SZESD v Minister for Immigration
[2005] FMCA 883
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZESD v MINISTER FOR IMMIGRATION | [2005] FMCA 883 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 424A(3)(b), 474, 477(1A), Part 4 Division 7
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 54
SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FMCA 284
SZDSJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 160
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
| Applicant: | SZESD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3359 of 2004 |
| Delivered on: | 30 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3359 of 2004
| SZESD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 November 2002 and handed down on
18 December 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 6 June 2002 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZESD”.
The applicant, who claims to be a citizen of India, arrived in Australia on 20 September 2001. On 29 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.2-45) (“CB”). On 6 June 2002 the delegate refused to grant a protection visa (CB pp.57-63) and on 10 July 2002 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.65-69).
The applicant is a Sikh male from the Punjab. The applicant’s wife, son, parents and five siblings reside in India and he has a brother living in the United Kingdom. The applicant claimed he had completed ten years of schooling and obtained a trade qualification. He stated he worked as a self employed farmer in the Punjab from 1983 until March 1993. The applicant claimed he then lived and worked with temporary residence status in the United Arab Emirates from March 1993 to September 2001 (CB p.99).
The applicant’s claim
In a statement attached to his visa application, the applicant claimed that he feared torture and persecution by the Indian Government, Indian police and political farmers if he returned to India because of his membership of the Khalistan organisation. He claimed he became an active member of this organisation which, since “Operation Blue Star” in 1984, sought a separate Sikh homeland from the Indian Government. The applicant claimed to be the President of the district branch of the organisation and that some Sikh activists stayed at his farm house and stored their arms and ammunition. In August 1992 the applicant claimed that police raided his farm house and arrested the applicant and his brother and confiscated some arms and ammunition. While in detention, the applicant claimed he was tortured and then falsely charged with harbouring extremists (CB p.44).
In October 1992 the applicant stated that one of his brothers went to the family farm where he was shot in the leg by plain clothes policemen. In March 1993 the applicant claimed he moved to Dubai but was still of interest to the police. He stated he returned to India on several occasions to determine the situation but was pursued by the police. The applicant claimed the police became aware of his location in Dubai and this led to his moving to Australia in September 2001 (CB p.45).
The Tribunal’s findings and reasons
The Tribunal decided the claim adversely to the applicant based on a number of independent findings (CB pp.106-109):
a)it did not believe critical aspects of the applicant’s claims, nor did it accept his documents as genuine;
b)it found that he could access effective State protection in India;
c)if he were charged and prosecuted on his return to India, this would not be persecution, but simply prosecution in accordance with laws of general application; and
d)it found that it would be reasonable for the applicant to relocate within India.
Application for review of the Tribunal’s decision
On 17 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.That the Tribunal exceeded its jurisdiction by the affirming of the decision made by the delegate of the respondent on 6th June 2002, refusing the applicant a protection visa.
2.Erred in law by acting in contrary to the provisions in Article 1(A) (2) of the 1951 United Nations Convention on the status of refugees.
3.The applicant assert that the Tribunal made a very serious jurisdictional error by concluding that “the Tribunal gives no weight to the documents submitted by the applicant. This is because it is well known that it is very easy to fake documents, or even genuine documents containing false information in India”. (Error included)
On the same date the applicant filed an affidavit sworn on
16 November 2004 that provided factual background to the applicant’s claim to be a refugee and comprised material that had not been directly before the Tribunal.
Litigation history
On 25 November 2004, Andrea Jane Nesbitt, Solicitor appearing for the respondent , filed an affidavit sworn on the same date, setting out a brief litigation history together with a copy of the Court Book which had been originally filed in the Federal Court proceedings (see paragraph (g) below). The brief history of this matter, as provided by Ms Nesbitt, is reproduced as follows:
a)On 29 October 2001, the applicant lodged an application for a protection (Class XA) visa with the Department.
b)On 6 June 2002, the delegate made a decision refusing to grant the applicant a protection visa.
c)On 10 July 2002 the applicant lodged an application for review of the delegate’s decision with the Tribunal.
d)On 25 November 2002 the Tribunal, constituted by Ms Margaret O’Brien, affirmed the delegate’s decision to refuse to grant the applicant a protection visa. The Tribunal’s decision was handed down on 18 December 2002.
