SZELD v Minister for Immigration - [2006] FMCA 74

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 74

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – matter remitted by the Federal Court of Australia to this Court for determination in accordance with the reasons recorded in SZELD v Minister for Immigration [2005] FCA 1246 per Gyles J.

Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B

SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1246
SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 663
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264

Applicant:

SZELD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2880 of 2004

Delivered on:

27 January 2006

Delivered at:

Sydney

Hearing date:

9 December 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondents

Ms L Clegg

Solicitors for the Respondents

Clayton Utz

ORDERS

The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2880 of 2004

SZELD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were remitted by the Federal Court of Australia to this Court for determination in accordance with the reasons recorded in SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1246 per Gyles J (the appeal judgment).
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 “SZELD”.
The nature of the original proceedings and the applicant’s background are set out in my earlier decision of SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 663 (31 May 2005).
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.

Appeal judgment

In the appeal judgment, Gyles J made the following findings:
a)The application to the Federal Magistrates Court included the following ground:
The way the Tribunal conducted investigation of this claim proves that this decision was premeditated. It also reflects the Tribunal was narrow minded and bias.
b)The reasons of the Federal Magistrate do not refer to this ground: [3].
c)A claim of actual or perceived bias requires an examination in some detail of the nature of the case presented, the course of the proceedings before the Tribunal and the reasons of the Tribunal. His Honour was of the view that the Court on appeal should not have to undertake this task: [5].
d)Certain aspects of the Tribunal’s decision require close consideration, namely (see at [7]):
i)the reference by the Tribunal member to questioning the applicant about a letter written by his migration agent in which he was advised that the application had little chance of success;
ii)the questioning of the applicant by the Tribunal as to why his application for a visa to the USA had been refused in 1999; and
iii)the Tribunal reference to the fact that the applicant did not repeat various claims to the Tribunal and referred to the meagre oral testimony which he provided.

The law

A statement of the law on bias and apprehension of bias are set out in the written submissions prepared on behalf of the respondents by Mr J Mitchell of Counsel. For the purpose of this judgment, in respect of actual bias, I adopt paragraphs 5.1-5.2 and, in respect of apprehension of bias, I adopt paragraphs 6.1-6.2:
[5.1]Actual bias can be said to exist where the RRT member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72]. Actual bias may be said to exist where the RRT member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [71] and [72].
[5.2]A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Jia at p.531. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the RRT member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36].
Further, a case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the RRT’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
[6.1]Apprehended bias will exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, would not apprehend that the RRT member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. Examples of such apprehended bias were:
(a)The applicant has been overborne or intimidated by the RRT: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [31].
(b)Fact finding of the RRT was conducted in a manner which was:
(i)substantially unreasoned;
(ii)in the nature of mere assertion that lacked rational or reasoned foundation;
(iii)at times plainly and ex facie wrong; and
(iv)selective of material going one way: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [115].
[6.2]A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
(a)Natural justice does not require the RRT member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the RRT member to be open to persuasion: Jia at [72] and [86].
(b)Apprehended bias, in the context of an administrative decision maker, is not attended with the strictures that apply in the case of judicial prejudgment: Jia at [179]-[187]; [244]-[245]; NADH at [19]. In NADH Allsop J (Moore and Tamberlin agreeing) described this difference as follows:
“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.”
(c)Where credibility is in issue, the RRT member will necessarily have to test the evidence presented – often vigorously: Ex parte H at [30]. The requirements of procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or which bring their account into question. Further, the decision maker’s assessment of the applicant’s credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Ex parte H at [34].
(d)Bias does not necessarily arise from illogical, irrational decision-making or inferences: Applicant S20/2002 at [52], [75], [99]-[101]. Further, a manifestly defective or illogical approach to the consideration of evidence, and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. But such an approach, without more, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].

