend the Tribunal may not have brought an impartial, unprejudiced mind to the task of deciding the matters that required decision and specific reference is made in the application to the manner in which the Tribunal conducted the hearing before it on 23 September 2005, the way in which it dealt with the findings of fact made by the Tribunal in two earlier decisions relating to the applicants and the Tribunal’s findings of fact and credit in relation to the claims of the applicants.
In order to enable me to adjudicate upon the claim as to apprehended bias, I was provided with a transcript of the hearing on 23 September 2005 which I have read and with an audio recording of the entire hearing which I was invited to listen to by the applicants’ legal representatives. I have listened to it in its entirety.
Applicants 1 and 2 are married, applicants 3 and 4 are their children and applicant 5 is the sister of the applicant husband, the first-named applicant.
The applicants left Albania in January of 2000, residing for some time in Montenegro before making their way to Australia. The difficulties are said to arise from the fact that the applicant’s sister, the fifth named applicant, broke an engagement with another Albanian citizen in 1999. That act is said to have triggered the application of the old feudal laws or traditions of Albania which are said to require the taking of the blood of a male member of the family responsible for breaking the engagement. In addition, the fifth named applicant says that she fears that the family of the person to whom she was engaged or that person would abduct her and force her into marriage with him or force her into prostitution in Italy.
The applicants were represented at the hearing before the Tribunal by Ms J McGrath, an experienced immigration lawyer.
On the day of the hearing before the Tribunal the first and fifth named applicants had broadened their claims in significant ways. The first named applicant stated that in addition to the blood feud problem, his family had difficulties in dealing with corrupt officials in Albania in relation to land owned by his family. The fifth named applicant made a claim that she had been raped by the person to whom she was engaged. She had not told any member of her family of this rape either at the time or subsequently. She had only released this information to a counsellor attached to the Red Cross in the weeks preceding the hearing before the Tribunal.
These additional declarations of the first and fifth named applicants were supported by statutory declarations from them dated
23 September 2005.
The fifth named applicant also provided a statutory declaration dated 23 September 2005 indicating a change in her personal circumstances in that she was no longer living with the father of her son, Jon. The father had been removed from Australia on 21 November 2002.
By letter dated 28 September 2005 Ms McGrath on behalf of the applicants wrote to the Refugee Review Tribunal making the claim of apprehended bias and particularised her claims in that regard. The letter also appears to promote an allegation of actual bias.
At the hearing before me it was only the application of apprehended bias which was pursued.
As noted by Kenny J in VFAB v MIMIA [2003] FCA 872 at para.[17]:
The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 permits the conclusion that, if jurisdiction error is established on the grounds of actual or apprehended bias in respect of a decision that would otherwise be a ‘privative clause decision’ within s.474 of the Act, then orders of the kind the applicant seeks may be made.
The same considerations apply in respect of privative clause decisions pursuant to s.476 of the Act as it now stands.
The need for a hearing to be conducted without apprehension of bias is an aspect of the obligation of the Tribunal to accord procedural fairness in administrative decision-making in relation to the applicant (see NADH 2001 v MIMIA [2004] FCAFC 328 at para.[13]).
That decision of NADH goes on to define the test for apprehended bias as follows at para.[14]:
The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90-92; Ebner v The Official Trust in Bankruptcy (2000) 205 CLR 337 at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].
In that same decision, the Full Court of the Federal Court went on to describe the difference in the application of apprehended bias between decision makers such as the Tribunal and curial decision makers at paras.[19-20]:
19. Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Minister v Jia Legeng (2001) 205 CLR 507 at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
20. At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.
Kirby J in a dissenting judgment in MIMA v Jia [2001] HCA 17 at 134-135 discussed the ways in which an allegation of apprehended, or imputed, bias differs from an allegation of actual bias.
134. Quite different considerations are raised from an allegation of imputed bias is made in this Court. An applicant in such a case is not concerned, as such, with the state of mind or attitude of the decision-maker. The focus of attention is on the decision itself and the manner in which it was apparently arrived at. The criteria are not subjective to the decision-maker. They are wholly objective. The issue raised is decided not by reference to a serious accusation of deliberate wrong-doing and misuse of office. It is judged by the much more readily established consideration of how the decision, and the process of arriving at it, might appear to the persons affected and to the public, judged reasonably and objectively.
