SZAXZ v Minister for Immigration
[2005] FMCA 3
•18 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAXZ v MINISTER FOR IMMIGRATION | [2005] FMCA 3 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in Syria – whether the RRT overlooked relevant considerations – whether there was any evidentiary basis for a finding made by the RRT concerning document fraud – whether the presiding member was biased. |
Federal Court Rules
Migration Act 1958 (Cth), ss.417, 474, 477
Craig v South Australia (1995) 184 CLR 163
Daniel v Minister for Immigration (2004) 205 ALR 198
Ferguson v Cole [2002] FCA 1411
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v WAFJ [2004] FCAFC 5
NAAH v Minister for Immigration [2002] FCAFC 354
NAHI v Minister for Immigration [2004] FCAFC 10
Re Minister for Immigration; ex parte Epeabaka (2001) 206 CLR 128
Re Refugee Review Tribunal; ex parte H [2001] HCA 28
S440 of 2002 v Minister for Immigration [2004] FCAFC 282
SZAKD v Minister for Immigration [2004] FMCA 78
Television Capricornia P/L v ABT (1986) 70 ALR 147
WAJS v Minister for Immigration [2004] FCAFC 139
| Applicant: | SZAXZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1325 of 2003 |
| Delivered on: | 18 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 28 October 2004 |
| Date last submissions received: | 21 December 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1325 of 2003
| SZAXZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 11 April 2002 and handed down on 7 May 2002. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Syria and made an application for a protection visa on the basis of asserted religious persecution. The applicant made his visa application on 16 February 2000. The delegate refused that application on 4 August 2000. The applicant applied to the RRT for review on 1 September 2000. On 14 February 2002 the RRT wrote to the applicant, providing him with country information it might take into account[1]. A hearing was conducted on 4 March 2002.
[1] court book, pages 76-95
The applicant claimed to be a Baptist Christian and a prominent member of the Baptist Youth Movement. He claimed that he had attempted to convert Muslims since 1995, and to have been investigated and detained on numerous occasions by the Syrian authorities. He claimed that religious material in his possession was discovered in 1999, and that he would be persecuted by the Syrian authorities if he returned[2].
[2] these claims are detailed in the court book at pages 132-141
The RRT found that the applicant’s claims were not credible. The presiding member referred to the implausibility of the applicant’s claims and to the applicant’s inability to satisfactorily explain those implausibilities, and the inconsistency of his claims with independent country information. The country information was discussed at the hearing[3].
[3] court book, page 140
The application for judicial review has been amended several times. The original application was filed on 14 July 2003. An amended application was filed on 11 September 2003. A further amended application was filed on 19 May 2004. The solicitor responsible for that application ceased to act for the applicant by notice filed on 14 October 2004. The solicitors for the respondent Minister filed a notice of objection to competency on 26 October 2004, in reliance upon s.477(1A) and s.474(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
I conducted a hearing on 28 October 2004. The applicant was represented by Mr Jackson on a direct brief. I gave leave for a second further amended application to be filed in court on that day.
I understood that to be the application upon which the applicant relied. That application asserted the following grounds:
Ground one
The respondent failed to exercise his jurisdiction, or was in want of jurisdiction, in drawing conclusions of fact in relation to integers of the applicant’s case, and;
those conclusions were not supported by logical grounds and/or were illogical.
Particular One
i)The RRT provided no logical basis for finding that the particular document, a “conscription” document [folio, pages 43 and 62] was “not authentic”, simply because there was evidence in the form of a DFAT cable that “there is a high level of document fraud in Syria”, and with reference to no other reason, particularly given that the applicant had provided a stamped original to the RRT after the hearing, in response to the RRT’s doubts as expressed at the hearing.
ii)The finding was critical to two integers of the case, namely the credibility of the applicant (the RRT stating, on page 24 of the decision[4], that “two of his documents were not authentic” [being the two copies of the conscription document] was a factor in relation to his credibility) and whether or not he was to be called up for military service where he would suffer further adverse attention.
[4] court book, page 152
Particular two
There was no logical basis for rejecting the applicant’s claims because his original application “contained claims which were vague, general and not sufficiently detailed to be believable” (see court book, pages 7 and 8 for the claims, and RRT decision, page 21[5]).
[5] court book, page 149
Ground two
The RRT failed to exercise its jurisdiction in failing to take into account a relevant consideration.
