SZAIX v Minister for Immigration
[2005] FMCA 172
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAIX v MINISTER FOR IMMIGRATION | [2005] FMCA 172 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reasonable apprehension of bias demonstrated by Tribunal member – application dismissed. |
Migration Act 1958 (Cth), s.91X, 427(6)(a), 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 385
S233 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2004] FMCA 396
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte AB (2000) 177 ALR 225
| Applicant: | SZAIX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2614 of 2004 |
| Delivered on: | 9 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr D A Sisinni |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2614 of 2004
| SZAIX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 June 2004 and handed down on 27 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 14 February 2003 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZAIX”.
The applicant is a citizen of Indonesia who arrived in Australia on 30 July 2001 and applied for a protection visa on 6 February 2003. That application was refused by the delegate and on 4 April 2003 the Tribunal affirmed the delegate’s decision. The Tribunal’s decision was set aside by this Court on 15 March 2004 and the matter was re-considered by the Tribunal. On 27 July 2004 the Tribunal handed down a second decision, again affirming the decision of the delegate. This is the decision presently under review.
The applicant was born in August 1972 in Jakarta, Indonesia and is ethnically Chinese and is a Christian. She stated she completed twelve years of education in Indonesia and was most recently employed as a hair dresser. The applicant was widowed on 13 January 2001 (some six months prior to her arrival in Australia). She claimed she visited Australia for a holiday in 1993 (although according to Departmental records she arrived in Australia in October 1992), staying with an aunt and uncle in Sydney. In 1994 the applicant was taken into detention by the Department because her visa had expired. The applicant’s Indonesian passport was renewed on 18 April 2001 in Jakarta, after which she returned to Australia on a visitor’s visa. The applicant listed a number of close relatives as living in Indonesia including her two children, her parents and her two brothers and two sisters.
The applicant claimed to fear persecution on the grounds of race, religion and membership of a particular social group. She claimed her fears arose from two sexual assaults committed against her in 2001. The applicant claimed she left Indonesia approximately one month after being sexually assaulted by a Muslim man (the assault would thus have occurred in approximately June 2001). She stated she feared being sexually assaulted by Muslim men and particularly feared the same Muslim man would assault her again. The applicant claimed she thought that this would reoccur because it had happened to her previously. She also stated that her father and brother had reported the assault to the police but that the authorities took no action. The applicant claimed the Indonesian authorities were not interested in her protection.
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)The initial application for a protection visa was lodged with the Department on 7 February 2003.
b)The application was rejected by the delegate on 14 February 2003.
c)
The applicant sought a review of the delegate’s decision on
20 February 2003.
d)On 4 April 2003 the Tribunal, constituted by Ms Philippa McIntosh, made a decision to affirm the delegate’s decision to refuse to grant a protection visa (“the Tribunal decision No. 1”).
e)
The applicant lodged an application for review with the Federal Magistrates Court of Australia on 10 April 2003. The matter was heard on 20 February 2004 and judgment was delivered on
15 March 2004. Those proceedings were given the Federal Magistrates Court Proceeding No. SZ532 of 2003 and the applicant identified as SZAIX.
f)On 27 May 2004 this Court remitted the matter to the Tribunal declaring that the Tribunal’s decision of 3 February 2003 was void and of no effect. The Court ordered the matter to be referred to the Tribunal to consider and determine in accordance with law.
g)On 30 June 2004 the Tribunal, constituted by Shahyar Roushan, affirmed the delegate’s decision to refuse to grant a protection visa (“the Tribunal decision No. 2”).
h)On 23 August 2004 the applicant filed an application in the Federal Magistrates Court of Australia seeking a review of the Tribunal decision 2. Those proceedings were given the Federal Magistrates Court Proceeding No. SYG2614 of 2004.
i)At a directions hearing on 10 September 2004 before me, orders were made by consent, requiring the applicant to file and serve an amended application giving full particulars of each ground of review to be relied upon by 19 November 2004.
The Tribunal’s findings and reasons
The Tribunal decision No. 2 found that the applicant claimed to fear persecution on the grounds of race, religion and membership of a particular social group. Her fears arose from two sexual assaults committed against her in 2001. The Tribunal accepted that these assaults had occurred (CB p.174). However, the Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention for the following reasons:
a)Firstly, the Tribunal did not accept that the attacks which the applicant had experienced had occurred or that any future harm she feared from her attacker would occur for a Convention reason. As to the Convention grounds of race and religion, the Tribunal considered and rejected the applicant’s claims that her attacker had subjected her to racial and religious insults. Based on the evidence before it, the Tribunal was not satisfied that the applicant was “sexually assaulted essentially and significantly for the reason of her ethnicity, religion or both” (CB pp.174-175).
