SZEOQ v Minister for Immigration
[2006] FMCA 75
•23 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 75 |
| MIGRATION – Refugee – the Tribunal's thought processes, including those adverse to an applicant, are not information – Tribunal relied on information which falls within the exception in s.424A(3)(a) – no denial of natural justice or procedural fairness – the applicant had ample opportunity to comment at the hearing before the Tribunal – allegations of bad faith, bias, or apprehension of are not made out – findings of fact are for the Tribunal – request for impermissible merits review – evidence of an opinion is not admissible – the Tribunal did not deny the applicant the opportunity to put his case – insufficient material to establish the Tribunal acted in bad faith or was biased in how it approached its task – the application is dismissed. |
| Migration Act 1958, ss.91R, 91R(2), 422B, 425(2)(a), 424A, 424A(1), 424A(3)(a), 424A(3)(b), 474 Evidence Act 1995 (Cth), s.76 Federal Magistrates Court Rules 2001, r.11.08 |
| Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicants: | SZEOQ & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3095 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 June 2005 |
| Date of Last Submission: | 8 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. Bromwich |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The first named and second named applicants pay the first respondent’s costs set in the amount of $5500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3095 of 2004
| SZEOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 15 October 2004 seeking review of decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 September 2004 and handed down on 7 October 2004 to affirm the decision of a delegate of the respondent Minister made on
16 May 2003 to refuse a protection visa to the applicants.
The applicants are husband wife and child and are all Lithuanian nationals who arrived in Australia on 17 January 2003, and who applied to the respondent Minister's Department for protection visas on 28 February 2003. Only the first named applicant (the applicant husband) made claims under the Refugee Convention. His wife and child relied on membership of his family unit. In their application the applicant husband (to whom for ease I will refer to as the applicant) claimed to have been the subject of discrimination in Lithuania because of his gypsy (Roma) ethnicity. He claimed the situation deteriorated since Lithuania became independent, and that the biggest problem was with the police who regarded all gypsies as “criminals”. He claimed some relatives suffered persecution, and his cousin and brother were imprisoned on fabricated charges. He further claimed to have been subjected to harm by the police who broke into his apartment on three occasions looking for weapons and drugs. He claimed to have been subjected to racial slurs, and to had been beaten, and feared further discrimination and harm by the State authorities if he were to return.
The application for the protection visas is at Court Book (“CB”) 1 to CB 34 and specifically in an attached statement reproduced at CB 35 to CB 37. The application for review made on 29 May 2003 is, with a covering letter, at CB 61 to CB 65. The enclosed covering letter at CB 61 sets out the applicant’s reasons as to why he disagreed with the Minister’s delegate’s decision to refuse the grant of the protection visas. The applicant was represented by a migration agent throughout the period of the processing of his application by the Department, and before the Tribunal. The applicant and his migration adviser (Mr A. Volonski) attended a hearing before the Tribunal on 13 April 2004. The Tribunal's account of this hearing is recorded at CB 285.5 to CB 281.8 in its decision record (see also a Transcript of the hearing referred to below). I should also note that relevant parts of the applicant’s passport were provided by the applicant to the Tribunal at the hearing that it conducted with the applicant (CB 240 to CB 256).
By letter dated 15 April 2004 (CB 73 to CB 75) the Tribunal wrote to the applicant pursuant to s.424A(1) of the Migration Act 1958 (“the Act”) and put information to the applicant which it said was relevant to a possible refusal of the claims, gave reasons as to why it was relevant to the review, and invited the applicant to comment on this information. The information sent to the applicant for comment is reproduced at CB 77 to CB 239. It is independent country information available to the Tribunal. The applicant's response was contained in a letter dated
5 May 2004 from the applicant’s adviser, and is reproduced at CB 257 to CB 268.
The Tribunal's decision record is reproduced at CB 275 to CB 298. The Tribunal's “Findings and Reasons” for its decision are set out at CB 291.4 to CB 298.2. Essentially, the Tribunal noted that only the applicant had made Convention related claims, and that his claims were that he was an ethnic Roma Russian who suffered discrimination in Lithuania, and that after he returned from abroad in July 2002 on three occasions his home was raided by police because of his ethnicity. It noted that the applicant feared returning to Lithuania as he feared he would suffer persecution because of his Roma Russian ethnicity. At CB 291.6 the Tribunal stated that it rejected the applicant's claims as it was not satisfied that the applicant suffered Convention related harm in the 13 months he resided in Lithuania after he had returned from abroad, and nor was it satisfied that the applicant had suffered harm amounting to persecution as an ethnic Roma Russian all his life as claimed (CB 291.7). The Tribunal's findings were that:
1)Despite reservations, the Tribunal gave the applicant the benefit of doubt and accepted that he was an ethnic Roma Russian (CB 291.9).
2)It placed weight on the applicant’s lack of applying for protection whilst abroad prior to July 2002. In the Tribunal's view this indicated the lack of a subjective fear of persecution (CB 292.3).
3)As the applicant was able to be educated beyond the education level of many other Roma, that this did not suggest the applicant suffered discrimination in respect of his education (CB 292.5).
4)It accepted that there existed a lack of adequate awareness within Lithuanian society, as a whole, of the existence of racial prejudice and discrimination and the need to combat it, and that further the lack of education and training impacted negatively on the employment possibilities of the Roma community (CB 292.9).
5)The Tribunal accepted that the level of unemployment amongst Roma in Lithuania is believed to be far higher than the national average, but noted that the information before the Tribunal did not suggest that only ethnic Roma or ethnic Russians comprise the unemployed, or that they are denied the capacity to earn a livelihood or suffer significant economic hardship or denial of access to basic services (CB 293 .2).
6)It rejected the applicant's claims that he was identified as a Roma on his documents, and noted that the applicant’s Lithuanian passport did not contain any identification that the applicant was ethnic Roma. It found that it stated that he was ethnic Russian. The Tribunal pointed to independent country information which indicated that most Roma do not have personal identification documents (CB 293.5) and that further this independent evidence indicated that a number of Roma who have lived in Lithuania for a long time were not in possession of Lithuanian citizenship. This was in contrast to the applicant who had both Lithuanian citizenship, and a Lithuanian passport. It noted further that he did not live in the “Roma encampment” and had attended secondary school, and had been employed casually until his first overseas trip (CB 293.7).
7)In relation to the claims that after independence in 1991 the situation for Roma deteriorated in that the police “regarded all Roma as criminals”, the Tribunal did accept that Roma “can and do suffer harassment from the Lithuanian police”, but noted that the applicant resided abroad from 1996 to July 2002 (CB 293.9).
8)The Tribunal accepted that there had been instances of police harassment of Roma in the Roma encampment, but found no independent evidence to support the applicant’s claims that “police and the State” target Roma people generally who live outside this encampment (CB 294.4).
9)It noted that the applicant was not arrested by police after a number of raids, nor was he charged with any offence by the police. Further, the Tribunal noted that the applicant did not report claimed raids on his house, or attempts to implicate him in criminal activity. It was satisfied that such conduct by the Lithuanian police (accusing a person of involvement in criminal activity and conducting raids), whilst indicating police harassment, did not amount to persecution as required by s.91R of the Act, in that there was no threat to the applicant’s life or liberty and he did not suffer significant physical harassment or significant physical mistreatment (CB 294.7). The Tribunal noted the mechanisms available to make complaints and to report police harassment and excesses in Lithuania, and that the applicant did not make any complaints. It noted the applicant’s explanation for this, but in any event, also noted a European Commission Against Racism and Intolerance report of 2002, had stated that no Roma organisation had recorded any case of filed complaints of violence by police, and that the applicant made no attempt to obtain any redress for the conduct complained about (CB 294.8 to CB 295.2).