Reasons

At the hearing, Ms L Clegg of Counsel, appearing for the respondents, tendered the affidavit of Andrea Marianne Christie-David (“the affidavit of Ms Christie-David”) sworn on 8 December 2005 which contained a transcript of the audio tape recording of the Tribunal hearing (File No: N04/48722) which was held on 16 June 2004 (“the hearing tape”). Ms Clegg sought to read and rely upon the affidavit.
The applicant filed written submissions dated 17 November 2005. These submissions raised ten issues which do not appear to be directly related to the issue for determination in accordance with the reasons recorded in the appeal judgment. The applicant was invited to address the Court with any oral submissions in support of his written submissions. The applicant declined the invitation and indicated he would rely upon the contents of his written submissions. I shall return to these issues after I have addressed the matters raised for determination in the appeal judgment.
Ms Clegg submitted that the first respondent now tenders the transcript of the hearing before the Tribunal on the basis that in the Federal Court his Honour Gyles J considered that there were grounds to consider the issue of bias and that his Honour mentioned in his reasons that aspects of the hearing should be analysed by the Court. It is the first respondent’s submission that the transcript neither assists nor harms the applicant’s case on the question of bias but simply illustrates to this Court what occurred at the Tribunal hearing. Ms Clegg submitted that his Honour Gyles J, in his decision on appeal, said he did not have a view about whether or not this was a case in which apprehended bias could be made out but simply that it should be considered by this Court. His Honour indicated three matters raised in the decision of the Tribunal which might give the Court reason to consider the question of bias or apprehension of bias in this case.
Ms Clegg also raised the issue that the submissions filed by the application for the purposes of this remittal hearing addressed matters going beyond the question of bias or apprehended bias. However, paras.(h)-(j) of the applicant’s written submissions, although they do not specifically address bias, on one view, might address matters which would go to the overall consideration of bias. There is a complaint in paras.(h) and (i) that the Tribunal was hasty in dismissing the applicant’s case and did not give sufficient time to the applicant to obtain documents from his country. In para.(j) there is a submission that the Tribunal did not consider the point raised by the applicant. Those matters could form part of a broad criticism of the Tribunal’s conduct in the matter and so may form part of the consideration in the overall question of bias and apprehended bias.
Ms Clegg indicated that the first respondent relied on the written submissions filed in these proceedings which were prepared by Mr Mitchell of Counsel. Those written submissions set out in detail the various steps and the most recent jurisprudence on what constitutes bias and apprehended bias. I have reproduced the relevant paragraph from Mr Mitchell’s submissions above at para.6 under the heading “The Law”.
Ms Clegg submitted that it is well established that a finding of actual bias by a Court is a serious matter and that a party who suggests actual bias has occurred has a very heavy onus. However, on the other hand, the test for apprehended bias is a little less onerous. That test posits a fair minded lay observer who is properly informed about the nature of the proceedings and the issue of consideration for the proceedings. The test is whether the fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question. Cases where apprehended bias have been found to exist include the case of Refugee Review Tribunal, Re; Ex parte H (“Ex parte H”) in the High Court and the case of NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs “NADH of 2001”) in the Full Court of the Federal Court. In NADH of 2001, their Honours note the difference between an inquisitorial Tribunal such as the case here and the decision making of Courts that administer public justice. The role of the Tribunal is to investigate the facts for itself, unaided by Counsel or parties assisting the case. It may want to test and probe a recounted history and it may require questioning and expression of doubt which, if undertaken by a judge in open Court, might give rise to an apprehension of lack of impartiality. It was submitted that those principles are very significant when considering the conduct of the Tribunal in this matter.
The first issue raised by his Honour Gyles J at [7] was:
“… reference by the Tribunal member to questioning the appellant about a letter written by his migration agent in which he had advised that the application had little chance of success.”
Reference is made to this issue in the Tribunal’s decision in the section “Claims and Evidence” (CB pp.69-70), and the Tribunal notes:
“The Tribunal asked the applicant whether he had filled in his primary visa application himself. The applicant initially said ‘Yes’, but then said he had provided the requisite information to his migration agent, who had written down the applicant’s answers and the applicant’s story as contained in his statutory declaration. He told the Tribunal that all the information contained in his primary visa application and his statutory declaration was correct. The Tribunal drew to the applicant’s attention that his migration agent had advised him that his primary visa application held little chance of success.” (Emphasis added)
In the transcript of the Tribunal hearing attached to the affidavit of Ms Christie-David and marked “A” the following questions and answers are recorded (pg 7):
Tribunal Member:         Now has your, did your agent explain to you, presumably he did, the definition of a refugee?
Applicant:Yes.
Tribunal Member:         And your agent made it clear to you that you had little chance of success in your application?
Applicant:He didn’t say like that.
Tribunal Member:         That’s what it says in his letter, I’ve got a letter in front of me 16^th of February … ‘During our consultation we made it very clear to him about little chance of success of his application, copy of his acknowledgement to this effect is enclosed’.
Applicant:He sent to me that letter, that letter was in English and I can’t speak English properly that’s my problem.
The Tribunal member’s reference to the letter before her, which is a letter from the migration agent explaining to the applicant that he had little chance of success, is contained in the Court Book at p.24 and for some unknown reason was submitted by the applicant in support of his application. It may be from the answer given by the applicant at the Tribunal hearing that the applicant was saying he could not understand what the letter said and that is why he sent it to the Tribunal or it may be that the applicant simply did not understand the advice that was given. In any case, what is clear from the transcript about that issue is the extent of discussion between the Tribunal member and the applicant demonstrates that, if one has regard to the reasons of the Tribunal at CB p.70, what the Tribunal is doing is simply recounting what happened at the hearing. Importantly, those matters were not part of the Tribunal’s final reasons in the matter but merely part of the claims and evidence before the Tribunal.
The second issue raised by his Honour Gyles J requiring closer consideration was:
“… it appears that the Tribunal asked the appellant why his application for a visa to the USA had been refused in 1999.”
This reference was also noted in the Tribunal’s decision under the heading “Claims and Evidence” as follows (CB p.70):
“The Tribunal asked the applicant why his application for a visa to the USA had been refused in 1999. The applicant said it had been refused because he had been ‘quite young’ at the time. The applicant told the Tribunal that his family (parents, grandmother and older brother) continued to live at the same address where the applicant had lived all his life until coming to Australia.”
The relevant line of questioning appears in the transcript as follows (pg.7):
Tribunal Member:         Now, I am just looking at your passport. Did you apply for a United States visa did you?
Applicant:Yes.
Tribunal Member:         And that was refused?
Applicant:That visa was refused because I was quite young at the time.
Tribunal Member:         What other countries have you been to apart from Australia?
Noted in the Tribunal’s reasons is this simple and accurate recitation of the evidence that was given by the applicant in relation to his passport and visa when attempting to gain entry to the United States. In the Court Book there is a copy of the first page of the applicant’s passport and then a copy of another page of the passport on which the customs stamp for Australia appears (CB pp.28-29). The Court Book does not contain nor does the Department have a copy of the remainder of the applicant’s passport on record. However, the transcript indicates the Tribunal member was having regard to the applicant’s passport and the fact that the passport alerted the Tribunal member to the fact that there was an application for a visa to enter the United States. The Tribunal became aware of that information by reviewing the contents of the applicant’s passport during the Tribunal hearing. The Tribunal member made little of that issue at the hearing, simply asking questions and then went on to another question about other countries where the applicant had spent some time. As with the issue of the migration agent, the transcript confirms the reason for the Tribunal’s “Claims and Evidence” recitation as to what had happened at the Tribunal hearing (CB p.70). Importantly, there is no reference in the “Findings and Reasons” of the Tribunal’s decision which indicates that anything was made of the Tribunal’s questioning of the applicant as to the issue of the refusal of the United States’ visa.