Particular
The RRT failed to consider its own finding that the applicant had departed Syria illegally in January 2000 after paying a bribe to airport officials, and consideration of that finding was critical to a finding as to whether the applicant was of interest to the authorities.
Ground three
The RRT conducted the hearing in such a manner that a fair-minded lay person, properly informed as to the nature of the proceedings and the matters in issue, would consider that the RRT was biased against the applicant, in the sense that their mind was closed to the issues raised by the applicant.
Particulars
The transcript, taken as a whole, leads to a reasonable apprehension that the RRT’s mind is made up, and is only interested in an empty exercise of “putting matters” to the applicant.
In particular;
The RRT refused to allow the applicant to tender a document which the applicant wished to tender in an attempt to answer the RRT’s request for “independent documentation” to support a statement in a Baptist Board of Alliance letter that the Baptist Convention was no longer registered in Syria (transcript at page 16.21).
The RRT regularly adopted a rude and belligerent approach (at transcript, pages 20.30, 21.3), “put” matters which the applicant could not possibly respond to (for instance, transcript, pages 15.2, 21.13, 21.24), and refused to allow the applicant to attempt to respond in a meaningful way (for instance at transcript, page 17).
The whole of the questioning of the witness, Peter Martin (transcript, pages 22.25-25.18).
The applicant had filed written submissions on 25 October 2004 in anticipation of the second further amended application being accepted. However, Mr Jackson presented a third further amended application together with written submissions after the hearing, on 22 November 2004. I have decided to accept that application. First, the third further amended application is a modified version of the second further amended application, of which the Minister had notice at the hearing. Secondly, the Minister has had an opportunity to prepare written submissions in response to the applicant’s written submissions, and the third further amended application. Accordingly, the grounds that the applicant finally relied upon are those set out in the third further amended application filed in my chambers on 22 November 2004, namely:
Ground one
The Tribunal failed to exercise its jurisdiction in failing to take into account a relevant consideration, in failing to take into account an integer of the Applicant’s case.
Particular one
The Tribunal failed to consider whether the Applicant was at risk of persecution because of a political opinion imputed to him as a prominent member of the Baptist Church in Syria.
Ground two
A fair-minded lay person, properly informed as to the nature of the proceedings and the matters in issue, who was present at the hearing and who read the Tribunal’s decision, would consider that the Tribunal was biased against the Applicant, in the sense that their mind was closed to the issues raised by the Applicant, and nothing the Applicant said at the hearing could have changed the view that the Tribunal had taken about the Applicant’s case.
Particulars
In particular;
(i)The Tribunal obtained particulars of all matters, including dates, which the Tribunal queried the Applicant over at the hearing (and had suggested were lacking in the original application), and received them without comment, yet gave the applicant no credit for them in its reasons for decision, instead returning to the theme which permeated the hearing, that the Applicant’s claims were “too vague and general” to be believable (for instance, court book, page 149.1, court book, page 152.).
(ii)The Tribunal refused to allow the Applicant to tender a document which the Applicant wished to tender in an attempt to answer the Tribunal’s request for “independent documentation” to support a statement in a Baptist Board of Alliance letter that the Baptist Convention was no longer registered in Syria (transcript (“tr.”) at p 16.21).
Ground three
There was no evidence to support the Tribunal’s finding that “there was a high level of document fraud” in Syria, and that finding was critical to the Tribunal’s decision.
Particular one
That there was no evidence can be inferred by necessary implication from the fact that the one document (at court book, page 183) which the Tribunal cites as the basis for such a finding (at court book, page 146.22 and following), does not, in fact, support the finding, being a response to a specific question about the likelihood that Syrian Kurds could depart Syria on false Iranian exit documents, being directed to that question, and referring to material provided to western diplomatic missions presumably in support of visa applications.
Particular two
There was no logical basis for rejecting the Applicant’s claims because his original application “contained claims which were vague, general and not sufficiently detailed to be believable” (see court book, pages 007 RD008 for the claims, and Tribunal decision, page 21).
The evidence
At the hearing the applicant relied upon an affidavit by himself filed on 27 October 2004. Mr Jackson also tendered, on behalf of the applicant, an Auscript transcript of the hearing before the RRT: exhibit A1. The applicant was cross-examined on his affidavit.
The applicant was shown exhibit R1 which was tendered by Mr Reilly on behalf of the Minister. This is referred to in the RRT decision in the court book, which I accepted as evidence for the purposes of the proceedings, at page 141. The applicant confirmed that this document was a call up notice which had been faxed to the RRT before the hearing before it. The applicant stated that he retains the original of this notice.