135. Many decisions of this Court have emphasised that imputed bias is determined by reference to a standard that is more easily made out. Such bias must still be “firmly established” (R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553). It is not enough that the reasonable bystander has a vague sense of unease or disquiet. The test for imputed bias, which has now been accepted by this Court, is expressed in terms of possibilities (“might”) rather than a proof of a “high probability” (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; cf Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294) of bias inconsistent with the fair performance of public duties, that was formerly the accepted criterion.
Kirby J also said at para.[146]:
Approach: impression, not fine analysis: Other members of the Court have set out the texts of the radio broadcast and letter in question (see reasons of Gleeson CJ and Gummow J at [92], reasons of Callinan J at [315]-[317)). They have dissected its paragraphs. In my respectful view, this is not how the law of imputed bias operates. Being concerned primarily with the impact of the events upon the persons affected and upon reasonable members of the public (cf Public Utilities Commission v Pollak 343 US 451 at 467 (1952) per Douglas J (diss)), what is involved is the general impression derived from the evidence, not a lawyer’s fine verbal analysis.
And such comments are as apposite to an evaluation of decision-making of a statutory tribunal as they are to the circumstances of Jia’s case (supra), where the decision concerned was the exercise of a ministerial discretion.
So the application is one where the general impression received from a reading of the whole of the transcript and a consideration of the totality of the complaints is important. Each complaint must of course be given attention and examined as to issues of how the fair-minded lay observer would have responded to hearing the impugned words said or having observed the impugned behaviour. But we must not forget to stand back when all of the specific complaints have been scrutinised and do our best to respond in the way in which our fair-minded lay observer would have responded when the hearing came to a close. General impressions are important in that sense.
Mr Ower, for the applicant, properly conceded that the impugned behaviour in this case could not in its totality be characterised as at the worse end of the spectrum. Nevertheless, it is only the possibility of the relevant apprehension that is required. At the end of the hearing, with the fair-minded lay observer think that the applicant was before a Tribunal whose mind was open to persuasion? That is the question. Pre-judgment is to any one experienced in the exercise of curial or administrative decision making relatively easy to identify. One tends to know it when one sees it.
The letter from Ms McGrath to the Tribunal of 28 September 2005 has already been referred to. The applicant relied upon the matters raised therein. Most of them were subsumed in the submissions made by counsel before me. Mr Ower took me to many parts of the transcript. I will not refer to each one of those parts in these reasons but only to the more significant. That does not mean that they all were not taken into consideration in the exercise described above.
The sister applicant had spoken to a counsellor from the Asylum Seeker Resource Centre at the Red Cross about the rape allegations. Ms McGrath indicates very early on at the hearing that she would prefer to have the Tribunal speak with that person or at least she tries to ask that that occur, before she is cut off by the Tribunal at page 3 of the transcript:
MS McGRATH: Not while she’s giving her evidence and if you are minded to speak to Ms Smith, the counsellor, we’d also prefer that ---
MS MOJSIN: I’m not.
MS McGRATH: Okay.
MS MOJSIN: That’s hearsay. I like to explore these things myself. Who would you like to me hear from first?
That is a peremptory refusal to say the least. The Tribunal would obviously want to hear from the applicant about the rape. That does not mean that the Tribunal should not hear from anyone else. While the weight to be given to the counsellor’s evaluation of the rape allegations may be minimal, it may have been useful to hear it. It may or may not have been opinion evidence. Even if it were hearsay, the Tribunal might have allowed it to be received. At the very least, Ms McGrath should have been allowed to explain why Ms Smith should be spoken to. The Tribunal has very broad powers to receive such evidence (see s.424 of the Act). Ms Smith’s evidence may not have been significant but the point is that the way in which the Tribunal dealt with the request to take her evidence (or to speak to her, preliminary to taking her evidence) would alert the fair-minded lay observer that the Tribunal was at the least approaching its task with some robust sense of its own direction and, at the worst, an attitude of disposition adverse to consideration of the applicant’s case. But more, much more would be required later in the hearing for the finding of pre-judgment to be reached. Nevertheless, it was not an auspicious start by the Tribunal.