e)On 10 January 2003 the applicant’s solicitor filed a draft order nisi and accompanying affidavit in the High Court of Australia, Adelaide Office of the Registry. These proceedings were given the proceedings number A19 of 2003.
f)On 7 February 2003 the Honourable Justice Hayne ordered that the further proceedings in this application be remitted to the Federal Court of Australia.
g)The proceedings remitted to the Federal Court of Australia, South Australia District Registry were given the proceedings number S389 of 2003. On 28 July 2003 the Honourable Justice Selway made a number of orders regarding the conduct of the proceedings.
h)On 18 September 2003 the Honourable Justice Lander ordered that, in the absence of any steps having been taken in accordance with the orders of 28 July 2003, the application be dismissed and that the applicant pay the respondent’s costs.
i)On 17 November 2004 the applicant filed an application for judicial review in the Federal Magistrates Court of Australia at the Sydney Registry. These proceedings were given the proceedings number SYG3359 of 2004.
j)On 23 November 2004 the respondent filed a Notice of Objection to Competency in these proceedings.
Notice of Objection to Competency
On 23 November 2004 the respondent’s solicitors filed a Notice of Objection to Competency in the following terms:
The respondent objects to the jurisdiction of this Court to try this application for judicial review under the Judiciary Act 1903 and the Migration Act 1958, on the grounds that:
1The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (“the Tribunal decision”) on 25 November 2002 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.
2The applicant has not identified any other decision that is sought to be reviewed.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Mr C Jayawardena, Solicitor appearing for the applicant, filed written submissions on 7 June 2005 which contained the following contentions:
a)The Tribunal failed to deal probatively and constructively with his claims because of the mere acceptance of the delegate’s finding as follows:
“That the information indicated that the Khalistan movement was a terrorist movement involved in criminal activities against civilians and law enforcement agencies in India. The delegate noted that if it was accepted that the applicant was involved in illegal activities such as these, that he may face prosecution for a criminal offence rather than persecution for a Convention reason, or the delegate may exclude the applicant under Article 1F of the Refugee Convention.” (Tribunal’s decision at page 5, para 4) (CB p.100)
b)The applicant submitted that the Tribunal’s mere endorsement of a finding of the delegate in the nature given above was a serious derogation of its responsibility as a “quasi-judicial reviewer” under the statute of the Act. The Tribunal failed to assess whether the applicant had committed “serious non-political crimes” in India before he came to Australia seeking refugee status. This was necessary under Article 1F of the UN Convention on Refugees.
c)That the Tribunal was seriously biased or had shown apprehended bias against the applicant’s claims when making conclusions in the nature of the following:
“The Tribunal gives no weight to the documents submitted by the applicant. This is because it is well-known that it is very easy to get fake documents, or even genuine documents containing false information, in India and the applicant appeared not to know much about what had been submitted, from whom and the substance.” (Tribunal’s decision at page 12, para 2) (CB p.107)
d)The applicant submitted that the Tribunal’s allegation that he had submitted fraudulent documents to it to substantiate his claims was a very serious allegation made against the applicant. The applicant stated that in India, mainly in the Punjab, most of the government offices are still operating in an old and primitive way and therefore it was totally contrary to the law that the Tribunal had acted against the Substantial Justice Principle enunciated in the Act, in considering the applicant’s claims.
e)The Tribunal made an erroneous finding to the effect:
“Having considered the applicant’s evidence the Tribunal does not accept that he was a member of the KCF.” (Tribunal’s decision at page 12, para 3) (CB p.107)
f)The Tribunal however accepted:
“However, the Tribunal accepts that the applicant stored weapons on two or three occasions for boys who may have belonged to the KCF or one of the many splinter militant groups active in Punjab at the time. …… The Tribunal also accepts as plausible and consistent with independent country information that the police discovered the weapons, confiscated them and arrested and mistreated the applicant and his brothers in August 1992.” (Tribunal’s decision at page 13, para 2) (CB p.108)
g)The applicant submitted that the Tribunal failed to properly weigh his claims and that it contradicted its own findings which were highly detrimental towards the claims submitted by the applicant for refugee status in Australia. Hence the applicant submitted that this was serious jurisdictional error committed by the [Tribunal].