Mr Reilly asked the applicant about his assertion in his affidavit that he had received no response to an application to the then Minister that he exercise his powers under s.417 of the Migration Act. He confirmed that that was so. Mr Reilly showed the applicant a document which was later tendered: exhibit R2. This was correspondence between the then solicitors for the applicant and the Minister concerning the s.417 application. The correspondence includes a letter dated 4 October 2001 from the Minister’s Department to the then solicitor for the applicant relevantly stating that on 25 September 2002 the Minister decided not to consider exercising his power under s.417. The applicant stated that he became aware of this letter in September 2003. He said that he rang his solicitors three times about it. The applicant stated that he was not told of the letter by his solicitors until September 2003.
Mr Reilly asked the applicant about paragraph 6 of his affidavit in which the applicant deposes that he attempted to tender documents at the RRT hearing in order to show that the Syrian division of the Baptist Church had been deregistered. Mr Reilly also asked about paragraph 7 of the affidavit in which the applicant details the documents he says he attempted to tender. Mr Reilly took the applicant to page 16 of the transcript and the applicant confirmed its accuracy. The applicant confirmed that the exchange set out on page 16 of the transcript was the only point at which an attempt to tender documents was made.
Mr Reilly asked the applicant about paragraph 8 of his affidavit. He confirmed that in that paragraph he was referring to the facsimile forming exhibit R1. Mr Reilly took the applicant to page 22 of the transcript. Mr Reilly suggested to the applicant that the presiding member had said nothing about the call up notice being unstamped. The applicant pointed out that the presiding member had suggested that the document was not an authentic document and that the applicant had himself raised the issue of stamping.
Submissions
I received oral submissions from the representatives at the hearing. Mr Jackson submits that the evidence discloses that the RRT misunderstood its task. He submits that the presiding member erroneously described the application for a protection visa as vague and general and that the presiding member erred in demanding independent evidence of the applicant’s claims of deregistration of his church. He further submits that there was no evidence to support the conclusion reached by the presiding member on the authenticity of the applicant’s documents. He submits that I should not decline to grant relief because of the delay on the part of the applicant in bringing proceedings.
Mr Reilly pressed the respondent’s objection to competency. I indicated that in regard to that objection I would not enforce the time limit for such objections prescribed by order 54B of the Federal Court Rules. Mr Reilly submits that apart from the objection to competency, relief should be refused in the exercise of discretion. He noted that the delay in bringing proceedings was in excess of one year. He also submits that the making of an application under s.417 of the Migration Act should be taken to be acceptance of the legal validity of the RRT decision. Mr Reilly submits that the Court should not accept that the no evidence ground is an available ground of review. He submits that in any event, no jurisdictional error has been established, either in relation to a want of probative evidence, unreasonableness or apprehended bias.
Given the late filing of the second further amended application, I gave the parties the opportunity to file written submissions. Both parties took up that opportunity. Mr Jackson presented written submissions which were filed in my chambers on 22 November 2004. Mr Reilly filed further written submissions on 21 December 2004. I reserved the issue of costs, noting that Mr Jackson indicated that his client would not seek a costs order in respect of the hearing conducted on 28 October 2004, in view of the late raising of the grounds now relied upon.
Mr Jackson made the following written submissions:
The applicant’s [third] further amended application raises further grounds, does not include some grounds in the earlier application, and renumbers the old grounds. The applicant relies on the summary of facts and the characterisation of the reasoning of the RRT throughout the applicant’s submissions. The applicant no longer relies on “unreasonableness”.
Ground one: apprehended bias.
In relation to ground one, the applicant relies on his earlier submissions in relation to apprehension of bias in the conduct of the hearing. The applicant further points to the particulars in the amended application as providing further support for a reasonable apprehension of bias.
It is settled law that jurisdictional error will be established where there is a reasonable apprehension of bias on the part of the RRT, and it is submitted that the test suggested by the Court in Ex Parte H[6] (at paragraph 28, as cited in the applicant’s earlier written submissions) is the appropriate test.
[6] Re Refugee Review Tribunal; ex parte H [2001] HCA 28
There is no reason why, in an appropriate case, an apprehension of bias might not be fortified or supported by the reasons eventually given by the RRT. In other words, an apprehension might be confirmed by the reasons given.