The Tribunal was alerted to the applicant sister’s request that her brother leave the room during her evidence. The Tribunal asked the brother to leave at page 6 of the transcript. Ms McGrath asks if it would be all right for the sister to quickly have a word with the brother before he leaves the room. That leads to this exchange:
MS McGRATH: Madam, I’m just wondering whether it would be all right for Ms M to just quickly have a word with her brother. I think she wants to reassure him about him being asked to leave the room?
MS MOJSIN: Haven’t you addressed this with him before?
MS McGRATH: Yes, we have indicated that there might be – that Ms M would give evidence (indistinct) I think she’s feeling a little nervous that he’s ---
MS MI: Just for a minute, please.
MS MOJSIN: Look, I have a little bit of a problem with this. I’ve only got this room for a certain amount of time ---
MS McGRATH: Okay.
MS M: Please.
MS MOJSIN: --- and the more time that we break means if we don’t get this finished within the allocated time you’re going to have to come back for a second hearing and you know I ---
MS M: Just half a minute – just even one minute, please.
MS MOJSIN: Well, I’m going to have to call in a tribunal officer to close the hearing and then – it’s very complicated. Perhaps we could start and then we’ll move on. Okay. Madam, you’ve asked for your brother not to be present while you’re giving your evidence and you have provided a statutory – I think it’s probably now been --- .
I must say that all that seems rather unnecessarily bad natured. It is a sign, I think, of animadversion to the parties emanating from the Tribunal. It is not in itself determinative of pre-judgment (far from it) but it is another step along the way to such a conclusion.
“I have a bit of a problem with this” is the Tribunal’s stock-in-trade expression where evidence is given or a submission made that does not find favour with the Tribunal. A more felicitous expression might be found that focuses on the objective weaknesses or flaws in the evidence or submissions rather than the subjective state of mind of the decision-maker. The personalisation of the adjudication in this matter is to be regretted.
Mr Ower complains of the style of examination of the applicant sister by the Tribunal that then commences. It is said to be “staccato” in style, not permitting answers to deviate from the rhetorical propositions that the questioner is putting. I confess to not apprehending such problems with the questioning. The information elicited appears to be relevant background information. The questions, or most of them, appeared to be open ended.
The topic of the status of women and opportunities for social interaction open to them in Albania is raised at page 11 of the transcript. This leads to these remarks from the Tribunal:
MS MOJSIN: You can’t do that in a lot of societies – Albanians --
MS M: No, I know ---
MS MOJSIN: --- are not that special.
MS M: No. They are and they not appeal.
MS MOJSIN: They’re not that special. I’m sure the Montenegrin girls can’t go out of their home either.
MS M: Yes, here, because – a few Albanians, as well, you know, which ---
MS MOJSIN: All the Greeks, all the Greek girls, so it’s a very common ---
MS M: It’s not yet – Albania, you know.
The passage is said, again, to indicate animadversion to the claims of the applicant sister. It will become apparent later in the hearing the Tribunal has not read all of the material provided by the applicants prior to the commencement of the hearing. That circumstance is said to aggravate the negative attitude to the claims displayed here. It is said that the Tribunal is indicating that there is nothing unique about the sister applicant’s claims, even at this early stage. I do not understand that to be what the Tribunal is indicating at this stage; however, the observation as to other Balkan countries having similar attitudes to those experienced by the applicant sister occurs in the kind of exchange one expects to hear in the conduct of such applications. The point of discussion is not one that is important to the ultimate disposition of the application in any event.
The case of the applicants was that they travelled from Albania and lived across the border – five to ten kilometres from their home village – in Montenegro. The area they lived in had a population with a high proportion of Albanians. The applicant sister said she rarely ventured out from the home in which she was residing. The applicants crossed the border to Montenegro by boat and in secrecy. The applicant sister is giving her account of these matters at page 16-17 of the transcript, when the Tribunal says at line 12:
MS MOJSIN: I have difficulty with you telling me that.