Respondent’s submissions
Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
First Ground of Review
a)The applicant had not identified how the Tribunal acted contrary to Article 1A(2). The Tribunal set out in full the definition of a “refugee” under Article 1A(2) (CB p.97.8). It also set out the law in unobjectionable terms as to the meaning of “refugee” under Australian law (CB pp.97-99). Nothing in the Tribunal’s reasons indicated that it acted in any way “contrary” to Article 1A(2). This ground of review should be rejected.
Second Ground of Review
b)The applicant had not identified the nature of the jurisdictional error he asserted that the Tribunal committed in rejecting his documents. There were no particulars to this ground of review.
c)Section 422B applied in this case, the application for review to the Tribunal being lodged on 10 July 2002. The documents were not “information” to which s.424A applied, as they fell within the exception provided by s.424A(3)(b), being information provided by the applicant for the purposes of the application. In the respondent’s submission, s.424A covered the field in relation to the obligation of the Tribunal to put to the applicant adverse information. Even if this submission was rejected, it would seem that the applicant was afforded procedural fairness in relation to these documents at the hearing (CB pp.102-104).
d)The applicant appeared to be complaining about the Tribunal’s findings of fact in relation to the documents he submitted. To engage in fact finding about the merits of the applicant’s case was no part of the function of the Court in dealing with an application for relief under s.39B of the Judiciary Act 1903 (Cth). It was necessary for the applicant to establish jurisdictional error. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (“NAHI”) at [10]. It is not a jurisdictional error to make a wrong finding of fact: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs (“MZWBW”) at [28]. This ground of review should be rejected.
No Reviewable Error
e)
The Tribunal’s decision did not disclose any reviewable error. The applicant had not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos:
R v Hickman; Ex parte Fox and Clinton. The applicant had not therefore demonstrated any entitlement to relief. No grounds for relief were otherwise apparent on the material before the Court.
Competency
f)It is accepted that the time limit prescribed by s.477(1A) by its terms applies only to a “privative clause decision”. A decision infected with jurisdictional error will not be a privative clause decision: Ngu v Minister for Immigration & Multicultural & Indigenous Affairs at [8]. Before the Court can uphold the objection to competency, it must be satisfied that there is no jurisdictional error. In the respondent’s submission, no such error was present in this case.
Discretionary refusal of relief – delay
g)Even if the applicant had demonstrated some jurisdictional error (and it was submitted that he had not), in the respondent’s submission, relief should be refused due to the prolonged and unexplained delay of some fourteen months between the conclusion of his prior Federal Court proceedings, and these proceedings. There was no explanation, let alone a satisfactory explanation, of the reasons for this extended delay.
h)This was a second set of proceedings that this applicant commenced seeking judicial review of the Tribunal’s decision. The applicant was, therefore, clearly aware of his right to seek judicial review of the Tribunal’s decision. This made the delay in commencing these present proceedings all the more inexcusable.
i)The Court should, in the exercise of its discretion, refuse to grant relief by reason of the unexplained and lengthy delay in the commencement of proceedings. Whilst the respondent does not point to any specific prejudice suffered by it as a result of the delay, it submitted that it was inimical to the wider public interest to permit a party such as the applicant to sit on his hands before deciding to seek judicial review. There was, it was submitted, a matter of public policy at play, as it was clearly in the wider public interest that there be finality in administrative decision making, particularly with respect to decisions pertaining to a person’s migration status. If an administrative decision is to be challenged, it ought, in the ordinary course, be challenged promptly: SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) at [28] per Driver FM; SZDSJ v Minister for Immigration & Multicultural & Indigenous Affairs at [14]-[17] per Smith FM.
Reasons
Under the first ground, the solicitor for the applicant claimed that the Tribunal failed to deal probatively and constructively with the applicant’s claims because the Tribunal member clearly endorsed the findings of the delegate, resulting in a serious derogation of its responsibilities. The submission was that the Tribunal failed to assess whether the applicant had committed “serious non-political crime” in India before seeking refugee status in Australia. If it was established that the applicant was persecuted for illegal activities of a criminal nature rather than persecution for a Convention reason, the applicant may be excluded from refugee status under Article 1F of the 1951 UN Convention for Refugees. That Article states:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.”