As to the ground of membership of a particular social group, the suggested group was “women in Indonesia”. The Tribunal referred to a recent High Court authority and to country information and concluded that “women in Indonesia” did not constitute a “particular social group” in the relevant sense (CB pp.175-176). The Tribunal was prepared to accept that “ethnic Chinese women” would constitute a particular social group, but did not think the applicant had been attacked because of her membership to such a group. Referring to country information, the Tribunal concluded that sexual assault in Indonesia was opportunistic and criminal in nature, and not directed at harming or persecuting Chinese women (or women generally) (CB pp.176-177).
Further, the future harm which the applicant claimed to fear appeared to be confined to retaliation by her former attacker as a result of reports made to the police. Thus, the actual sources of her “well-founded fear” were personal and not related to any Convention reason (CB p.177).
b)Secondly, the Tribunal claimed that a reasonable level of protection was available from the authorities in Indonesia. The applicant claimed that her assailant was a police officer but the Tribunal did not accept this claim (CB pp.178-179). Having regard to country information, the Tribunal concluded that the authorities in Indonesia provided a reasonable level of protection to its citizens (including Christians, Chinese people and women) from harm “regardless of the position of the perpetrators” (CB p.179). That protection did not provide a guarantee of freedom from harm, but the Convention does not require such a guarantee.
c)Thirdly, the Tribunal considered the applicant’s fear of harm to be localised in nature. She feared harm from one individual who, in the Tribunal’s view, would not be able to pursue her throughout Indonesia. Further, in view of the applicant’s age and skills, the Tribunal considered that it was reasonable to expect her to relocate within Indonesia. Thus, even if the applicant had a well-founded fear of persecution for a Convention reason in Jakarta, it did not follow that she came within the Convention definition of a refugee (CB pp.179-180).
Application for review of the Tribunal’s decision
On 14 December 2004 the applicant filed an amended application for review under s.39B of the Judiciary Act 1903 setting out the following ground:
“1.The Tribunal displayed animosity towards the applicant’s advisers during the hearing thereby giving the impression that the Tribunal had prejudged the application before all the evidence had been heard and that the Tribunal was predisposed to giving the applicant an unfavourable decision.”
It is noted that the applicant at the second Tribunal hearing was assisted by an adviser and by a friend.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Mr D A Sisinni, Solicitor, appearing for the applicant, applied for the affidavit of Renee Quinn sworn on 13 January 2005 and filed on
18 January 2005 (the affidavit of Ms Quinn) to be admitted into evidence. Attached to the affidavit was a transcript of the oral hearing before the Tribunal (the second hearing) on 30 June 2004 (“the transcript”).
Mr Sisinni filed written submissions on 28 January 2005 which contained the following contentions:
a)The applicant in her application filed on 14 December 2004 said that the Tribunal, as constituted by Mr S Roushan (“the member”), had exhibited such animosity towards her adviser during the hearing of her then application on 3 June 2004 that any reasonable and disinterested person observing the proceedings would have formed the view that the member would arrive at a decision unfavourable to the applicant. In other words, the applicant alleges that by his words and actions the member had given rise to a reasonable apprehension of bias.
b)In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs at [43]-[48] the Court set out various propositions regarding the bona fides of a decision maker, as follows:
i)an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker;
ii)the allegation is not to be lightly made and must be clearly alleged and proved;
iii)there are many ways in which bad faith may occur and it is not possible to give a comprehensive definition;
iv)the presence or absence of honesty will often be crucial;
v)the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rear and extreme, especially where all that the applicant relies upon is the written reasons for the decision under review;
vi)mere error or irrationality does not itself demonstrate lack of good faith;
vii)errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness;
viii)the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; and
ix)it is not necessary to show that the decision maker knew the decision was wrong.