That the reasons can be taken into account in determining whether or not there is a reasonable apprehension of bias is well-established, and a matter of common sense (see, for instance, the discussion in Ferguson v Cole [ [2002] FCA 1411], at paragraph 23-27, and the cases cited therein).
In this case, the reasons do strengthen an apprehension that the RRT held a view adverse to the applicant, and nothing that the applicant could say to the RRT could change the RRT’s view.
As the Court has observed, the RRT appears to have entered the hearing with a view about the “vague and general” nature of the applicant’s case, and despite having been provided with dates and details of incidents from the applicant, and particulars of persecution from his witness (who the RRT accepted was a former Syrian Baptist leader and refugee) still rejects the applicant’s case on the basis that his claims “are vague, general and not sufficiently detailed to be believable” (at court book, page 149.1 and court book, page 152.2), despite having received the details without comment at the hearing.
Moreover, the preparedness of the RRT to make a positive finding of fraud in relation to documents, on the basis of scant evidence provides yet further ground for apprehending that the RRT had its mind set against the applicant. There is no reason why such a finding, in the absence of evidence, could not lend support to the apprehension that the RRT was biased against the applicant.
The applicant relies on the particulars in relation to this ground, and says that the document, and its limited application, speaks for itself. It simply not possible to extract the broad and general finding of “a high-level of document fraud in Syria” which the RRT extracts.
It is not a case where “reasonable minds might differ” about what the document might signify, nor is it a case where it might admit of different conclusions. It does not provide any basis for the finding that the RRT makes.
It was suggested by the respondent at the hearing of this matter that there could have been material other than the document at court book, page 183, upon which the RRT relied. However, the inference, on the balance of probabilities, given that the RRT specifically cites this piece of material as the basis of its finding (at court book, page 146.22) is that there was not. This was the evidence before the RRT.
Ground two: no evidence.
Although “no evidence” is not specifically raised in the oft-cited passage from Craig v South Australia cataloguing some errors going to jurisdiction, there is no reason to exclude it, as it is a ground of longstanding.
The Full Court in WAJS v Minister for Immigration [2004] FCAFC 139 accepted that the “no evidence” ground went to jurisdiction (at paragraph 11), and paraphrased His Honour, Justice Wilcox (in Television Capricornia P/L v ABT (1986) 70 ALR 147 as suggesting it was limited to “cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact”.
Thus, if the particular fact for which there was no evidence was a fact upon which the decision was based, in whole or in part, then the decision will be vitiated by jurisdictional error.
The applicant proffered the “call-up” notices for two reasons. First, he stated that they evidenced his continuing interest to the authorities and supported his contention that his Church was no longer recognised by the authorities, because ordinarily, as a Deacon, he should be exempt from such service. Second, he stated that he would experience persecution when serving in the army, because of his Christianity.
Necessarily antecedent to findings on those material points was a finding as to the genuineness of those documents, and antecedent to that finding was a finding as to document fraud in Syria.
The RRT did not rely on anything that would evidence fraud in either the documents themselves (remembering, particularly, that the second document was obtained directly from the Department of the Interior, and thus was stamped and signed), nor did the RRT rely on any inconsistency between the document and the evidence of the applicant, nor other information before the RRT.
That is not surprising, because the second of the two “call-up” documents, which the applicant’s parents had obtained directly from the Minister of the Interior, was stamped and signed, and there was nothing in the applicant’s evidence or the country information which was inconsistent with what was evidenced by the call-up notice.
The cable upon which the RRT based its finding that the call-up notices were fraudulent could not support the finding. As it did not indicate “a high level of document fraud in Syria”, this finding was not open on the evidence, therefore the RRT’s decision was vitiated by jurisdictional error.
Conclusion
The decision should be quashed, and the matter remitted to the RRT. The applicant should have his costs. The applicant asks to be heard on costs, should the applicant succeed.
Mr Reilly made the following written submissions, which were filed in the registry on 21 December 2004:
These submissions address the applicant’s further submissions and further amended application.