I do not accept the applicant’s argument that the extract quoted in the written submissions at paragraph 13(a) above conveyed the finding of the Tribunal failed to deal probatively and constructively with the applicant’s claim and further the method in which the extract is presented is misleading. The preceding sentence of that extract stated:
“The delegate sent to the applicant and his adviser independent country information for comment and outlined concerns about the credibility of the applicant’s claims.” (Tribunal’s decision at page 5, para 4) (CB p.100)
The paragraph then continued with an explanation as to why the material was sent for comment:
“That information indicated that the Khalistan movement was a terrorist movement involved in criminal activities and law enforcement agencies in India.” (Tribunal’s decision at page 5, para 3) (CB p.100)
The Tribunal then continued stating the significance of such a finding and the consequences under Article 1F of the Refugee Convention. This was followed by a statement identifying the source of that material which had been supplied to the Tribunal member. It also noted that there had been no response to the enquiry by either the applicant or his adviser. The delegate did make a finding in respect of this information in his decision but that was not relevant to the argument that was trying to be made out here.
The applicant did not fail in his application before the Tribunal for reasons of Article 1F of the Refugee Convention. The Tribunal did nothing more than mention that this would be a consideration that would have to be taken into account if evidence of that nature was in existence. The Tribunal was faced with an applicant making a claim that he was a member and office holder of a terrorist organisation and therefore the Tribunal had to be mindful in its deliberation of the significance of such a claim. This was brought to the applicant’s attention during the Tribunal hearing. The decision indicated that this information was brought to the Tribunal’s attention and in turn the Tribunal put the information to the applicant during the hearing. However, the Tribunal did not raise the issue in its findings, presumably because it made no positive finding in that regard. In such circumstances, the Tribunal was not obliged to refer to every piece of information it considered and subsequently put aside because it did not hold a significant element to the ultimate finding: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs per French, Sackville and Hely JJ at [46].
The Tribunal set out the definition of “refugee” in its decision as the criteria against which the applicant was being assessed. The exclusion as contained in Article 1F of the Convention was not referred to as an assessment criteria in the Tribunal’s findings and the applicant was not denied refugee status on the basis of that exception. The Tribunal was only required to carry out such an assessment if it considered evidence existed that may invoke Article 1F. In its absence, it was unnecessary to suggest that the Tribunal determine whether the acts the applicant alleged were “serious non-political crimes”, as the Tribunal had either characterised the alleged offences as being political in nature, not serious or not to have taken place at all. This ground cannot be sustained.
The applicant’s second ground was that the Tribunal was seriously biased or showed apprehended bias against the applicant’s claims and referred to a passage from its decision in support of that contention, to which I will return. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural & Indigenous Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The scope of an allegation of actual bias and the burden to prove that allegation solely from the face of a decision is rare and exceptional: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs per von Doussa J at [38]:
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing, or a failure to enquire into and to obtain readily available and important information relating to central matters for determination an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
No written or oral submissions were made to the Court in support of the allegation of bias nor did the applicant provide a copy of the Tribunal hearing audio tape or transcript. In the circumstances I will not further entertain an allegation of bias on the part of the Tribunal member.
In support of the remaining issue of apprehended bias, the written submissions of the applicant referred to a passage in the Tribunal’s decision which was claimed to support this contention. The passage relied upon is as follows:
“The Tribunal gives no weight to the documents submitted by the applicant. This is because it is well-known that it is very easy to get fake documents, or even genuine documents containing false information, in India and the applicant appeared not to know much about what had been submitted, from whom and the substance.” (Tribunal’s decision at page 12, para 2) (CB p.107)
The Tribunal then proceeded to explain the statement in respect of three documents submitted by the applicant in support of his case (Tribunal’s decision at page 12, para 2) (CB p.107). The first of the documents was an affidavit of the applicant’s home village headman (attested by a Notary Public – Jallandbar 4 September 2002 (CB p.75)) in which the Tribunal identified the following defects or anomalies:
a)it was unsigned;
b)it was very general in its references to the applicant’s family and his home;
c)it stated the applicant “is an active member of the KCF” (this was contrary to the applicant’s evidence that he had not lived in his home village since 1992 and that he had no association with the KCF for a decade.
In respect of the second document, the lawyer’s letter (Law Office of Maninder S Chavan, Phillaur dated 3 September 2002 (CB p.72)), reference was made to issues directly relevant to the applicant’s visa application and appeared to have been produced for that purpose.