10)In this regard it noted that there cannot be a failure of state protection where there has been no opportunity for a government to respond to a form of harm in circumstances where protection might reasonably have been forthcoming (CB 295.3).
11)Having also looked at independent country information in relation to the Russian minority in Lithuania the Tribunal was satisfied that the applicant did not sufferer Convention related harm in Lithuania for a Convention related reason based on his claimed Roma Russian ethnicity (CB 295.8). While it was satisfied that the applicant did not have a well founded fear of persecution when he left Lithuania to travel to Australia, the Tribunal also addressed the issue as to whether Roma or Roma Russians face a level of discrimination and harassment and may be at risk of persecution in the future (CB 296.2).
12)The Tribunal looked at a range of independent evidence before it (this is covered at CB 296.3 to CB 298.1) and found that while the evidence indicated that ethnic Russians do not suffer discrimination or harm in Lithuania, that official and societal discrimination against Roma did exist in Lithuania (CB 296.3).
13)But in reviewing the relevant circumstances, the Tribunal found that it was satisfied that there was “practical” protection by the State in relation to Roma from persecution and that such protection was effective (CB 298.1).
14)In all, the Tribunal was satisfied on the evidence before it that the applicant was able to return to Lithuania and was not satisfied that he had a well founded fear of persecution (CB 298.2).
15)In relation to the applicant’s wife and child the Tribunal found that their application depended on the outcome of the applicant's application and accordingly affirmed the decision not to grant protection visas in relation to all three applicants (CB 298.4).
By way of amended application filed on 19 January 2005 the applicant essentially repeats the complaints made in the originating application to this Court and identifies three parts of the Tribunal's reasons (he describes these as being at page 20 and 21) which all appear within the Tribunal's “Findings and Reasons”, and argues that this was information which was relevant and significant to the decision that was made, was specifically about the applicant, and that the Tribunal failed to provide an opportunity to the applicant to comment pursuant to s.424A(1) of the Act. I will deal specifically with these complaints below.
The applicant was unrepresented at the hearing before me although it became clear during the course of the hearing that he had the assistance in a limited capacity of his migration agent Mr. Volonski. The applicant was also assisted by an interpreter in the Russian language. Mr. Bromwich appeared for the respondent. At the hearing I confirmed with the applicant that I had before me the following material that he had submitted:
1) The application filed on 15 October 2004.
2) The amended application filed on 19 January 2005.
3) The applicant’s outline of submissions filed on 26 May 2005.
4)The affidavit of Kristina Borisova, sworn on 19 May 2005 which attaches a Transcript (“T”) of the hearing conducted by the Tribunal with the applicant and his adviser.
5)I also note that at the hearing before me the applicant submitted a further document headed “Applicant’s oral submission”.
For the respondent I have the Court Book to which I have already referred and written submissions filed on 11 May 2005.
During the hearing I confirmed with the applicant:
1)That he was a representing the whole family and that I understood that he was attending Court on behalf of his wife and child as well as presenting his own claims.
2)I made an order that pursuant to Rule 11.08 of the Federal Magistrates Court Rules2001 (“the Rules”) the applicant be appointed as the litigation guardian in respect of the third named applicant, his son, who was a minor.
3)Mr. Bromwich submitted that the Transcript of the tape of the hearing provided by the applicant was not “perfect” but that in substance, from the respondent’s perspective, it was a reasonable representation of what was said at the Tribunal hearing and made no objection to the affidavit being read into evidence. I subsequently granted leave for this to be done.
4)The applicant confirmed that he was seeking to rely on the written submissions filed in Court at the hearing before me which had been prepared with the assistance of his migration agent, and which the applicant described as his “speech”. This, and the applicant’s earlier outline of submissions, argued a ground not raised in either the application or the amended application. The submission appeared to argue that the Tribunal had taken into account an irrelevant consideration, but far more importantly, that the Tribunal decision was infected with bias and/or the Tribunal had acted in bad faith.
In relation to this latter complaint the applicant made a number of assertions at the hearing and in his “speech”, which I will address below. Mr. Bromwich objected to my relying on these assertions made purely in submissions, and specifically sought that the applicant understand that there was a need to provide evidence to support these assertions. I made sure that the interpreter interpreted most carefully at this point, and asked Mr. Bromwich to repeat his submissions. Further, I advised the applicant that there was a need for a proper evidentiary basis in order to challenge the Tribunal’s decision successfully in relation to this point. In this regard, I specifically advised the applicant that I would give him a reasonable period of time the following the conclusion of the hearing to obtain legal advice about how to go about presenting this allegation in a proper evidentiary context. I should also note that a further reason for providing the applicant with an opportunity to provide evidence of the matters asserted in his written submissions was my preliminary concern with some aspects of the Tribunal's conduct as evident in the Transcript of the hearing provided (I will deal with this below). Further, I gave the applicant a short adjournment during the course of the hearing before me to consult with his migration adviser, who was present in Court, to make sure that the applicant fully understood what was required. It also became apparent that while the applicant had indicated at the first Court date in this matter that he wished to access the Court’s Legal Advice Scheme, but the Court’s registry had taken no action in this regard. I note that subsequent to the hearing (and this was another reason for giving the applicant a further opportunity to provide any evidence) that the applicant was referred to a lawyer on the panel of the Court’s Legal Advice Scheme, and the Court registry confirmed that a panel lawyer contacted the applicant in this regard. Subsequent to the hearing the applicant filed his affidavit sworn on 5 July 2005, and the respondent filed further submissions on 8 August 2005. Nothing further has been received from the applicant.
The applicant’s first complaint as set out in the applications to this Court is that:
“In making its decision the Tribunal relied upon the following:
1)There was no threat to the first applicant’s life or liberty and he did not suffer significant physical harassment or significant physical treatment. The applicant was not charged or arrested. Therefore such conduct by the Lithuanian police, accusing a person of involvement in criminal activity and conducting raids whilst indicating police harassment does not amount to persecution [p.20 of the decision]
2)The applicants did not suffer Convention related harm in Lithuania for a Conversions [sic: Convention] related reason [p.21].
3)Russian minority are not subjected to any harm in Lithuania. They have access to primary, secondary and tertiary education etc [p.21]”
The applicant subsequently complains that as to the first two grounds the Tribunal did not give him an opportunity to comment on this information, and that such information was relevant and significant to the decision, and was specifically about the applicant and should, pursuant to s.424A(1) of the Act, have been given to the applicant, and the applicant should have been allowed to comment on this information. The amended application does not expand on the complaint in relation to the “third ground” but I note that in the originating application the applicant complains that the independent information related to the Russian minority in Lithuania, which had nothing to do with the applicant, as he claimed he had been persecuted for reason of his Roma ethnicity and that as this information was unrelated to the applicant it could not be the reason or part of the reason to refuse the applicant's application. I saw this as being linked to the applicant’s subsequent complaint before me that the Tribunal took into account irrelevant considerations.
In relation to the first numbered paragraph in the applicant’s amended application, this clearly relates to the Tribunal's “Findings and Reasons” at CB 294.5. The Tribunal's decision record shows that the Tribunal said:
“I am satisfied that such conduct by the Lithuanian police, accusing a person of involvement in criminal activity and conducting raids whilst indicating police harassment does not amount to persecution as required by Section 91R. There was no threat to the applicant’s life or liberty and he did not suffer significant physical harassment or significant physical ill-treatment. The applicant was not charged or arrested.”
On any plain reading of the Tribunal's decision record this is not information within the meaning of that term as found in s.424A(1) of the Act. This was clearly a finding (albeit adverse to the applicant) made by the Tribunal. It is now well established that the Tribunal's thought processes, including those adverse to an applicant, are not information for the purposes of s.424A(1) (See Tin v Minister for Immigration and Multicultural and indigenous Affairs [2000] FCA 1109 and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396).