And later at lines 30-34:
MS MOJSIN: That’s all right. No, no, I’m not worried about your English. I can understand you perfectly. What I don’t understand – and I asked myself this question when I read you numerous files – was, why would you go to Montenegro to an area which was 80 to 90 per cent Albanian where everybody could find you if they wanted to?
Then on the next page in relation to not going outside the house, there is this exchange:
MS MOJSIN: I have difficulty with that – with you telling me that – and the reason I have difficultly was because Montenegro is part of Serbia and Montenegro. Right? The authorities there are very strict and they know who comes into town and who doesn’t come into town and they have a system of registration; you know where you’ve got to go – where you go in. You’ve got to indicate who you are. Now, I have difficulty with you telling me that you were in hiding in Montenegro in you uncle’s place and the Yugoslav authorities didn’t know you were there and neither did the rest of people in the Volce five K’s over the border.
The location where the parties were staying being some five to ten kilometres from the home village is referred to again, leading to the now familiar refrain from the Tribunal at line 41:
MS MOJSIN: I have difficulty with you telling me that.
Ms McGrath seeks to intervene:
MS McGRATH: I wonder if ---
MS MOJSIN: No. Adviser, adviser, I’m running this hearing. Thank you. I have difficulty, see.
The applicant sister continues her account of her experiences within the home. At line 24 on page 19 this exchange commences:
MS MOJSIN: So what you want me to believe ---
MS M: Yes, I just would ---
MS MOJSIN: All right. Hang on and just let me put this to you. What you would like me to believe is that you went into hiding in Montenegro and you stayed in a place which was about five kilometres away from your village and the people who were pursuing you in your village didn’t know that you were in Montenegro?
These are important issues being canvassed at this point. The applicant sister’s account is understandably subject to scrutiny. Do these passages, however, indicate that the scrutiny is being conducted in a manner and with a method indicative of prejudgment? The use of the expression – really it is a euphemism - “I have difficulty with you telling me that” has already been remarked upon. The exchange is vigorous, the sense of clamour accentuated by the applicant sister’s emotional mode of expression. The treatment by the adviser is peremptory, bordering on rude. Yet, again, I am not left with a sense that the fair-minded lay observer would take from these passages a view that the Tribunal’s mind was not open to persuasion. The mind is patently not blank. The Tribunal has views that result in strongly worded propositions being put for comment to the applicant. But we look for more than that. We look for a mind that will not be deflected from its locked-in course. These are passages that leave a sense of discomfiture on the listening or even a reading of the transcript. But I think they fall short of evidence of apprehended bias. Nevertheless, they are an important part of the general picture that has to be assessed at the conclusion of the hearing.
There is a curious set of questions put at page 20 of the transcript about whether the applicant sister ever visited the Australian Embassy in Belgrade. It appears that her passport may have been sent to that embassy by a relation in 1999 (see page 21 of the transcript). If that was the purpose of the question then it ought to have been made clear. It leaves a very odd impression if such questions are left unexplained. I do not think, however, that it adds in any significant way to the concerns in relation to the issue of prejudgment.
At line 44 on page 21 the Tribunal says:
MS MOJSIN: I’m still fascinated by you living in Montenegro and not leaving your house and nobody in the village five kilometres away knowing that you were there. That bothers me.
I agree with Mr Ower that the use of the word “fascination” is quite inappropriate. He says that it is sarcastic. “Patronising” and “subjective” would perhaps be better descriptions of it. The issue could be squarely put to the applicant sister without this unnecessary tincture of high-handedness. What then follows are a series of questions as to the temperatures in Montenegro in summer. There is a suggestion of sportiveness about the conduct of the Tribunal at this point. Certainly the proposition – that it was too hot to remain indoors in Montenegro for the period the applicant sister claims she did – could have been more plainly put. That is no doubt why Ms McGrath seeks to intervene again at line 11 at page 23:
MS McGRATH: ---- be involved in the hearing but I was going to ask the tribunal to perhaps put to Ms M the aspects of that claim that you find implausible. Is it because of the weather or is there another issue that you have with that?
MS MOJSIN: I’ll get to that.
MS McGRATH: Thank you.