The first ground is apprehended bias. The respondent repeats para 9 of the respondent’s submissions of 25 October 2004. The respondent agrees that the RRT’s decision may be taken into account in considering this ground: Re Minister for Immigration; ex parte Epeabaka (2001) 206 CLR 128 at [29], [74-78], and that the test for apprehended bias is that in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [28]. However there is no basis to suggest that a reasonable observer might conclude that the RRT had a closed mind from the matters relied upon by the applicant. The hearing reveals a firm but polite approach by the RRT, and that the RRT took pains to put a number of its concerns to the applicant for his comment cf S440 of 2002 v Minister for Immigration [2004] FCAFC 282 at [9]. This is consistent with its inquisitorial function and the need to ensure procedural fairness: Ex parte H at [30]. It can hardly be said that by complying with procedural fairness in this manner the RRT nevertheless risks being properly accused of apprehended bias. Nor is the fact that the RRT had concerns prior to the hearing, and expressed those concerns at the hearing any evidence of bias: Johnson v Johnson (2000) 201 CLR 488 at [13]; Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72], [186].
The particulars relied upon by the applicant in support of this ground essentially take issue with the RRT’s reasoning process. The difficulty with this approach is that is really an appeal for merits review in the guise of an apprehended bias claim, by inviting the Court to find error on the basis that the Court’s assessment of the merits of the applicant’s case differs from the RRT’s cf NAAH vMinister for Immigration [2002] FCAFC 354 at [27].
In terms of the specific particulars in the further amended application, the RRT was entitled to take in to account the lack of detail and dates in the original application, despite questioning the applicant about this at the hearing. This argument plainly seeks merits review. Nor is it fair to suggest that the applicant was prevented from tendering a document at p 16 of the transcript simply because the RRT asks that the applicant answer the question asked of him. The applicant (and his legal representatives) had every opportunity to put before the RRT whatever he wished, including at the request of the RRT at p 26 of the transcript. The RRT did not “ignore” the evidence of the applicant’s witness, but did not give it much weight for reasons it explains (court book, page 151.3). The RRT at court book, page 151.8 in stating that “there was no evidence that Baptists Christians have been mistreated in Syria, particularly over the past 12 months…” is clearly summarising country information before the RRT (see p 18.5 of the transcript), rather than “ignoring” the claims of the applicant’s witness. Finally the RRT was entitled to find some documents submitted by the applicant were fraudulent on the basis of country information concerning document fraud in Syria: court book, page 151.6. The choice and assessment of weight given to country information is a factual matter for the RRT: NAHI vMinister for Immigration [2004] FCAFC 10 at [13].
The oral hearing, the length of time that the RRT reserved (it could of course have given an immediate oral decision at the conclusion of the hearing; moreover it appears that the applicant was pressing the RRT for a decision as early as possible: court book, page 125), and its reasons all reflect a detailed and thorough consideration of the applicant’s claims. The fact that the applicant disagrees with those reasons, and invites the Court to also disagree, is no evidence of apprehended bias. If it were, the RRT’s decisions would be routinely overturned on this basis. The apprehended bias claim is not made out.
The second ground is that there was no evidence for the RRT’s statement at court book, page 151.5 that there was a high level of document fraud in Syria, relying upon the DFAT report fairly summarised at court book, page 146.6 and appearing in full at court book, pages 183-184. Contrary to the Applicant’s claims, it was open to the RRT to infer from a high level of document fraud detected at Damascus Airport that there is a high level of document fraud in Syria more generally. This is not an irrational conclusion, and the fact that others may not have come to the same conclusion from this evidence is not to the point.
Moreover it is not in general a jurisdictional error for the RRT to make a factual finding for which there is no evidence. For a no evidence ground to succeed the relevant fact for which there is said to be no evidence would need to be a jurisdictional fact: Minister for Immigration v SGLB (2004) 207 ALR 12 at [39]. To paraphrase SGLB, nothing in the Migration Act made the question of whether or not there was a high level of document fraud in Syria a precondition to the exercise of jurisdiction.
For both reasons the “no evidence” ground is not made out.
Finally the respondent repeats the submission previously made that even if the Court finds error it is appropriate to withhold relief for reason of the applicant’s delay: see para 10 of the respondent’s submissions of 25 October 2004. As pointed out at the hearing, the applicant’s explanation that he was seeking Ministerial intervention is not an adequate explanation for the delay eg Daniel vMinister for Immigration (2004) 205 ALR 198 (FCA/Goldberg J) at [14-15].
The respondent’s Notice of Objection to Competency should be upheld and the application dismissed with costs. If the applicant succeeds it would be appropriate to discount costs by 50% given the grounds now relied upon are a result of intervention by the Court on the day of hearing, and extra costs have been incurred as a result of the leave granted for a further amended application and submissions: eg SZAKD v Minister for Immigration [2004] FMCA 78 (Driver FM) at [15], [28].