Further, to the extent that it may be said that the Tribunal relied on information in drawing this adverse finding, then clearly it was based on information provided by the applicant himself which was that the applicant did not suffer significant physical harassment or significant physical mistreatment and that he was not charged or arrested. In this regard such information would fall within the exception set out in s.424A(3)(b) from the requirement to put such information to the applicant pursuant to s.424A(1) of the Act.
The applicant’s second numbered complaint in the amended application again is not a strictly accurate reflection of what the Tribunal actually said. At CB 295.9 the Tribunal stated:
“I am therefore satisfied the applicant did not suffer Convention related harm in Lithuania for a Convention related reason, that is his claimed Roma/Russian ethnicity.”
Clearly, again, on any plain and simple reading of the Tribunal's decision, this is a conclusion reached by the Tribunal based on the analysis that precedes this finding, both in relation to the issues relating to his Roma, and separately his Russian, ethnicity. What the applicant now describes as information is in fact a finding which is adverse to the applicant, and not information for the purpose of s.424A(1). Nor can I see in relation to any information which may have been used by the Tribunal in its analysis in reaching this conclusion, that there was any information that does not fall within the exception set out in s.424A(3)(a) as now understood following Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”) and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 (“QAAC”), or falls within the exception set out in s.424A(3)(b) from the requirement to put any such information to the applicant pursuant to s.424A(1) of the Act.
The third numbered complaint in the amended application reports the Tribunal as having said:
“Russian minority are not subjected to any harm in Lithuania. They have access to primary, secondary and tertiary education etc [p.21]”
The first sentence in this complaint does not appear in that form in the Tribunal's decision record at CB 295 (page 21), nor does it appear in that form elsewhere in the Tribunal's decision record. In relation to his claims that he would suffer persecution because of his Russian ethnicity, the Tribunal clearly looked at independent country information available to it, and CB 295 contains the Tribunal's references from this independent country information, which led the Tribunal to finding that the applicant did not suffer Convention related harm in Lithuania for a Convention related reason being his Russian ethnicity. This was based on the circumstances put forward by the applicant as seen in the context of the independent country information available to it. The Tribunal does not appear to have made a finding specifically, as put forward by the applicant, that the Russian minority are not subject to any harm in Lithuania. Rather, the finding was that the applicant did not suffer such harm, in the context of the material that was before it, for his claimed Russian ethnicity. This was clearly open to the Tribunal on the material before it. Relevantly, in the context of the complaint about the alleged failure pursuant to s.424A and the independent country material referred to and relied on by the Tribunal in relation to the situation of the Russian minority, this was clearly information that fell within the exception set out in s.424A(3)(a) of the Act from the requirement to put this information to the applicant pursuant to s.424A(1).
In relation to the second sentence complained of by the applicant, this appears to be a reference to the Tribunal's statement at CB 295.5:
“The Russian minority have access to primary, secondary and tertiary education in their own language.”
But here again it is very clear that the information on which the Tribunal relied falls within the exception in s.424A(3)(a) of the Act. It is clear that this could not be regarded as information that was specifically about the applicant. It was about a class of persons of which the applicant is a member (QAAC and NAMW). But I note further that in relation to the issue of the Russian minority in Lithuania and education, the Tribunal specifically wrote to the applicant on
15 April 2004 (the s.424A letter) and amongst other information, put to the applicant for comment a reference to Russian schools. At CB 75 the Tribunal stated to the applicant:
“There are ethnic Russian schools and relations between the ethnic Russian and Lithuanian communities have improved since independence. Lithuanian Russian participate in politics and Russian religious communities play a role in Lithuania’s cultural and spiritual life”
Clearly therefore, even if the information did not fall within the exception provided for in s.424A(3)(a) the Tribunal in any event wrote to the applicant and specifically drew his attention to this information and invited his comments on it.
While relevantly s.422B of the Act applies to the Tribunal's decision, to the extent that the applicant appears to complain in his originating application that there was a denial of natural justice (although in the amended application this is clearly set in the context of s.424A), nonetheless the issues in relation to which the applicant now claims not to have been given an opportunity to comment, appear to be issues and material put forward by the applicant himself (either at the hearing or by his adviser on his behalf in written submissions) or independent country information which was not specifically about the applicant but in any event was put to the applicant in writing. Information on which the Tribunal relied in relation to the situation faced by the Russian minority and the Roma minority in Lithuania were clearly put to the applicant by way of letter of 15 April 2004 and this included information about the independent evidence available to the Tribunal relating to police and the Lithuanian government and its attitudes and actions in relation to ethnic Roma or half Roma Russians. The matters complained of by the applicant specific to him, that the police conducted raids on his house, were discussed with the applicant at the hearing. The Transcript of the hearing provided by the applicant shows at T5 that the Tribunal and the applicant discussed the three raids by police on his home, and the applicant confirmed that he had never been charged. He clearly stated that the police came to his house three times, he was taken to the police department once, that they investigated, but the case did not end up in the court. Even in the context of the complaint that the Tribunal did not accord the applicant “natural justice” as against any common law principles of procedural fairness, I cannot see that this complaint can be sustained on the material before me.
In all the circumstances I agree with the submissions from Mr Bromwich that what the applicant really complains of in his originating and amended application to this Court is that the Tribunal did not give him an opportunity to comment on its decision making thought processes. As I have already said this is not required pursuant to s.424A of the Act. In this regard, in addition to what I have set out above, I note that the respondent has specifically referred me to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [29] citing the decision of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 574 at 592, which in turn was cited with apparent approval by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme (2003) 216 CLR 212 at [22]. But even further, any plain reading of the Transcript of the hearing with the Tribunal provided by the applicant shows that even as against any common law principles of procedural fairness, the applicant cannot now complain that he was left in the dark by the Tribunal as to the Tribunal's initial thinking in relation to both the Roma and Russian minorities in Lithuania. I cannot see in all the circumstances before me that the Tribunal failed to draw the applicant's attention to the issues on which its decision would turn or that there was any failure by the Tribunal in this regard. The applicant would clearly have known the substance of what the Tribunal was going to rely on in its decision and was given the opportunity to respond. Through his adviser, he took up that opportunity to comment in relation to the matters raised by the Tribunal in a submission subsequent to the hearing with the Tribunal. The matters raised in the application and amended applications are not made out.
By way of written submissions filed on 26 May 2005 and in written submissions submitted at the hearing before me, which the applicant stated were submissions on which he sought to rely, (which I note had been drafted with the assistance of his migration adviser) the applicant makes further complaints that the Tribunal was acting in bad faith and that this can be shown variously by the Tribunal making deliberate mistakes, giving the applicant misleading information, and by its conduct during the course of the hearing with the applicant. The applicant generally asserts that the Tribunal made findings which were linked to assertions made at the hearing which also affected significantly the applicant's ability to give evidence. I should at first note, again for the applicant’s benefit, that an allegation of bad faith or bias on the part of a Tribunal or an allegation that the Tribunal acted with bias is an extremely serious matter. Such allegations of bias, whether actual bias, or the apprehension of bias, must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more than just the conclusion reached by the Tribunal to support this claim. Also allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]).
I also note submissions made by Mr. Bromwich, with reference to Heerey and Kiefel JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 (“SBAN”) where the Court dealt with actual bias for the purposes for deciding whether bad faith was made out so as to negative the application of the privative clause in s.474 of the Act, and in particular at [11] where their Honours noted:
“In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s 425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.”