At the end of this exercise there has been no proper exploration of the issues because it was not properly put to the applicant sister. The best attempt was at line 40 on page 22:
MS MOJSIN: That’s right, so I have difficulty with you telling me that you stayed in that house all of that period of time.
But it is wrapped up in that suggestive statement again about the Tribunal’s difficulties.
The cross-examination technique of the Tribunal does not improve on page 24. The applicant sister is asked again why she did not enter Montenegro at a properly authorised border crossing. It turns out that she could not have done so because the border was closed at the relevant times. Again, Ms McGrath quite properly complains of the indirectness of this approach (see page 25). Unsurprisingly her intervention elicited this response:
MS MOJSIN: I’m having difficulty with that aspect of the claim.
These topics – the unusual nature of the stay in Montenegro, the irregular border crossings – are obviously legitimate topics for exploration by the Tribunal. But it is the way in which the Tribunal explores the issue, half mocking at times, disingenuous at other times, that causes unease. Is it a display that carries us into the realms of apprehended bias? After some reflection I think not. It jars when listened to, even more so when read, because it is an inappropriate way to approach the task. It could have been done in a much better and simpler way. But yet I do not think it carries us into prejudgment territory. The applicant sister is given opportunities to speak and is apparently listened to. There is engagement on the issues at some level. In the end, it is a matter of impression. I do not think, whatever the level of concern a fair-minded lay person at the back of the hearing room may have, he or she would be thinking that prejudgment is evident at this point.
The topic of the alleged rape arises on page 26. The Tribunal member indicates a lack of familiarity with the material presented by the applicant sister, by referring to it as an “attempted rape” by the fiancé. The allegation is of rape. This error aggravates the sense of insensitivity arising from the sudden introduction of the topic. The strangely blunt way in which the Tribunal is dealing with the issue only gets worse when this question is asked at page 27
MS MOJSIN: Why did your fiancé rape you?
That is a very peculiar inquiry. Fortunately, the Tribunal then allows the applicant sister to give a lengthy response in which she outlines her difficulties in raising this issue. Those responses having been given, the Tribunal then appears to turn away from the topic abruptly to the question of the applicant sister’s current living circumstances in Melbourne.
This is all very unfortunate. It will be remembered that this is the third Refugee Review Tribunal hearing which these applicants have participated in. The rape has not been raised by the applicant sister in either of the first two hearings. It was not raised with anyone at all until weeks before the final hearing, not even with the other applicants. This delay is a proper subject of probe and inquiry for the Tribunal. But we do not get that. Instead we have an apparently tactless and curious preliminary inquiry based upon an initial misunderstanding of the allegation (quickly corrected by the applicant sister’s adviser). Once again though, it is mitigated somewhat by the opportunity given to the applicant sister to express herself and the statutory declarations of the applicant sister and of Ms Smith are apparently read by the Tribunal before the determination is made. A further document, being a report from a psychiatrist provided after the hearing, was also read in relation to this topic. Ultimately the Tribunal finds (see CB at 774-775) that the applicant sister told the Asylum Seeker Resource Centre that she was raped but otherwise does not accept the allegations relating to the rape nor the explanations for the delay in raising the allegations.
The applicant sister’s counsel complains that the inquiries that then follow as to her financial circumstances and family business in Albania demonstrate an intention to paint the applicant sister as a liar and undermine her credibility. I do not read those questions in that way. They seem to me to be proper matters to raise at the hearing and there is nothing inappropriate about how these matters are raised.
At this point I should note the general complaint that is made about the Tribunal’s demeanour throughout the hearing. Ms McGrath raised that issue in her letter. The complaint is that the Member was openly disinterested in the answers given by the applicant sister in particular and did not make eye contact with her. Certainly Ms McGrath raises this very issue with the Tribunal at one point of the hearing. The audio tapes, however, do not suggest non-engagement. The affect of the Member’s voice is engaged not detached. I accept Ms McGrath’s observations are a proper reflection of her concerns but even allowing for a demeanour that is disengaged or bored looking at points the whole of the material, the language, the mode of expression, what we know of the thought processes of the Tribunal – is not suggestive of the kind of “switching off” or refusal to listen which would take the matter into the realm of apprehended bias. False or pretended empathy with the claims of a person claiming refugee status is not expected of a Tribunal Member and Mr Ower did not suggest that it was. But I suspect that the Member in this instance could have avoided unnecessary misgivings arising about her attitude on the part of the applicant’s advisers if she had managed to inject a little more courtesy into her exchanges with the applicant sister and her adviser.