Reasoning
The no evidence ground
The parties agree that a want of evidence supporting a jurisdictional factual finding constitutes jurisdictional error. The relevant factual finding by the RRT in this case was that there is a high level of document fraud in Syria. The presiding member said:
The Tribunal does not place much weight on the 27 April 1999 letter from the Baptist World Congress, the 5 May 2000 letter from the Baptist World Alliance, the 12 February 2002 letter from the Arabic Calvary Chapel, the 20 June 1004 letter from the Egyptian Embassy in Damascus, the 9 May 1995 letter from the Baptist World Alliance or the 15 may 1995 telefax from the Overseas Social Services because they are vague and general. With respect to the above-cited conscription documents (Tribunal folios 43 and 66), the Tribunal finds that these are not authentic documents and does not accept them. On the strength of the above-cited independent evidence, that there is a high level of document fraud in Syria, the Tribunal is not satisfied that these are authentic documents. The Tribunal accepts this independent evidence because it is independent, detailed and up to date.
it is not necessary to resolve this issue of whether the finding concerning the level of document fraud in Syria is a finding on a jurisdictional fact. That is because there was some evidence supporting the finding, with the result that this ground fails in any event. The evidence was that cited by the presiding member at page 18 of his decision[7]. The presiding member said:
[7] court book, page 146
Documentation fraud and exit from Syria
In December 2000 DFAT, responding to queries about Syrian Kurds, noted that there is a high level of document fraud detected by Western diplomatic missions at Damascus International Airport (Country Information Service 2000, Country Information Report No. 624/00 – Syrian Kurds (sourced from DFAT advice of 5 December 2000) 13 December).
I accept Mr Reilly’s submission that that statement is a fair summary of the country information that appears on pages 183-184 of the court book. That information showed that it was possible for persons leaving Syria to do so on false documents and that a high level of document fraud had been detected by Western diplomatic missions at Damascus International Airport. The country information was limited to false documents used by persons leaving Syria and it provided scant support for the presiding member’s finding that there exists a more general problem of document fraud in Syria. Nevertheless, I reject the proposition that the country information provides no support at all for the presiding member’s finding. If a “high level” of document fraud exists in respect of documents used for the purpose of departing Syria, it is conceivable that it may be relatively easy to fabricate other official documents in Syria. The presiding member’s finding involves something of a logical leap from the limited evidence, but the applicant no longer presses unreasonableness in support of his application, and I cannot review the merits of the RRT decision.
The presiding member’s finding remains relevant to the issue of bias.
Bias
The applicant does not assert that the presiding member was actually biased. He asserts apprehended bias. Apprehended bias, if proved, establishes procedural unfairness, which in turn establishes jurisdictional error: Minister for Immigration v WAFJ [2004] FCAFC 5 at [116].
I accept Mr Jackson’s submissions as to the appropriate test for apprehended bias. Mr Reilly, in effect, supports those submissions. However, Mr Reilly submits that apprehended bias is not proved by the matters raised by the applicant. I agree. The hearing transcript shows that the presiding member appropriately adopted an inquisitorial approach and was firm but fair in requiring clear answers to his questions. I had the advantage of myself observing the applicant in the witness box when he was cross-examined on his affidavit. He appeared very anxious, which might give the appearance of evasiveness. Because the applicant was concerned not to give a “wrong” answer, he was hard to pin down to clear answers to questions put to him. The presiding member was concerned to get clear answers to his questions. He was entitled to have them.
The only part of the hearing transcript that gives me cause for concern is the exchange on pages 16-17 concerning the asserted deregistration of the Syrian Baptist Church by the Syrian Government. The presiding member asked the applicant if he had any “independent” documentation to support the claim. The applicant offered the presiding member a booklet from the International Baptist Theological Seminary in Europe outlining the administrative hierarchy of the church. The presiding member declined to look at it and asked the applicant to answer the question. The applicant sought to explain that the booklet supported his claim that the Syrian church had been deregistered. The presiding member then said:
I’m sorry you’re not understanding my question. Listen to it very carefully. I want an answer. In the letter that we’re talking about it says: “Our understanding is that the Syrian government has withdrawn its registration of the Syrian Baptist Convention following the expulsion from Syria of Reverend Naroose.” My question is a simple one, I want a simple answer. Do you have any independent documentation to support that?