There are a number of authorities in relation to the principles applying to a decision of the Tribunal and whether such a decision constitutes a bona fide attempt to exercise the power of review. The propositions in the Full Federal Court decision of SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 have been followed, and in some senses extended by the Full Federal Court SBAN and Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142. It is clear that the authorities agree that an allegation of bad faith is a serious matter involving personal fault on the part of the Tribunal member and it should not be an allegation which is lightly made. There are many ways in which bad faith can be shown to have occurred. The applicant, initially through written submissions and then in reliance on the Transcript of what occurred at the hearing with the Tribunal, seeks to show a number of instances where this Tribunal can be said to have acted in such a way as to show bad faith. The applicant to a large extent, subject to an affidavit filed subsequent to the hearing before me (with which I deal below), sought to rely solely on the Transcript of the hearing to support this allegation.
Allegations of bias, apprehension of bias or bad faith are often made by applicants who have been unsuccessful before the Refugee Review Tribunal if for no other reason than as a means to understand and explain why claims they have made to a Tribunal were not believed by the Tribunal, or to explain why they were otherwise not successful before the Tribunal. I should just note at this point therefore that my reading of the Transcript of the hearing this Tribunal conducted with the applicant does give rise to some concerns that the applicant's complaints in this case may rise above a mere misguided explanation for an adverse Tribunal decision. It was for this reason that I specifically gave the applicant a further opportunity following the hearing before me, and after having explained to him, and separately having had the interpreter specifically repeat submissions made by Mr. Bromwich on this point, that he needed to provide evidence to support key aspects of his claims further to what he had already put to the Court by way of the Transcript of the hearing.
The Tribunal's exchange with the applicant's adviser beginning at page 9 of the Transcript (T9) of the hearing is demonstrative of a poor example of a Tribunal hearing. The conduct of such hearings, clearly involving issues of potentially life threatening situations and significant life affecting decisions, can often involve argument and misunderstanding. It is quite understandable that some apparent rejection of a claim (particularly, and even, as it may derive from considered and reasoned, but nonetheless adverse view of the applicant’s credibility) can be seen as an indicator of bias or bad faith at the hearing. This is particularly exacerbated in situations, as is overwhelmingly the case in matters involving refugee applicants, of different cultural perspectives, practices and expectations. However, in many ways a Tribunal member who puts any such adverse views to an applicant at a hearing fulfils that worthwhile objective of putting the applicant on notice of potentially adverse findings and thereby giving the applicant the opportunity to comment. The issue however is whether the conduct of the Tribunal member is such that they are not open to be persuaded otherwise than the adverse outcome they have put. Where Tribunal members act in a professional and objective manner, maintaining control over the proceedings then it is far more difficult for an applicant to establish that the Tribunal has acted inappropriately such as to show bad faith or bias.
The Tribunal and the adviser clearly engaged in verbal sparring at the hearing with both cutting the other off. Clearly some heat was generated (T9.9):
Adviser: “Can I finish, please? Can I finish, please?”
There were two ways in which as to how the Tribunal dealt with the adviser's initial allegation that the Tribunal had provided “misleading information” (T9.8) to the applicant. Firstly, the Tribunal quickly (by T10.4) indicated that in relation to the information on which it relied, it would write and send this information to the applicant and the adviser pursuant to s.424A(1) of the Act. The Tribunal's response in this regard can be seen as most appropriate, in that it clearly was intending to provide the applicant and his adviser with an opportunity to comment on the information on which it was considering to rely, particularly in circumstances where the obligation to provide information to the applicant would have been subject to the exemption contained in s.424A(3)(a) or (b) of the Act. In this regard the Tribunal exceeded its statutory obligations in immediately indicating that it would send this information to the applicant to enable him to comment. However, and secondly, it is the Tribunal’s failure to maintain control of the hearing from that point, and the nature of the exchanges with the adviser, that gives rise to some initial concern. At the hearing before me Mr. Bromwich fairly agreed that “this exchange would have been better if it hadn't taken place”. I note however that there is no doubt that the applicant's adviser contributed to the exchanges which followed on from his somewhat threatening comment at T10.7:
Adviser:“And because it would take me probably one hour to comment on all your claims raised during the course of the hearing…”
Tribunal: “You will have that opportunity.”
Adviser: “Yes, I’ll have an opportunity in the court.”
But the issue to focus on primarily, and initially, is the conduct of the Tribunal, not the adviser. The Tribunal hearings, particularly as they are being conducted in an inquisitorial context by the Tribunal member, need to be conducted with some measure of control by the Tribunal member. The Tribunal clearly made the initial appropriate response, but can also be seen to have continued with the verbal sparring and to have further “inflamed” the exchange, as can be seen at T10.8:
Tribunal: “Alright. Mr. [Applicant], I am going to send you the documents that I have referred to in this hearing. I am going to give you the opportunity to respond to those documents. And you will have the opportunity to make any further submissions that you wish to make in regard to your application. Your advisor has informed me that some of the documents that I’m referring to are bogus.”
Advisor: “No, I didn’t say that. Don’t try and twist my words. I said that information provided by you bogus. There is a difference between reports and information provided by you. You can tell the difference between those two.”
Having said that the applicant would be given an opportunity to comment on the information that the Tribunal was going to rely on, the exchanges with the adviser which in the Transcript continue for some pages, were allowed to continue without really progressing the issue of concern which was essentially the information that the Tribunal was going to rely on, and the use to which the Tribunal was likely to put this information.
Having said the above however, I made it clear to the applicant at the hearing before me (also for the reasons set out below) that while the Transcript of the hearing gave rise to some concern, it was not in my view sufficient to make out the complaint of bad faith or for that matter bias or the apprehension of bias as those terms are understood within the current applicable legal authorities. It was clearly on this basis that I gave the applicant a further opportunity to provide additional evidence to this Court to support the complaint that he had made. The only additional evidence provided by the applicant was his own affidavit sworn on 5 July 2005.
I turn now to the specifics of this complaint, and in particular, as set out in the written submissions to this Court. The applicant's first complaint in this regard related to the issue of the applicant's appearance. The applicant complains that the Tribunal stated at the hearing that he was a “blond man” and that he therefore did not look like a Roma. The argument appears to be that this allegedly clear “untrue statement” (see the applicant’s affidavit of 5 July 2005) by the Tribunal contained in the Tribunal’s comments to him (T8.7) goes to show bad faith on its part. I note here that the applicant claimed before me that clearly he did not have fair skin, that he was not a blond man, and although he had “coloured” eyes they were dark brown, not blue as most Russians have. The applicant asked that the Court find that clearly the Tribunal was wrong to say that he was a “blond” man. The applicant also makes reference to T2 and T8 of the Transcript of the hearing to support his claim. The applicant's complaint in this regard has a number of different aspects:
1)That the Tribunal was wrong to state that he was a blond man and that on that basis it found that the police and Lithuanian people would not know that he was a Roma.
2)That this finding was the main reason to affirm the delegate’s decision.
3)That this “untrue statement” was an example of the Tribunal acting in bad faith.
The Tribunal's comments to the applicant at the hearing in relation to the applicant's appearance do need to be seen in context. The Tribunal began its questioning of the applicant, after having settled preliminary matters, at T2 with the statement that after having read the file, it understood that the applicant was an ethnic Roma. This issue on examination of the material before me, was certainly at the heart of the applicant's claims to fear persecution. The applicant's statement to the Minister's Department (CB 35) clearly set out his fear of persecution as being the discrimination, humiliation and physical attacks because of his ethnicity which he described in that document as “Gypsy”. The subsequent claims relating to the police attacks on his house and family were clearly, in the applicant’s presentation, because of how “vulnerable and unprotected all Gypsies are”. The applicant's claim at CB 36 was that he left Lithuania because of the attacks by police on his home, which clearly he saw as flowing out of his Gypsy ethnicity. In the letter covering the application to the Tribunal (CB 61) the applicant's adviser stated his client’s disagreement with the decision made by the delegate on the basis that there were a number of reports regarding the difficult situation of “Roma (Gypsy) minorities” It was certainly most appropriate therefore for the Tribunal to open the hearing it conducted with the applicant with the focus on the applicant's claimed ethnic Roma background. Clearly, relevant to the Tribunal's consideration of this claim, was whether the applicant was in fact ethnically part Roma, and perhaps of greater importance, whether a person who, as the applicant had done, asserted that he was a Roma or part Roma, was likely to be perceived as such and therefore subject to the discrimination and persecution which he claimed.