At page 35 the Tribunal asks this question:
MS MOJSIN: Do you have a friend from Velipoje who’s recently been before the tribunal? Do you have a friend who’s from Velipoje who’s recently had an application before this tribunal?
This exchange with Ms McGrath not unexpectedly follows:
MS McGRATH: If the Tribunal is suggesting that Ms M is replicating ---
MS MOJSIN: I’m not, adviser. Can I ask the questions?
MS McGRATH: Of course. I’m just ---
MS MOJSIN: You will be able to make submissions later on but I’m testing all the information.
MS McGRATH: I certainly accept that. My suggestion was that Ms M be given the opportunity to comment. So, if you have a concern that somehow her claims are similar to claims that have been made by another applicant ---
MS MOJSIN: I’m just asking.
MS McGRATH: Okay.
MS MOJSIN: I’m just asking.
We are never told by the Tribunal what the purpose of this questioning was. It is left a mystery. The Tribunal has been engaged once again in a cross-questioning of the applicant sister in a way that has simply failed to squarely put an issue to her. This does not inspire confidence in the materiality of the Tribunal’s deliberations. What could have been thinking at this point, our fair-minded lay observer must be thinking? Is there a genuine attempt to grapple with the issues going on here or an ostensible or proxy hearing being conducted whilst the ultimate disposition of the dispute has already been decided upon? These are reasonable questions that arise for consideration at this point if our bystander knew that the judgement contained no reference to this topic. Whatever the topic was, I think our objective observer is able to draw upon his knowledge of the final decision so as to properly understand the questions and answers put during the course of the hearing. The apprehended bias issue surely extends to the determination itself, not just the hearing leading to it.
I must confess that it is this passage that concerns me the most. Asking questions apparently unrelated to the evidence given, which questions remain unexplained at the conclusion of the hearing, is a curious way of undertaking the serious responsibilities of the Refugee Review Tribunal. Again, fortunately, an opportunity is given through appropriate questioning later on for information to be elicited in relation to the fiancé and his conduct. Again, there is uncertainty as to the date of the alleged rape (page 40). The Tribunal says at line 30-31:
MS MOJSIN: I’m sorry, I’m not very certain with my dates. It hits my desk two minutes before I come down.
This must be a reference to the further witness statement just provided that day. Some effort is made at pages 41-42 to fix the chronology appropriately.
The brother is introduced at page 43. Shortly after this, the Member asks the applicant sister to sit at the rear of the room. This is referred to in the reasons (CB 742).
Mr Ower says the Tribunal’s inappropriate handling of this issue or its over reaction to it is something that assists significantly in grounding the apprehension of bias. I disagree. I agree with Mr Telfer, for the Minister, who says that the audio tapes make clear the kind of sotto voce communication going on at this point of the hearing. The applicant sister actually says at page 44 line 41:
Yes, all right, sorry about.
This is not to suggest something sinister was going on. But the occasion represents, it seems to me, a reasonably common-place incident in the regulation of these hearings by the Member. Exchanges between those who have given evidence and those who are about to give evidence should be avoided. The Tribunal was entitled to say what it did, even if it should perhaps have expressed itself a little differently so as to not bluntly suggest an improper purpose for the communication between the sister and the brother.
Mr Ower complains about the Tribunal’s non-acceptance of the applicant brother’s evidence as to why he used a legal crossing into Montenegro on one occasion but not on others. He says that the Tribunal did not acknowledge the answer that the brother in fact gave. However I do not know that the brother’s answer was very helpful in clearing up the matter in any event. The explanation was that the crossing was intended to be the last one and recognition of the family at that point would not have mattered. It is not clear why there would not have been a risk of identification and detention on the last as distinct from any other crossing made by him. The Tribunal was entitled to continue to say it did not understand the answer. Perhaps it would be more accurate to say that it did not accept the answer but the topic does not raise imputed or apprehended bias issues (see page 49 of the transcript lines 36-42).