The above exposition of principles was set out in NAJO v Minister for Immigration & Multicultural & Indigenous Affairs (“NAJO”) per Raphael FM at [10].
c)In NAJO, the applicant alleged that strong language, scepticism and impatience shown by the presiding Tribunal Member in that matter were sufficiently strong enough to sustain a claim of bias. The Court disagreed, notwithstanding that it did not approve entirely of the member’s conduct of the proceedings.
d)In S233 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (“S233 of 2002”), the Court dealt with a far more egregious example of a Tribunal member’s conduct. In that case the member clashed often with the applicant and interjected regularly in an abrasive and rude manner. Scarlett FM said at [71]:
“What is an applicant to do with something like that? To my mind it verges on rude and if 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 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.”
e)It is the applicant’s contention that the member’s behaviour was sufficiently rude and discourteous as to have his decision set aside. The applicant points to the following:
i)On page 5 of the transcript, the member dismissively indirectly chides the applicant for forgetting her passport.
ii)On page 10 of the transcript, the member clashes with the applicant’s adviser regarding some allegedly conflicting dates given by the applicant in her evidence. When the adviser states that he wants to complain about the way in which the hearing is being conducted the member tells the adviser to remain silent and make his objections known at the end of the hearing. He repeats this on page 17.
iii)On page 13 of the transcript, the member says to the applicant’s friend:
“If you’re not happy with that and you can come back and give evidence, you’re welcome to do so. If you don’t think you can actually sit there without interrupting you can leave the room. Okay?”
iv)On page 15 of the transcript, the member questions the adviser’s experience before the Tribunal. At the bottom of the same page the member threatens the adviser with expulsion from the room for alleged interruption with the member’s questioning of the applicant. The threat is repeated on page 16.
v)On page 17 of the transcript, the member says to the adviser:
“… let’s have a break and you can think about the manner in which you’re actually not assisting the applicant …”
It is the applicant’s submission that her adviser was conducting his client’s case properly and without unnecessary interruption, and that for the member to react so openly in an aggressive and hostile manner bespeaks malice and an appearance of having already determined to make an adverse finding. A reasonable person observing the proceedings would readily come to the conclusion that in view of the obvious and expressed hostility shown to the applicant and her adviser could not possibly have received a fair hearing and that the member had before the evidence was completely decided against her. In those circumstances, the matter should be remitted to a differently constituted Tribunal for hearing.
Respondent’s submissions
Mr G Kennett of Counsel, appearing for the respondent, filed written submissions on 7 December 2004. In the amended application filed in Court on 14 December 2004, the applicant relied on a single ground of apprehended bias. This ground was addressed in the respondent’s further written submissions of 4 February 2005 and contained the following contentions:
a)Discussing the application of that ground of review to the Tribunal, the High Court observed in Re Refugee Review Tribunal; Ex parte H (“Ex parte H”) per Gleeson CJ, Gaudron and Gummow JJ at [27]-[30]:
“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 decided. 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.
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 …
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.
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.” (Citations omitted)
b)In respect of the issues raised in the applicant’s submissions and noted at paragraph 12(e) above, the applicant relied on five aspects of the transcript:
i)As noted in paragraph 12(e)(i) above, in respect of the applicant’s passport (p.5 of the transcript), it should be noted that this was the only asserted instance of hostility towards the applicant herself. It should also be noted that, in contrast to the cases cited by the applicant (and in contrast to Ex parte H), there was no suggestion of the Tribunal member having disparaged the applicant’s evidence or intimidated her while she told it. Rather, at a preliminary stage of the hearing and before any exploration of the applicant’s circumstances had begun, the Tribunal member asked whether the applicant had brought her passport with her. The member may be taken to have expressed some irritation that the passport had been forgotten, despite written instructions to bring it (CB pp.118, 120).
ii)As noted in paragraph 12(e)(ii)(iv) and (v) above, in respect of “clashes” with the applicant’s adviser (pp.10, 15, 17 of the transcript), it was submitted that whether the applicant’s adviser was “conducting his case properly” was not a matter which this Court needs to determine. What was clear was that the Tribunal member considered the adviser’s conduct to be inimical to his client’s interests, and criticised the adviser on that account. A fair minded lay observer would have noted some friction between the Tribunal member and the adviser, but would also have noted that the Tribunal member was careful to avoid this having an impact on his questioning of the applicant. As noted above, there was no suggestion of any disparagement of the applicant’s evidence or rudeness towards her. A fair minded observer would also have noted that, before and after the tense exchanges referred to above, questioning of the applicant proceeded in an orderly and cordial manner. There was no basis for an apprehension that these exchanges were either a cause or a symptom of any prejudice or animosity towards the applicant.