The third document, a “Warrant/Arrest” from a judicial magistrate
(Sh Manjit Singh PCS Judicial Magistrate 1st Class Phillaur (CB p.77)) dated 3 September 2001 which referred to a First Information Report dated 3 November 1992 to a person with the applicant’s name. That document, requiring the applicant to appear before a judicial magistrate by 30 October 2001, raised the following issues:
a)it was a very poor quality document;
b)it had been issued nine years after the alleged incident;
c)other evidence available suggested the case was resolved and closed many years before the issue of the warrant;
d)the existence of the warrant was contrary to the evidence given by the applicant that he was not formally wanted by the authorities.
These observations made by the Tribunal member in the decision would suggest that the warrant was a fake document while the other documents may be genuine but clearly contained false information.
I will deal firstly with the issue of apprehension of bias in respect of the way that the Tribunal member dealt with the three documents.
In cases where apprehension of bias is raised the test to be applied is found in Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow JJ at [27]-[31]:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.”
The test is also found in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs per Allsop J at [14]:
“The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].”
In respect of the Tribunal’s decision, the question to be asked was, “Would a fair minded observer reasonably apprehend that the Tribunal member did not bring a fair and unprejudiced mind to these proceedings?”. Consideration must be given to whether the documents submitted by the applicant in support of his case would appear to be genuine to the fair minded observer. As indicated above, each of the three documents contained serious defects on their face. The submission made by the solicitor for the applicant was that the government offices operating in the Punjab were old and primitive, in a technical sense, and therefore would not be subject to fraudulent activities in the preparation of documents. To the contrary, the defects immediately identifiable on the face of these three documents were not related to the technical production of the document itself but rather the content of the document raised the suspicion. I do not accept that the Tribunal member in dealing with these documents demonstrated an apprehension of bias nor can that be maintained in respect of the extract of the decision referred to in the applicant’s written submissions.
The other component of the applicant’s second ground was that the Tribunal made an erroneous finding in that it gave no weight to the documents submitted by the applicant. The question raised was whether the applicant was afforded procedural fairness in relation to these documents at the hearing. Division 4 of Part 7 of the Act relates to “review of protection visa decisions – conduct of review” and the section that is significant to this case is s.422B which states as follows:
Section 422B
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
Section 422B applies in this case as the application for review to the Tribunal was lodged on 10 July 2002 which was after the amendments to the Act introducing this section. It was submitted that the relevant issue was about a breach of s.424A and that the documents were not information to which s.424A applied as they fell within the exception provided by s.424A(3)(b) being information provided by the applicant for purposes of the application.
Although the solicitor for the applicant did not raise the point it appeared the issue he was complaining about was the Tribunal’s findings of fact in relation to the validity of the applicant’s documents. However, it is not a function of this Court to engage in fact finding about the merits of the applicant’s case. I accepted the respondent Counsel’s submission that it was outside the boundaries of this Court’s role to endeavour to comprehend errors of fact by the Tribunal in assessing the merits of the case: NAHI per Gray, Tamberlin and Lander JJ at [10]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
Further, it is not a jurisdictional error to make a wrong finding of fact: MZWBW per Black CJ, Sundberg and Bennett JJ at [28].
I agreed with the submissions of the Counsel for the respondent that the Tribunal’s decision did not disclose any reviewable error or that any grounds for relief were apparent on the material before the Court. The absence of any jurisdictional error permits the Court to uphold the objection to competency. In the circumstances, it was unnecessary to consider the issue of delay as there was no requirement in respect of a consideration of a discretionary refusal of relief in these proceedings.
It was noted that there had been a prolonged and unexplained delay following the conclusion of the Federal Court proceedings (Proceedings No: S382 of 2003 which was dismissed on 18 September 2003 by the Honourable Justice Lander on the grounds that no steps had been taken in accordance with the orders made by the Honourable Justice Selway on 28 July 2003). The application was dismissed and the applicant was ordered to pay the respondent’s costs. It was not until 17 November 2004 that the applicant filed an application for a judicial review in the Federal Magistrates Court of Australia, being these proceedings. The extent of that unexplained delay was a period of approximately fourteen months between the decision of the Honourable Justice Lander and the filing of the proceedings in this Court. I accepted the respondent’s submissions in paragraph 14(i) above in respect of the exercise of the Court’s discretion to refuse to grant relief by reason of unexplained and lengthy delays in the commencement of proceedings.
Conclusion
The applicant in these proceedings has failed to identify any ground of review of the Tribunal’s decision. As there is no evidence of jurisdictional error, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 June 2005
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