The Tribunal then, in one part of the hearing specifically complained about by the applicant, said (T2):
Tribunal: “You do not look like an ethnic Roma to me. You are a very blond man, you have light skin, you have I think very large coloured eyes. And so if I walked past you in street I would think that you were perhaps… possibly an ethnic Russian, you even look like a Lithuanian to me.”
Further, at T8 the Tribunal says:
Tribunal: “Sir, you walk down the street in Vilnius and nobody would know you are a Roma. You are blond, you have fair hair, you have fair skin. Roma tend to be dark hair and dark skin. And you, sir, look like a classic ethnic Russian, or even a Lithuanian. So I ask myself: “How would somebody identify this person as a Roma?” You have a Russian name, you look like a Russian”
It is clear that, as Mr. Bromwich submitted, it is no part of this Court's role to form factual conclusions as to the appearance of the applicant. It is well settled that findings of fact are for the Tribunal and not the Court (MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 and Abebe v Commonwealth (1999) 197 CLR 510 at 137). Even an error in a finding of fact, unless it shows that it caused the Tribunal to ask itself the wrong question, is not sufficient to show jurisdictional error in the Tribunal's decision. The issue however remains as to whether some deliberate misstatement of the applicant's appearance could have led the Tribunal to have taken into account an irrelevant consideration, or whether it is relevant to the applicant's complaint that it was one indicator of bias or bad faith on the part of the Tribunal.
It is clear that in looking at the issue of whether the applicant could be perceived to be a Roma by police and authorities, or even others who may have or could discriminate against him, that the issue which was not in dispute between the Tribunal and the applicant and his adviser, is that a characteristic of Roma people is that they are dark complexioned. In fact, in response to the Tribunal’s s.424A letter, the applicant's adviser specifically addresses this issue, and at CB 261.8, where a copy of the letter is reproduced, he states:
“During the hearing you stated that the applicant did not look as a Roma, because he had blond hair and light eyes. I disagree with your claim. The applicant looks like Roma. He has a dark skin, dark brown eyes and black hair.”
At the hearing conducted with the applicant the Tribunal put to the applicant that its observation was that he was generally a fair complexioned person, as opposed to a dark complexioned person, which would have been consistent with his being of Roma ethnicity or to have been perceived as such. Further at T8, the Tribunal put that if he had been walking down the street in Vilnius he would not have been identified as a dark skinned Roma. In its account of the hearing the Tribunal confirmed (CB 280.5) that at the hearing held on 13 April 2004 it put to the applicant that he “did not visually appear to be Roma”. I should just note that the Tribunal’s account then goes on to record that:
“He [the applicant] agreed and stated his father is a Gypsy and his mother Russian.”
It is significant particularly in light of the adviser’s subsequent submission to the Tribunal and in light of the importance to which the applicant attaches to this issue of appearance before me now, that the Transcript (put forward by the applicant now) shows that he did not in response deny or contradict the Tribunal’s observation. While clearly he did not explicitly agree with the Tribunal, it was certainly open to the Tribunal to believe that the applicant had agreed. His reply was:
“Applicant: The first thing that I wanted to say in reply to that [the Tribunal’s comment about his appearance] is that my father is Roma, but my mother is Russian.”
This could be believed, in context, to be an attempt by the applicant to explain why, as the Tribunal suggested, he did not “look like an ethnic Roma”.
As I have already said, it is not for this Court to make findings of fact relevant to the applicant's claims before the Tribunal. But one issue is whether the findings made by the Tribunal were open to it on the material before it. In this regard, I need to emphasise for the applicant and his adviser that statements made by the Tribunal at the hearing are not findings. The Tribunal is entitled to put matters to an applicant by way of testing what has been put before it. The critical issue in relation to the complaint that the Tribunal was wrong, and that this was the “main” finding to affirm the delegate’s decision, is what use the Tribunal made of all this when it came to make its findings and decision. In this regard, it needs to be seen that despite its reservations about the applicant's claims as to his physical appearance and how he would be perceived, the Tribunal clearly stated in its decision record (CB 291.9) that for the purposes of making its decision it gave the applicant the benefit of the doubt and accepted that he was an ethnic Roma Russian. This was clearly consistent with, and accurately reflected, the applicant's own claims as seen for example in answer to the Tribunal's statement at T2.7 regarding his appearance and that his father is Roma and mother is Russian.
In terms therefore of the use that the Tribunal made of its observation at the hearing, even if this contained some error, the impact of any such error is clearly neutralised when the Tribunal accepted the applicant's ethnicity as being Roma Russian, and proceeded to examine his claims in that context. What follows in the Tribunal's “Findings and Reasons” at CB 293 to CB 295 is clearly predicated on the basis that the applicant is of joint Roma Russian ethnicity. Clearly the Tribunal considered the applicant's claims as they flowed from his claim of Roma ethnicity and further on the basis of Russian ethnicity.
The applicant also claims now that the Tribunal found that the Lithuanian police would not know that he was half Roma. This also derives from the Transcript of the hearing. The applicant asserts that at T6 the Tribunal said he was of “Russian appearance”. By implication that he was not of Roma appearance. But again this was clearly not a finding by the Tribunal. In any event, the assertion is a misrepresentation in some ways as to what exactly the Tribunal was putting to the applicant at the hearing. That the Tribunal stated that a Lithuanian person would not know by looking at him that he was a Roma is clearly reflected in the Transcript. But in relation importantly to T6 of the Transcript, what the Tribunal is shown to have said was that it did not believe what the applicant was saying about why he and his brothers were of interest to the police. This was not related to the police perceptions of his actual appearance. Clearly the issue at T6 of the Transcript, which the applicant puts forward as the example of the “finding” of the applicant's alleged Russian appearance, is not about appearance at all. The Tribunal asked the applicant why the police were interested in him and his brothers. The applicant answered that it was not that the police were interested particularly in him and his brothers as such, but it was a general action against Roma people and that they were targeted because they were members of the Roma community. What the Tribunal then said was not that it did not believe that the applicant was not perceived to be a member of the Roma community or that he was of Russian appearance, but that the Lithuanian police would not have so much time on their hands to simply pursue people of mixed Roma ethnicity and persecute them merely because they were of mixed Roma ethnicity. The Tribunal clearly in this context accepted that the applicant was of mixed Roma ethnicity, and clearly there was no issue of whether or not he would have been perceived as such, but what the Tribunal found as not believable was that the police would target people (outside of the Roma encampment) purely because they were of mixed Roma ethnicity. Further, in its “Findings and Reasons” the Tribunal (CB 294.3) clearly dealt with the applicant's claims in this regard as put by the applicant. He alleged that he had been targeted by police because he was an ethnic Roma. The Tribunal, relying on independent information, accepted that there had been instances of police harassment of Roma, but that this was of Roma who lived inside Roma encampments. The Tribunal noted that the applicant had stated, and this is not in dispute, that he did not reside in a Roma encampment and had stated that his mother, who was ethnic Russian, did not want to live there. It was clearly open to the Tribunal to find that the raids on the applicant's house, (even to the extent that there was some accusation of involvement in criminal activity) whilst possibly indicating police harassment, did not in the circumstances before it amount to persecution as required by s.91R of the Act. The Tribunal, it is clear, specifically turned its mind to s.91R(2) which provides examples of what may constitute serious harm for the purposes of the definition of persecution and found there was no threat to the applicant's life or liberty, and that he did not suffer significant physical harassment, or significant ill-treatment and nor was he charged or arrested. Elsewhere in its “Findings and Reasons” the Tribunal properly addressed the issues of the applicant's employment situation and his educational opportunities as clearly these were all matters relating to the applicant’s claim that his circumstances amounted to “serious harm” for the purposes of s.91R of the Act.