It should also be noted that what the Tribunal member was seeking to do (i.e. to question the applicant without interruption, allowing her adviser an opportunity then to make submissions about any issues of concern), was appropriate and consistent with the inquisitorial nature of the Tribunal: Ex parte H at [28]-[30]; s.427(6)(a) of the Act. Towards the end of the hearing the Tribunal member gave the adviser an open-ended invitation to speak (p.8 of the transcript). As suggested in Ex parte H, if the hypothetical observer is assumed to have an understanding of the nature and statutory context of the Tribunal’s task, it becomes even more difficult to imagine these exchanges leading to an apprehension of bias.
iii)As noted in paragraph 12(e)(iii) above, in respect of the Tribunal member’s exchanges with the applicant’s friend (p.13 of the transcript), this was merely another instance of the Tribunal member seeking to question the applicant, so as to form a view about her credibility without interruption from others. There was nothing intemperate about the Tribunal member’s language, and no suggestion of any prejudice or animosity towards the applicant or her claims. It will also be noted that later in the hearing the Tribunal member acceded to a request by the applicant’s friend that he be allowed to answer certain questions on the applicant’s behalf.
c)As Kenny J noted in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (a case where the Tribunal member clearly had been discourteous to both the applicant and his adviser), it was stated at [44]:
“Being querulous, peevish or even rude would not, on its own, however, make out a case of disqualifying bias.”
And later at [81]:
“Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator.
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.” (Citations omitted)
d)The matters to which the applicant referred are, at most, examples of “momentary outbursts” of the kind which occur in “the often stressful world of adjudication”. They are not instances of a member being “sarcastic, mocking or rude”, let alone conduct giving rise to a reasonable apprehension of bias: VFAB.
Reasons
I was invited by both Counsel to read the transcript in its entirety before considering the respective submissions. This I have done in order to form a view as the general tenure and demeanour of the parties present. I completed this exercise before returning to the individual issues raised in the submissions which highlight the passages which it is alleged expose a reasonable apprehension of bias. The general impression formed after reading the whole of the transcript was that there were a number of clashes between the Tribunal member and the adviser and the applicant’s friend during the initial part of the hearing, and these persisted in the period of the commencement of the hearing at 12.50 p.m. until the brief adjournment at 1.30 p.m. When the Tribunal reconvened after the adjournment, there was a brief exchange between the Tribunal member and the adviser where the following was said:
“Hearing Resumed
The Tribunal: Now, Mr Adviser, are we clear about the conduct of this hearing?
Adviser:Well, I understand what you’ve said to me.
The Tribunal: Are we clear that I am requesting you not to interrupt the questioning of the tribunal and if you have any objections to note them down and raise them at the end so we can deal with it?
Adviser:I understand.” (p.17 of the transcript)
After this exchange, there appeared to be very little interruption by the adviser and the applicant’s friend other than an indication by the friend that he did wish to provide the Tribunal with some additional information that the applicant was unable to provide in response to the Tribunal member’s questioning. The applicant’s friend put these questions in a non confrontational form and this is seen after Question 118 where the applicant indicated to the Tribunal member that she was unable to answer this question because she did not know anything about politics. The applicant’s friend then asked the Tribunal member the following question:
“Friend:Could I answer that on her behalf?” (p.35 of the transcript)
When that sequence of questions was completed, the Tribunal member had the applicant’s friend sworn in as a witness so he could answer questions on behalf of the applicant.
The Tribunal member questioned the applicant’s friend on his knowledge of Indonesia and in particular the situation of the Chinese / Christian members of the population in Jakarta. The applicant’s friend also provided some background in respect of the family structure of the applicant in both Jakarta and those family members who had settled in the eastern suburbs of Sydney. After the adjournment at 1.30 p.m. there does not appear to be any clashes between the Tribunal member and the adviser and the applicant’s friend. Although the tone of the voice of the Tribunal member is not apparent from the transcript, it would appear that the conduct of the hearing from the recommencement after the adjournment at 1.30 p.m. was amicable and without any exchange in the form of a dispute between the adviser and the applicant’s friend and the Tribunal member. In respect of each group of questions, the Tribunal member explained to the applicant the purpose of the line of questioning and why the subject matter had been raised with the application. Then each individual question was clearly expressed and the applicant was given the opportunity to respond.
Taking the transcript as a whole and applying the test as noted by Kenny J in VFAB, the reaction of the Tribunal member could be placed no higher than “an occasional display of impatience or irritation”. In respect of the reference by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte AB at 230, and in considering the transcript as a whole, it could not be said that the Tribunal member demonstrated “sustained ill temper”. Moreover, if the exchanges between the Tribunal member and the adviser and the applicant’s friend could be characterised as “outbursts”, they could not be said to have been more than momentary. The exchanges only occurred in the early part of the hearing when the Tribunal member was endeavouring to establish the protocol in which he was going to conduct the hearing. Adequate explanation was given in respect of the procedures that were going to be followed and what should be done by the adviser if he wished to raise issues that arose from the content of the questions directed to the applicant. The nature of the language used by the Tribunal member was not “sarcastic, mocking or rude” nor is it evident that he failed to “act in conformity with proper standards”: VFAB. On a fair reading of the transcript as a whole the exchanges between the Tribunal member and the adviser occurred in the first fifty minutes of the hearing which is the period up the first adjournment at 1.30 p.m. The following hour and a half does not contain any exchange complained of by the applicant’s legal representation.