It is not clear what the presiding member meant by “independent” documentation. The applicant sought to explain that the Syrian government would not publicly declare that it had closed the church but that the Syrian government had expelled the president of the church, who was deported and changed his name. Mr Jackson showed me the church booklet that the applicant attempted to show the presiding member. There were in fact two booklets. The first showed the Syrian church as part of the Baptist convention. The second, later, booklet showed that there were then no office bearers of the church in Syria. The booklets, when read together, therefore provided, some support for the applicant’s claim. It is unfortunate that the presiding member apparently did not look at them. Also, unfortunately, once it was clear that the applicant had no other documentation to support his claim the presiding member cut him off and moved on to the next topic. In my view the presiding member misunderstood the significance of the documents the applicant wanted him to look at. However, that misunderstanding does not point to a reasonable apprehension of bias.
It is clear from the transcript, and from the reasons for the RRT’s decision, that the presiding member had serious doubts about the credibility of the applicant’s claims before the hearing. It was, of course, because of those doubts that the applicant was invited to a hearing. The presiding member put his doubts clearly to the applicant and gave him the opportunity to respond. The presiding member was probably wrong in characterising the applicant’s written claims in support of his visa application as “very vague, general and not sufficiently-detailed as to be believable”[8]. Those claims, reproduced on pages 7-8 of the court book, appear to me to be clear, specific and succinct. The claims were also supported by documents. Once again, however, I cannot review the merits of the RRT decision. On pages 6‑7 of the transcript the presiding member put his concern to the applicant. The applicant was initially nonplussed but then sought to allay the presiding member’s concerns by providing further details. It is apparent from the reasons for decision that the presiding member’s concerns were not allayed. However, it does not follow that a fair minded observer would conclude that the presiding member had a closed mind. Rather, a fair minded observer would probably conclude that the presiding member was merely mistaken.
[8] court book, page 149
The presiding member was dubious about the evidence of the applicant’s witness, Rev Narouz, who has apparently been expelled from Syria, has changed his name and has apparently been accepted as a refugee by the UNHCR. Initially, the presiding member doubted that the witness was who he said he was. Ultimately, he was persuaded as to the witness’ identity but “did not place much weight” on his evidence. The presiding member also “did not place much weight” on documents provided by the applicant from the Baptist church and the Egyptian embassy at Damascus, dismissing all of the above as “vague and general”.[9] The presiding member went on to say that this evidence was “at odds” with country information that Christians are a respected minority in Syria. Surprisingly, the presiding member said that “there is no evidence that Baptist Christians have been mistreated in Syria, particularly over the pas 12 months”. I can only assume that he meant that there was no evidence apart from the evidence from the church itself, including the former leader of the church in Syria, who has been deported from that country and accepted as a refugee. In my view, the presiding member’s conclusion that the chance of the applicant facing persecution in Syria was “remote” is highly debatable. The conclusion in my view points a mistaken, but not a closed, mind.
[9] court book, page 151
The presiding member rejected the conscription documents (exhibit R1) as false. The presiding member put his concern about the authenticity of the Arabic document to the applicant[10]. The applicant was given the opportunity to persuade the presiding member that the document was genuine. The presiding member’s use of the country information to find that the document was a fabrication was dubious, and he should have more specifically drawn to the applicant’s attention what the country information was. However, the presiding member’s use of the country information does not point to apprehended bias. The inadequate disclosure of the detail of the country information raises a concern in my mind whether the hearing was in that respect fair. However, apart from apprehended bias, procedural unfairness is not claimed by the applicant. The applicant is legally represented and his judicial review application has been amended four times. In the circumstances, it would be inappropriate for me to decide this case on a ground that has not been raised.
[10] transcript, page 22
The apprehended bias claim fails.
Failure to take account of a relevant consideration.
This ground was raised for the first time in the third further amended application, following a suggestion from me at the hearing. The parties’ written submissions are silent on this issue. On reflection, it is clear from a fair reading of the RRT’s reasons for decision that the RRT considered both the applicant’s claim of religious, and his claim of political, persecution. There is accordingly no substance to this ground.
Conclusion
No jurisdictional error is established on the basis of the third further amended application. The application must therefore be dismissed. In the circumstances it is unnecessary to consider whether, if jurisdictional error had been established, relief should be refused in the exercise of discretion.
As requested by Mr Jackson, I will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 January 2005
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