Clearly, what the applicant has attempted to characterise as “findings” in relation to the Tribunal’s comments about the applicant's appearance were not findings but, at best statements made by the Tribunal during the course of the hearing it conducted with the applicant. Importantly, whether the Tribunal had “views” about the applicant's appearance and whether he was considered Roma-like in appearance or not, it is clear that the Tribunal proceeded on the basis, notwithstanding what it had put to the applicant at the hearing, that he was in fact, as he had consistently claimed, of half Roma, half Russian ethnicity. Having arrived at that position (CB 291.9 to CB 292.1) the Tribunal’s subsequent analysis dealt with the applicant’s claims on that basis. Importantly, in rejecting the applicant’s claims to persecution, the Tribunal’s analysis and findings do not depend on any view as to the applicant’s appearance. Even when the Tribunal focussed on how the applicant is identified (whether as a Roma or not), and perceived (CB 293.3 to CB 293.7) its focus was on what is contained in the applicant’s passport, citizenship and identity documents, and that he did not live in a Roma encampment.
The applicant’s complaint that this “untrue statement” (that he is blond in appearance) shows bad faith on the part of the Tribunal is also not made out. That part of the hearing where the Tribunal made the comment reveals that, in context, the comment was aimed at the applicant’s appearance (as perceived by the Tribunal). The applicant had the opportunity to respond and both he and his adviser did so. Nor is the comment in any way derogatory, demeaning or insulting. Even if the Tribunal was wrong in its description of the degree of the applicant’s complexion it does not in my view constitute evidence in all the circumstances of bad faith or bias (or apprehended of bias). In all the circumstances therefore, I cannot see that the Tribunal's statements as to the applicant's complexion, blond or otherwise, on their own, can constitute conduct which it can be said amounts to the Tribunal acting in bad faith. Clearly and ultimately the Tribunal accepted the applicant's claims as to his ethnicity. As to whether this exchange unsettled the applicant such that he was not able to fully present his claims I will deal with below when I address the issues as revised in the applicant's affidavit of 5 July 2005.
The applicant also complains that the Tribunal's way of providing information was “very unfair”, and that the “presiding member told lies”. The applicant again relies on what occurred at the hearing and claims specifically that during the course of the hearing the Tribunal reiterated that Roma had not been subjected to any harm by police in Lithuania. The applicant specifically refers to T5.9:
Tribunal: “Well, sir, I haven’t been able to find any independent evidence to tell me that the Lithuanian police target the Roma.”
The applicant also refers to the “third paragraph” at T7. The third paragraph appears to be the applicant's own statement and not a statement made by the Tribunal. In context, the complaint could be about the next paragraph as the applicant also subsequently makes reference to the “fourth” paragraph which appears to be a lengthy presentation by the Tribunal of independent country information available to it. In any event, what the applicant appears to be arguing is that during the course of the hearing the Tribunal made statements which “misrepresented” the independent country information on which the Tribunal said it relied. This dealt with generally available information about Roma in Lithuania, and the police. He also claims that this was “contradicted” by way of information provided by the Tribunal in the s.424A letter that indicated Roma had been subjected to harassment, physical assaults by police, suffered varying degrees of discrimination and racist attacks and threats. This complaint appears to mirror the complaint made by the applicant's adviser during the concluding part of the hearing when he accused the Tribunal of misrepresenting what was in the independent reports available to it. In particular he accused the Tribunal of “forgetting” to mention “lots of relevant issues”. He also said that the Tribunal had provided “bogus information” and did not rely on information in documents on which the Tribunal said it would rely and in fact served to contradict what the Tribunal was saying.
I cannot see that on what is before me this complaint, either as a complaint of bad faith or bias on the part of the Tribunal, or as some sort of error leading to jurisdictional error, can be made out. In relation to the applicant's complaint that the Tribunal stated that it was not able to find any independent evidence (T5) indicating that the Lithuanian police target Roma, this statement by the Tribunal needs to be clearly seen in the context of the course of the hearing that flowed around it, and of which it was part. Clearly the Tribunal was focusing at this part of the hearing on the claim made by the applicant at about T5.6 that, following his return to Lithuania in July 2002, the police started specific persecution of his family, and started to pursue criminal charges against his family. It was at this point that the Tribunal was clearly exploring with the applicant his specific claims of harm from the police. It is clear that in particular, from what transpires at the middle of T6, that the Tribunal was making a reference to the absence of independent information before it of the police targeting Roma people outside the Roma encampments. It was clearly for this reason that the Tribunal went into some detail with the applicant at T6 to establish that he lived in a “normal suburb” outside of the Roma encampments. It was the applicant's claim before the Tribunal that although he lived outside of a Roma encampment, in what he described as a “normal suburb”, that the police targeted him and his brothers, not because they were interested particularly in them at such, but that it was a “general action against Roma people”. The applicant claimed that they were targeted in that way by the police because of their Roma ethnicity, and because it was a “normal” act performed by police against the Roma community. It was clearly in this context that the Tribunal reported, as it had reported elsewhere in its decision record, and indeed as it had put to the applicant in its s.424A letter (and this is confirmed by the applicant himself in his complaint now) that although there had been harassment of Roma people from Lithuanian police (CB 293.9) there was nothing before the Tribunal to show that the police would have routinely targeted Roma people living outside of Roma encampments, particularly in the circumstances put forward by the applicant. However, for the reasons which it gives, the Tribunal further found that it was satisfied that even though such conduct by the Lithuanian police, that is, accusing a person of involvement in criminal activity and conducting raids, indicated police harassment, it did not in the circumstances put forward by the applicant amount to persecution as required by s.91 of the Act. This was a finding on the material before, that as I have said before, was clearly open to the Tribunal to make.
The Tribunal's position was very clearly put to the applicant at the hearing. At T7 the Tribunal, in the context of discussing independent information available to as it applied to the applicant's circumstances, said:
Tribunal: “…Indeed, it is interesting to know that the European Union most recent report says that there have been no formal complaints of discriminatory behaviour on the part of Lithuanian Law Enforcement officials against the Roma. But there have been reports on police targeting Roma communities discriminately. Now what the information tells me, as does these other reports that I have before me, that Roma who live in Roma communities suffer forms of discrimination and harassment. But it doesn't tell me, sir, that Roma who live in normal…in a street in Vilnius, who mind their own business and they live there in the street amongst the whole of the Lithuanian community, are targeted by the Lithuanian police, which is what you are trying to tell me. Furthermore, what this report tells me, is that complaints of unlawful behaviour on the part of Law Enforcement officials, complaints can be lodged with police, they can be lodged with the Court, they can be lodged with the parliamentary committees. So, you see, sir, the independent evidence doesn't support what you are saying.”