Ms Clegg submitted that, in relation to the first two matters, there was nothing in the conduct of the Tribunal hearing that would give rise to a claim of actual bias nor any apprehension on the part of a fair minded lay observer that there was a possibility of bias on the part of the Tribunal. All the Tribunal member did was simply recite what had happened at the hearing. I accept the submission that, although these matters were recited in the Tribunal’s decision, they were quite inconsequential in its reasoning.
The third issue on which his Honour Gyles J required closer consideration was:
“… the Tribunal referred to the fact that the appellant did not repeat various claims to the Tribunal and referred to the meagre oral testimony which he provided.”
In the transcript commencing there is some initial questioning of the application about the protection visa application as follows (pg 6.4):
Tribunal Member:         Now the only statement that I’ve got from you is that which you provided in your primary application. Now talking about your primary application did you fill this in yourself? Your primary application this pink form.
Applicant:Yes I filled it out myself.
Tribunal Member:         So you speak English?
Applicant:My adviser has filled it out.
Tribunal Member:         That’s what I just asked you.
Applicant:My advocate.
Tribunal Member:         Pardon?
Applicant:My advocate has filled it out.
Tribunal Member:         Well why when I asked you whether you filled it out did you say yes?
Applicant:I gave him the instructions and he filled out the form.
Tribunal Member:         Did he read you the answers back?
Applicant:Yes.
Tribunal Member:         So you understand what it is you signed and you understand and you can vouch that it’s all correct?
Applicant:But he did it actually on my behalf.
Tribunal Member:         Yes, but I asked you did he read it back to you and you said yes, and are the answers correct?
Applicant:Yes.
Tribunal Member:         And the statutory declaration that you provided this is a copy that I have is correct? Is that your story?
Applicant:Yes.
That section of the transcript actually depicts what the Tribunal said in its reasons about what had happened at the Tribunal hearing in relation to the applicant repeating his evidence and confirming that the evidence in the visa application was correct. In the Tribunal’s “Findings and Reasons” (CB p.71), the member made the following finding:
“Although the applicant claimed in his primary visa application that he had inadvertently become involved with a person suspected of being a Pakistani terrorist; he was arrested three times; tortured by the police on each occasion; brought to trial (which lasted three months); but released each time after the intervention of his family and ‘strong political pressure’, apart from claiming that he had been arrested three times in India, the applicant did not repeat any of these claims to the Tribunal. Moreover, the meagre oral testimony which the applicant provided at the hearing was unconvincing on every significant point, and I advised the applicant of this during the course of the hearing.”
Importantly, the applicant was given an opportunity to repeat those claims when the Tribunal asked the applicant the following questions during the hearing (pg 10.7):
Tribunal Member: I have to tell you that I find this whole story very unlikely, implausible. Would you like to comment on that? I don’t believe your story.
Applicant:But I am telling you the truth, that is what has happened to me in the past.
Tribunal Member: You stayed with a person for a couple of days, he turned out to be a terrorist and a Pakistani, you keep getting released from Prison after being … you get a passport in 1999, after all these troubles that you are supposed to have you don’t leave India, you have a passport in 1999, and you don’t leave until January 2004, you come here and you have absolutely no evidence that you were arrested, your story is most unbelievable, you live at the same address in India all your life which indicates the Police weren’t looking for you at all, and I just don’t believe you. However, you say you have evidence in India of your 3 arrests presumably, and newspaper articles, I will give you 2 weeks from today to provide those, that information to the Tribunal. (Emphasis added)
In a sense, the Tribunal’s comment to the applicant “I just don’t believe you” is the Tribunal’s view about the lack of evidence provided by the applicant. The Tribunal member put to the applicant that “the whole story [is] implausible” and that it was not logical. At the conclusion of the hearing, the Tribunal member suggested to the applicant that he submit to the Tribunal the documentary evidence which the applicant said he had to support his case. There was early dialogue between the Tribunal member and the applicant at the hearing which commenced at transcript page 2.7 in relation to that matter and continued to the bottom of page 5 of the transcript. There was fairly strident questioning of the applicant by the Tribunal member as to why the documents had not been provided by the applicant in light of the fact that the delegate’s decision had been made some months earlier. The transcript records the following discussion:
Tribunal Member:         Now do you have any other documents or submissions to give me?
Applicant:I have contacted my family members at home regarding some documents and I am just waiting for them to send me some documents here.
Tribunal Member:         You haven’t got any at the moment?
Applicant:Not at the moment.
Tribunal Member:         And what sort of documents are you waiting for?
Applicant:Some newspaper articles because and also my warrant of arrest because … I was …
Tribunal Member:         What, sorry?
Applicant:My warrant of arrest. Because I was arrested there.
Tribunal Member:         Okay so lets, some newspaper articles about what?
Applicant:And also some newspaper articles. Because that news was also published in the newspaper that I was arrested.
Tribunal Member:         You were named in the newspaper article?
Applicant:Yes.
Tribunal Member:         And does it say, does the newspaper article say what you were arrested for?
Applicant:The article mentioned there that I was arrested on such and such date, on a particular date I was arrested.
Tribunal Member:         But did it say why you were arrested?
Applicant:Yes.
Tribunal Member:         And why did it say you were arrested?
Applicant:I had a friend who was associated with some terrorists. But I was not aware of this fact.
Tribunal Member:         No that isn’t what I asked you. I said what did the newspaper say, why did the newspaper say you were arrested?
Applicant:In fact the particular article about me that date has been mentioned when I was arrested and it is also mentioned that I was studying in a college with one of my friends and also some background about my family.
Tribunal Member:         I asked you does it tell you why were you – what did the article say about the reason for your arrest?
Applicant:Yes the reason of any arrest has been mentioned in that article and the article says that I was associating with terrorists.
Tribunal Member:         So the article is dated and it names you and it states that you were associating with terrorists and that was the reason why you were arrested?
Applicant:Yes it is correct.
Tribunal Member:         And when was this article dated?
Applicant:I can’t remember the date of publication.
Tribunal Member:         And what was it published in?
Applicant:Prithashver Times.
Tribunal Member:         Pardon?
Applicant:Prithashver Times
(Discussion follows between the Tribunal member and applicant regarding the spelling of “Prithashver”)
Tribunal Member:         And you have a copy of this article?
Applicant:I can obtain a copy of that article from the newsagency. I could obtain a copy of that article from the newsagency in India.
Tribunal Member:         I thought you said you were waiting for papers from your family?
Applicant:Now because I am here at the moment my family members can make arrangements to obtain the copy of that particular article.
Tribunal Member:         Have they done so?
Applicant:Maybe. Because those are old newspapers it takes some time to obtain a copy of that newspaper article. It will take some time.
Tribunal Member:         Have you asked your family to supply this copy?
Applicant:Yes.
Tribunal Member:         When did you ask them?
Applicant:I spoke to them 15 days ago.
Tribunal Member:         Why did not wait so long after your application was refused by the Department to ask your family for the documents?
Applicant:I had problem to contact my family members in India on the phone because when I came here I had financial problems and I have bought a mobile phone recently. And another thing is I cannot call my number at home because of my problems with the Police.
Tribunal Member:         I would have thought a mobile phone was less secure than a landline.
Applicant:When I speak to them I use the telephone card.
Tribunal Member:         You could have used a telephone card before you didn’t need a mobile phone.
Applicant:I could not contact them on the landline at home so I asked my parents to purchase a phone card in India and contact me on my mobile here.
Tribunal Member:         You just told me that when you spoke to them you used a telephone card.
Applicant:I couldn’t understand what you are saying.
Tribunal Member:         And that’s the newspaper article, what other documents are you waiting for?
Applicant:Newspaper articles and also some bring the arrest warrants.
The answers given to the Tribunal member by the applicant were to the effect that he had trouble getting in touch with his family by telephone. Consequently, at the end of the hearing, the Tribunal member provided the applicant with an opportunity to obtain the documents he had referred to. The Tribunal member proposed a period of two weeks in which the applicant was to provide the documents, to which the applicant replied it was not enough time and that he would require one month. This discussion is recorded in the transcript 11 as follows