I turn to the five aspects identified by the applicant as being the basis for the Tribunal member’s a reasonable apprehension of bias. The first of these is the question raised by the Tribunal member as to whether the applicant had brought her passport to the hearing. The Tribunal forwarded the applicant two letters dated 29 April 2004 and 13 May 2005 (CB pp.118-121). The second letter related to a rescheduling of the Tribunal hearing. Contained within the body of the letter is a rectangular section which detailed the date, time and place of the hearing and two dots points which were headed “Important Information about your Hearing”. In the second of these dot points is the statement:
“If you have a passport you should bring it to the hearing.”
Both letters clearly contained that request and both letters were also forwarded to the applicant’s current adviser at that time. Again the tone of the Tribunal member was not evident from the typed transcript, however the exchange was brief in that after the initial question and a verifying question testing the applicant in respect of the explanation given, the matter was taken no further than a request for a certified copy of the passport be provided to the Tribunal on the following day. The matter was raised again later in the hearing by way of verification as to the most appropriate method of delivery of the certified copies and the final instruction given was that it would be accepted by registered mail provided that it was posted prior to the close of business on the following day and that the entire contents of the passport was supplied.
In the applicant’s submission the case of NAOJ was referred to in respect of the allegation that strong language, scepticism and impatience were sufficiently strong enough to sustain a case of bias. In the matter of S233 of 2002, the Tribunal member often clashed with the applicant and interjected regularly in an abrasive and rude manner. In a case quoted by the respondent, Ex parte H, the behaviour in that case is clearly distinguished from that of the current case. When the passport was requested by the Tribunal member the applicant simply responded that she forgot. This response was queried by the Tribunal member as the presentation of the passport was clearly important and the applicant had been notified by the correspondence from the Tribunal which highlighted the critical information in respect of the Tribunal hearing. When the applicant maintained the position that she had forgotten the passport, the Tribunal member issued an instruction in clear, non aggressive language, as evidenced by the transcript and that was the end of the matter.
In respect of the items raised in the applicant’s submission and set out above in paragraphs 12(e)(ii), (iv) and (v), (pp.10, 15, 17 of the transcript respectively), these are the alleged clashes between the Tribunal member and the applicant’s adviser. There can be no dispute that these exchanges took place however, none of the comments were addressed to the applicant and when the questioning of the applicant proceeded after these exchanges there was no evidence that the exchanges resulted in any adverse consequence to the structure or composition of the question to the applicant or the manner in which the question was addressed to the applicant. This can only be qualified to the extent that the written transcript may not reflect any voice characteristics of the Tribunal member that may indicate a different situation. I accept the respondent’s submission that a fair mind observer would have formed the view that the questioning of the applicant proceeded in an orderly and cordial manner. I also accept the submission that at the concluding stages of the hearing, the adviser was invited and provided with an opportunity to discuss issues with the Tribunal member and received an additional invitation to assist with the preparation of the written questions addressed to the applicant that required written answers within two weeks of the Tribunal’s hearing. The adviser apparently did not choose to re-ventilate the issues with the Tribunal member that were previously raised (pp.10, 15 and 17 of the transcript).
In respect of the issue raised in the applicant’s submission and noted at paragraph 12(e)(iii) above, there was no intemperate language used by the Tribunal member either in this exchange or any subsequent questioning of the applicant that could be construed as arising from this exchange with the adviser. The main thrust of the issues being discussed at this point in the hearing (p.13 of the transcript) are subsequently addressed near the end of the hearing, as the Tribunal member indicated they would be in the opening stages of the hearing when the adviser initially raised a point with the Tribunal member. The manner in which the Tribunal member addressed the adviser in this exchange and the manner in which the Tribunal member and adviser discussed issues at the end of the hearing, the argument that the Tribunal member behaved in a way that demonstrated bias cannot be sustained.
Conclusion
For the reasons set out above, the grounds pleaded by the applicant that the Tribunal member demonstrated a reasonable apprehension of bias cannot be sustained. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 9 March 2005
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