I have considered the other complaints raised by the applicants relating to the balance of the hearing.
I agree that it is plain that the Tribunal had not read all of the material placed on the file by the applicants, and that one at least of the two earlier Refugee Review Tribunal files had not been made available to the Tribunal at that point. That suggests the contention at the start of the hearing (page 17) that the Tribunal had read the applicants “numerous files” was not entirely accurate. But the material has been read by the time that the decision is made. Much material was filed close to the oral hearing.
I also agree that the Tribunal mistakenly considers that it has to produce Reasons within 90 days. In fact the new s.414A of the Act did not come into operation until after the Reasons were provided.
The Tribunal was clearly not familiar, too, with the land claim deal aspect of the claims of the applicants. This was a matter raised at earlier Tribunal hearings. The questioning of the applicant brother reveals some confusion as to the claim relating to the corruption of officials in Albania in dealing with this issue. The exchange that Ms McGrath says that she had with the Tribunal about this topic is not in the transcript. Perhaps it was lost in the tape changeover noted at page 57 of the transcript.
The last portions of the tape are constituted mainly of lengthy and emotive repetition by the applicant sister of her perceptions of her predicament and appeals to the Tribunal to accept her truthfulness. They are mostly heard in silence. The Tribunal reminds her on a number of occasions that the brother will have to be sent from the room if the rape topic, which is alluded to, is to be the subject of further submissions.
The Tribunal does not accept Ms McGrath’s invitation (at page 60) to put to the applicant those issues that concern the Tribunal in relation to the claims. She in fact asks for an indication as to whether the Kanun claim relating to the blood feud is accepted. The Tribunal, as it was entitled to do, reserves its position in the light of the material that is still unread.
The decision itself comprised a total rejection of the various claims of the applicants including their account of their entry and stay in Montenegro and of the rape.
I have taken the opportunity to carefully, I hope, describe the constituent parts of the hearing of the claims said to indicate imputed bias. I have noted specific areas of concern, particularly questioning on topics never referred to again during the hearing or in the Reasons. They cause some discomforture as I have noted. Had the conduct described herein occurred in the context of curial proceedings the departure from expected standards associated with the questioning of witnesses and the peremptoriness of the way in which inquiries are made of counsel and the applicants, for instance, and the way in which inquiries by counsel are dispatched would have suggested to our lay-observer that some prejudgment of the issues for determination might possibly account for these unusual features. But I remind myself of what has been said by the High Court and the Full Court of the Federal Court as to the peculiar features of the decision making that is undertaken in Tribunals such as the Refugee Review Tribunal. Necessarily, the facts and the witnesses and the evidence have to be marshalled by the decision maker who both manages the hearing and deliberates as to its outcome. The hearing is often as here upon facts given in oral evidence and set forth in statutory declarations in other documents. The Tribunal is entitled to inquire into areas thought to be relevant and to question, even question in a robust way, the applicants as to areas of their accounts which cause concern. There is no contradictor to do the job of cross questioning on behalf of the Court. The decision-maker must sometimes find himself or herself participating in exchanges which can become somewhat querulous or heated. Sometimes the language adopted in such exchanges is infelicitous. Here, the Tribunal indulged in somewhat curious episodes of cross examination which did not always result in an issue being put squarely to one or other of the applicants for their response to be given. Some allowance must be made for the fact that the Tribunal’s business is inevitably conducted in a way more likely than curial proceedings to give rise to departures from ideal standards of courtesy and clarity.
I have stood back and reflected upon the totality of the hearing as it is revealed in aural and written form to do my best to see it through the eyes of our fair-minded lay observer. Bearing in mind the Tribunal’s responsibilities and obligations as set out in Part 7 of the Act, and the nature of the hearings it conducts, I am unable to find that the conduct of the Tribunal in this instance gives rise to the possibility of apprehended bias.
That is the only ground of jurisdictional error alleged.
The Application will be dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 7 May 2007
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