(page 11):
Tribunal Member:         However, you say you have evidence in India of your 3 arrests presumably, and newspaper articles, I will give you 2 weeks from today to provide those, that information to the Tribunal.
Applicant:This time is too less for me.
Tribunal Member:         That’s all I am giving you. How much time do you think you need?
Applicant:One month.
Tribunal Member:         I will give you 3 weeks. If I don’t receive any information by close of business today in 3 weeks, which will be …
Interpreter:  I have it.
Tribunal Member:         Thank you, today is the 16^th, one, two … the 7^th of July. I will proceed to a decision and if I do receive the information I will probably require another hearing to talk to you about it. Is there anything else you would like to say to me at this time?
Applicant:No nothing further.
The Tribunal member then made the following statement which is important in terms of the question of bias, actual bias or apprehension of bias (see transcript at page 11):
Tribunal Member: And you quite understand what the situation is? I’ve told you I don’t believe your story. I’ve told you I’ve found it implausible. I’ve told you why I think it’s implausible. However I’m prepared to give you the benefit of the doubt and that’s because you have apart from the story being implausible you have no evidence at this time to support this implausible story. However, given that’s my initial reaction I’m prepared to give you the benefit of the doubt and allow you 3 weeks from today to provide some evidence to support your story. And if I receive that information that you provide we will have to have another hearing because I’ll want to speak to you about it. And if I don’t receive it I will proceed to a decision based on the evidence that I’ve got which is almost nothing. You understand?
Applicant:Yes.
The Tribunal’s decision was made on 5 August 2004 and handed down on 30 August 2004 (CB pp.65-72). Based on those dates, it is evident that the Tribunal member not only gave the applicant a further three weeks to provide the material (which was due on 7 July 2004), but that further time was allowed until the end of August 2004 before the decision was handed down in which the applicant could have provided the documents.
Ms Clegg submitted that the conduct of the Tribunal at the end of the hearing was very important in determining the question of bias or apprehended bias in this case. It was submitted that this evidence firmly eliminates the possibility of bias because it was clear the Tribunal member had not closed her mind. It was further submitted that the possibility of apprehended bias was also eliminated because a fair minded lay observer who understood effectively what was going on and what the proceedings were about could not, on the Tribunal’s conduct, believe that the Tribunal did not bring an impartial mind to the resolution of the question. It was evident the Tribunal member made it clear to the applicant that she did not believe his story and that was the perfectly proper thing to do given the nature of the proceedings. It was submitted that, in fact, the Tribunal member owed it to the applicant to put him on notice of that requirement. However, despite this notice, the applicant did not provide the relevant documents regardless of being provided with an extended opportunity to do so. I accept the respondents’ submission that on a fair reading of the Tribunal’s decision, supported by the transcript, a fair minded person would be unable to form the view that the Tribunal had not given the applicant the benefit of the doubt. There is nothing on the face of the reasons given and the conduct of the Tribunal which would give rise to either actual bias or apprehended bias.
It is acknowledged that there was some prodding, probing and testing of the applicant by the Tribunal member and even some plain speaking. But there is nothing in the conduct of the Tribunal which would enable me to form the view that a case of apprehended bias had been made out. It is clear if one has regard to the entire transcript of the hearing that the conduct of the Tribunal was nothing other than normal with all the usual testing and probing. The reasons given by the Tribunal in this matter reflect precisely what happened at the hearing, noting that the final conduct of the Tribunal and its reflections in its reasons is giving the applicant an opportunity to make those documents available even after an extended period of grace by the Tribunal.
I note that the submissions filed by the applicant for the purpose of this remittal hearing addressed matters going beyond the question of bias and apprehended bias. I have already referred to paras.(h), (i) and (j) which impact on the questions raised in the remittal and I have taken those into account. The applicant’s submissions (a) to (g), are a collection of pseudo-legal propositions which appear to be a re-formulation of the grounds of review. His Honour Gyles J, in his judgment, noted that:
“The Tribunal did not accept the credit of the applicant. It regarded the story he told as inherently implausible and unsupported by any corroboration at all, notwithstanding ample opportunity to provide the corroboration including an adjournment of the Tribunal’s proceedings.”
Except for the issues of bias and apprehension of bias, all of the attacks upon the Tribunal’s findings were rejected and that approach was not criticised. The matter was remitted for determination of those two issues. The applicant has the benefit of the written decision of his Honour Gyles J and attended a directions hearing on 27 September 2005 where orders were made in the context of the matters to be considered during the re-hearing. The applicant also had the benefit of written submissions and affidavit material prepared by the respondents which set out the substance of the argument to be pursued by the respondents during the hearing. I believe that the purpose of the

re-hearing of this matter in this Court was made clear to the applicant as were the limitations on the material to be considered.

Conclusion

In respect of the issues of actual bias and apprehension of bias, these did not exist in the decision making process of the Tribunal member in this matter. For that reason, I consider the substantive application should be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 27 January 2006