On what is before me it is clear that the applicant and his adviser have not focused on the distinction that the Tribunal was trying to draw at the hearing with the applicant, which was subsequently reflected in its “Findings and Reasons”, between the police attitudes and actions against Roma who lived in Roma encampments, and those who lived outside of those encampments, in amongst the general community. The Tribunal's statement in this regard was quite clear. The applicant's adviser clearly put to the Tribunal that its presentation of the information was “misleading” and “bogus”. The applicant and his adviser either did not understand or did not agree with the critical distinction drawn by the Tribunal between information about police harassment of Roma people, in general, and specifically that such harassment occurred in the Roma encampments. In respect of this situation the Tribunal said that it could not find independent evidence to support the applicant’s claims that generally the police and the state target Roma people who live outside the encampment. The applicant and his adviser were given the opportunity to address this issue by way of the Tribunal's s.424A letter which the adviser, on behalf of the applicant, took up. The adviser variously put forward his disagreement with the Tribunal's position. Further, it is quite clear that when the Tribunal turned its mind to consider whether, as it looked to the future, there was a real chance that the applicant would suffer persecution should he return to Lithuania, having found that the applicant did not have a well founded fear of persecution when he left Lithuania, the Tribunal looked to see whether Roma or Roma Russians faced a level of discrimination of harassment to be at risk of such persecution (CB 296.2). In this regard the Tribunal noted the independent evidence before it that indicated that ethnic Russians do not suffer discrimination or harm in Lithuania, but that official and societal discrimination against Roma existed in Lithuania. The Tribunal's decision record shows an extensive reporting of relevant factors from a number of reports. The findings by the Tribunal were based on its view that the independent evidence indicated over recent years that Lithuania had taken a number of steps to combat racism and intolerance (CB 297.4), and that it had a system of law which made the attacks and excess by state officials punishable, and that it had law-enforcement agencies that would enforce those laws together with an independent judiciary where members of the judiciary were accountable for their decisions on appeal (CB 297.5). In all, there was sufficient material before the Tribunal to conclude that in all the circumstances adequate and effective practical protection from persecution was available to the applicant. This finding was open to it on the material before it. None of this indicates bad faith or bias on the part of the Tribunal, nor is its decision affected by jurisdictional error in this regard.
The applicant also complains that the Tribunal “turned a blind eye” to the applicant's surname and focused attention on his first name (which was a Russian name), and the fact that the applicant's passport showed his nationality as a Russian. The applicant's complaint in this regard is contained in his first outline of submissions of 26 May 2005, but is not pursued in his submission on which he said he wanted to rely and which he presented at the hearing before me. In any event, the applicant's complaint in this regard again fails for similar reasons as to those set out above in relation to “appearance”. Again he seeks to elevate statements made by the Tribunal at the hearing it conducted with him (which he says were made at T3 and T4 of the Transcript of the hearing with the Tribunal) to the status of findings. The applicant claims that the Tribunal “walked away from” an ignored evidence that he would be identified as a Roma due to his Roma surname, and that he would therefore be regarded as a person who has been, and would be, at the very least discriminated against in Lithuania. This claim is not made out on the material before me. The Tribunal clearly accepted that the applicant was at least partly of Roma ethnicity, and was in fact a mixture of Roma and Russian. There is nothing in its “Findings and Reasons” to indicate that the Tribunal relied on the applicant's name (that is his Russian first name) and ignored the applicant's surname (his Roma sounding surname) to in any way base its adverse findings. The Tribunal looked at the applicant’s claims both before 1996, and after July 2002 when he returned to Lithuania, in the context that the applicant was a Roma Russian and in the context that he was Roma. In relation to the pre-1996 situation the Tribunal examined the applicant's circumstances as if he were a Roma Russian in the context of whether the applicant had suffered discrimination in relation to education, employment and the general situation facing Roma communities. The Tribunal did report on the applicant’s claims that he was identified as Roma in his documents, but found as the applicant himself confirmed, that the applicant’s Lithuanian passport did not contain any identifier that the applicant was an ethnic Roma. In fact it stated that he was an ethnic Russian. It further looked at the applicant’s claims that there were other documents and other ways that the authorities would have of obtaining this information (that he was an ethnic Roma) and that “it is on his papers”, but noted that he could provide no evidence to support this claim and nor could the Tribunal find any reports of independent country information to show anything to the contrary, other than the indication that most Roma do not have personal identification documents and the other independent evidence (CB 293.6) that indicated that a number of Roma who had lived in Lithuania for a long time were not in possession of Lithuanian citizenship. The Tribunal noted that the applicant had both Lithuanian citizenship and a Lithuanian passport. Nor was the issue of the applicant's name (whether the first or the second name) used in any critical way adverse to the applicant in looking at the applicant's situation were he to return to Lithuania in the near future in the Tribunal’s analysis as revealed in its “Finding and Reasons”. Clearly again the Tribunal considered the applicant's situation both as an ethnic Roma and as an ethnic Russian and as both. This complaint, in all aspects in which the applicant has put it forward, is not made out.
The applicant also complains in his latest written submission that he stated to the Tribunal (at T5 of the hearing) that his brothers had been arrested and had spent two months in prison without any reason. The applicant now complains that his brothers did live in the Roma encampment in “Kiltimai”, and that the Tribunal failed to take that into account and to relate that to the applicant's fears. However, there is nothing before me to show that the applicant ever made the claim to the Tribunal that his brothers live in the Roma encampment. I note in particular that at T6 the applicant specifically addressed the issue raised by the Tribunal that Roma people live in Kiltimai and that he did not live there and lived elsewhere. What follows shows the applicant saying that he lived in a “normal suburb”, and then the Tribunal asking the applicant why the police would particularly be interested in the applicant and his brothers. The applicant’s answer was that the police were not interested in him and his brothers as such, but that it was a general action against the Roma people. There is nothing in all of that, despite a specific opportunity, to show that the applicant said that his brothers were in the Kiltimai district. Nor is there anything in any subsequent submission by the applicant's adviser to that effect. This complaint also does not succeed.
The applicant specifically invited the Court by way of his latest written submission to examine the Tribunal's statements contained in its decision record variously at (CB 282) that Roma had been subjected to discrimination but not persecution, that Roma were subjected to harassment and physical assaults by the police (CB 282) and (CB 290), that they suffered varying degrees of discrimination (CB 282 and CB 283) and suffered from racist attacks, violent behaviour and threats (CB 291). All of these are references to information that was before the Tribunal, and specifically referred to in the s.424A letter sent by the Tribunal to the applicant. The applicant now appears to be seeking from the Court some sort of declaration that this information constitutes persecution within the meaning of the Convention. It is of course not the role of the Court to make findings in relation to independent information before the Tribunal, beyond ensuring that the Tribunal complied, or did not breach, its statutory or other legal obligations in assessing the applicant’s claims. Nor is it the role of the Court to make declarations about whether this independent information may or may not in any general sense constitute persecution within the meaning of the Refugees Convention. At best, I saw this as a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
I saw the applicant's second complaint, relating to the Tribunal providing him with misleading and incorrect information and evidence (which I have already dealt with above), using offensive body language (which I will deal with below) and its constant interruptions of the applicant (I will also deal with those below) as being further matters going to the issue of the Tribunal acting in bad faith or with bias.
As I stated above I provided the applicant, after carefully explaining the need for evidence to support the claim of bad faith or bias on the part of the Tribunal and indeed noting this issue was emphasised by Mr. Bromwich in submissions to me which he sought that I specifically direct the interpreter to translate carefully for the applicant, with further time to file evidence or submissions in this regard. The applicant has subsequently filed in response a sworn affidavit containing three substantive paragraphs. The first paragraph asserts that the Tribunal repeatedly used “insulting gestures” and that this taken together with the “untrue statements” relating to his appearance, lack of independent evidence and baseless allegations regarding his credibility, resulted in his inability to address matters relevant to his application for a protection visa. Further that he was confused, frustrated, and had difficulties responding to the “presiding member’s untrue accounts”. I note again that I emphasised with the applicant the need to provide material to support his allegation of bad faith on the part of the Tribunal and that it would need to be done in a proper evidentiary way.
The first paragraph of the applicant’s affidavit presents a great difficulty for the applicant in terms of its admissibility. Clearly, as Mr. Bromwich submits, it is in the form of conclusions, rather than observable facts. To the extent that the applicant's statement that the Tribunal was repeatedly using insulting gestures can be said to be an opinion, then s.76 of the Evidence Act1995 (Cth) provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. However, s.78 of that Act provides that the opinion rule does not apply to evidence of an opinion expressed by a person if first, the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and second, evidence of the opinion is necessary to obtain an adequate account or understanding of the persons perception of the matter or event. However, in terms of what the applicant has put before me, even if I was to admit into evidence his opinion alone that the Tribunal made insulting gestures, in the absence of anything else, I cannot see that this would assist the applicant in showing bad faith on the part of the Tribunal, nor bias for that matter. The applicant has provided absolutely no evidence either by himself or through any other party present at the hearing before the Tribunal (his adviser or the interpreter for example) to establish that this opinion is based on what the applicant actually saw, heard or even otherwise perceived the Tribunal was doing. Nor can it be said, in the absence of anything else, that the opinion, or more particularly the evidence of the opinion, is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event. On what the applicant has put before me, and looking in the context of all of the material before me, the applicant's opinion evidence must be capable of rationally affecting the assessment of the probability of the existence of whether the Tribunal made insulting gestures or not. There is nothing put before me to show that the applicant's opinion in this regard was rationally based, and in those circumstances, I cannot be satisfied that this test of the evidence can be satisfied. On that basis the evidence, if indeed the applicant's opinion can be seen as evidence, is not admissible.
In relation to the other claims made by the applicant in this paragraph I have already dealt with the issue of appearance and the independent information and found in any event that there was no basis to support the applicant’s claims. Again in terms of admissibility these matters are presented as the applicant's conclusions, but even if admitted do not for all the relevant reasons set out above assist the applicant. Further, in relation to the claim of the Tribunal’s “baseless” allegations regarding the applicant's credibility. As presented this lacks any real specificity but appears to be aimed at the Tribunal’s failure to accept the applicant’s claims as amounting to a real fear of persecution. In this regard it is clear, in light of all of the above that at the hearing (as revealed by the Transcript) the Tribunal indicated to the applicant that it could not accept some of what he was saying and tested aspects of the applicant’s claims. I cannot see from a reading of the Transcript that there is any error in what the Tribunal has subsequently done as set out in its “Findings and Reasons”. The fact that a Tribunal puts to an applicant that it does not believe what he is saying or does not accept some claims is all consistent with its duty to conduct a proper and thorough examination of the applicant’s claims and to provide an opportunity for him to support or explain further those claims. It is trite to say that a Tribunal does not have to believe any or all of the applicant’s claims. The applicant would have had the opportunity to have this explained to him by his adviser. In any event in the case before me the Tribunal’s findings were all open to it on what was before it. While the Transcript of the hearing reveals clear instances of the Tribunal indicating that it did not accept or had some concerns with some aspects of what the applicant was saying, the “Findings and Reasons” reveal that its analysis and ultimate finding was not based solely or even predominantly on an adverse credibility finding in relation to the applicant.
Further, the applicant's assertion that all of this resulted in his being unable to address relevant matters in his application, and that he was confused, frustrated, and had difficulties responding, is not supported by any other material before me. Clearly the Transcript, while it shows a vigorous and (as I have already said in some aspects) an unsatisfactory exchange between the Tribunal and the applicant's adviser, does not reveal any failure of opportunity for the applicant to fully set out his claims. In any event, the applicant was given the opportunity to comment on information on which the Tribunal indicated it was going to rely, and indeed the applicant was given the opportunity to comment on the Tribunal's adverse thought processes which went beyond its statutory obligation in this regard. In circumstances where an applicant is represented by a migration agent, and the agent is present at the hearing, it was always open to the agent to have made further submissions and to have addressed the issue that he had difficulties in responding to the Tribunal's questions now claimed. On what is before me therefore, even taking into account the applicant's statement that the “member” made insulting gestures, I cannot be satisfied that this in fact occurred, or that it led to some inability on the applicant's part to present his claims. Nor can the allegations of untrue statements and lack independent evidence on the part of the Tribunal be made out on what has been put before me. Further, the applicant’s initial reliance on the Tribunal’s statement that he was a “blond man, with fair skin” (“blond man”, “light skin”) to show bad faith does in itself give rise to some pause. The applicant claims, and I note that this statement (from the Transcript) was made towards the commencement of the hearing, that he was so upset by this (when taken with the other allegations put in the affidavit) that he was unable to properly participate in the hearing. Throughout the course of the hearing before me and in his written documentation the applicant has made much of this. Even if it was totally untrue, the Tribunal’s statement to him that he was a “blond man” with “light skin”, even taking into account any cultural sensitivities, can hardly be said to constitute an insulting, discriminating or even objectionable statement. It is not in itself, nor even in the context of the applicant’s case, a pejorative term. If the statement was untrue, then a simple and plain response to that effect would in my view have been sufficient to deal with it. It is clear on what has been put before me that the applicant has responded greatly to what is after all a statement of what the Tribunal observed. It is open to say that the applicant may have overreacted. But clearly even if the applicant was confused and frustrated by this, he and his adviser had every opportunity to put anything further and relevant to the Tribunal subsequent to the hearing. To some extent the adviser did do so. I cannot see that the Tribunal’s statement denied the applicant the opportunity to put his case.
The second paragraph of the applicant’s affidavit asserts that the interpreter at the hearing before me was also the interpreter at the Tribunal's hearing, and that the interpreter stated during a conversation with the respondent’s Counsel that the presiding member did act in the way that the applicant now asserts. Clearly this is hearsay and is inadmissible. It was always open to the applicant to have put forward direct evidence from the interpreter, or for that matter his migration agent who as also present at the Tribunal’s hearing, and to have given the respondent an opportunity to cross examine. He clearly chose not to do so. In any event, to the extent that this assertion has been put forward, it is clearly inadmissible as evidence before me.
The third paragraph, as Mr. Bromwich submits, is in the nature of submissions, and is therefore not the proper subject of evidence and should be rejected on that basis. In any event, in dealing with the claim relating to s.420(1) of the Act (which is also raised in the applicant's second written submissions to the Court), s.420 does not prescribe any particular procedure to be observed by the Tribunal (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [49], [77], [108]-[109], and [179]). Clearly there is a requirement on the Tribunal, in carrying out its function, to provide a mechanism of review that is amongst other things fair and just. The Tribunal must act according to “substantial justice and the merits of the case”. Merely making reference to this section does not “prove” the applicant's allegations. As I put to the applicant at the hearing before me, allegations that the Tribunal did not act fairly, or in good faith, must be shown by evidence put before the Court. A mere reference to this section without other evidence which can be substantiated, is not sufficient for the applicant to make out a breach of this section, or bad faith or bias on the part of the Tribunal.
The Tribunal clearly considered the applicant's claims as put by the applicant. In particular, that he was a Lithuanian of Roma Russian ethnicity and that he had been subject to police action on three occasions when they raided his home. The applicant had the benefit of a migration adviser before the Tribunal. The Tribunal invited the applicant to a hearing, put to the applicant independent information available to it, which ultimately was adverse to the applicant's claims, and further put in writing this information, and indeed put some of its adverse thought processes flowing from this information to him. All the Tribunal's findings in this regard were open to it on the material before it, and I can see no jurisdictional error in relation to the Tribunal's decision. The applicant's allegations of bad faith and/or bias on the part of the Tribunal are not made out. While there are clearly some unsatisfactory aspects flowing from the Transcript of the hearing the Tribunal conducted with the applicant, there is insufficient material before me to establish that the Tribunal acted in bad faith or was biased in how it approached its task. The application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Sybilla Waring-Lambert
Date: 23 February 2006
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