SZEVF v Minister for Immigration
[2005] FMCA 1230
•7 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1230 |
| MIGRATION – RRT decision – Afghan fearing persecution by fundamentalists – finding that fears not well‑founded – no error found – no apprehended bias nor failure of procedural fairness. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 427(6)(b), 474(1), 483A, Pt.8
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
| Applicant: | SZEVF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2080 of 2004 |
| Judgment of: | Smith FM |
| Hearing dates: | 1 and 10 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr M Wigney |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is included as second respondent.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2080 of 2004
| SZEVF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks to set aside a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 May 2004 and handed down on 16 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The applicant is a national of Afghanistan who arrived in Australia on a temporary spouse visa in February 2002. He had married an Australian in 2000 while residing in Pakistan as a refugee from the Taliban. Unfortunately, his marriage broke down, he separated from his wife in June 2002, and he became ineligible for a permanent residence spouse visa. Medical evidence on the file suggests that he suffers from “major depression and anxiety” linked to his current circumstances. He was assisted by a migration agent when his applications were before the delegate and Tribunal, but had no apparent assistance from legal representation in his present application. However, he intelligently focused his submissions on why he thought that the Tribunal’s decision was defective. I have carefully considered his arguments and have also endeavoured to identify other arguments which could be made on his behalf. Unfortunately, for reasons given below, I have not been able to find jurisdictional error affecting the Tribunal’s decision.
The applicant’s concerns focused upon procedural fairness at his hearing before the Tribunal, but he did not obtain a transcript. When the matter was first listed for hearing he was unable to address his submissions to a transcript which had been prepared by the first respondent. I adjourned the hearing to allow him to prepare arguments which did this, and he presented these at the resumed hearing. However, he maintained a request that I should also listen to the whole tape recording of the hearing. Contrary to my usual practice, I agreed to do this, and have done so. This has confirmed the opinions I formed from reading the transcript, that the Tribunal did not conduct the hearing in a manner giving rise to a reasonable apprehension of bias, and that it did give the applicant a reasonable opportunity to give his evidence. I shall examine his specific complaints about procedural fairness below.
The applicant’s other complaints in the documents he filed and in oral submissions sought to argue with factual findings by the Tribunal in a manner which did not raise any head of jurisdictional error. These concerns can be found in the documents he has filed, and I do not consider that I need to deal with them individually. In my opinion, the applicant has not raised any arguable jurisdictional flaw in the reasoning followed by the Tribunal.
The applicant’s claims
The Tribunal’s statement of reasons is a lengthy and complex document. It mixes the recounting and assessment of the applicant’s claims with an examination of general country information providing the background of changing events in Afghanistan over the last decade. This assists a reader of the reasons, but is not usefully repeated by me. I consider that it is unnecessary for me to do more than provide a brief summary of the refugee claims which were made by the applicant and how they were addressed by the Tribunal.
In a statement accompanying the visa application, the applicant said that he was born in 1972 in a family who resided in Kabul. The family belonged to the Tajik ethnic group, and were Shi’a Muslims. His father was “a famous and known face for his peaceful and positive activities”, and held weekly religious meetings at their home where he preached against fundamentalism and encouraged tolerance. However, after the removal of the pro‑Soviet Najibullah regime in 1992, his father was arrested by a fundamentalist group in the Mujahedin, accused of “being an atheist”, and advised to leave Afghanistan. His family fled to Islamabad, and the applicant and his brother followed them into exile after themselves experiencing a period in detention. He never returned, but his brother and father went to Kabul to rebuild their house in late 2001, after the Taliban was overthrown. Nothing was heard of them until 2003, when “one of our relatives came from Kabul, and told my family that the same group who regained the power after the Taliban captured my father and brother. He added that they killed my father, and took my brother to an unknown place”. The applicant now feared that if he went back “there is some fundamentalist local commanders and militias in Afghanistan who had forced us to leave Afghanistan, and have regained the power after Taliban’s regime will harm, mistreat, and even kill me”.
The delegate refused the application on 7 October 2003. His reasons contained an assessment of “the current security situation in Afghanistan”, and concluded that the applicant did not come within a list of seven “profiles” which “might be at particular risk of violence, harassment or discrimination”. These included “persons associated or perceived to have been associated with the Communist regime, as well as others who have campaigned for a secular state”.
After the applicant appealed to the Tribunal, his agent presented a statutory declaration by the applicant which implicitly sought to bring his circumstances within this “profile”. He claimed at school to have joined the Youth Democratic Organisation branch of the Peoples Democratic Party of Afghanistan, and to have “constantly participated in anti Mujahideen campaigns in Kabul”. He said that his father had founded his preaching house as a supporter of the government of Dr Najibullah, and to assist that government had “gathered information about elements who were seeking to engage in subversive activities against the Saur Revolution, having links with extremist Islamic fundamentalists”. He also gave a more detailed account of his father’s death, by claiming that he was taken to the headquarters of a named fundamentalist group whose leader remains prominent in Afghanistan, and that people had “confirmed” that his father was killed by that person. He also said that his marriage had failed because his wife’s family had accused him “of not following Islamic principles”.
The applicant was questioned by the Tribunal about these claims during the hearing, and I shall consider aspects of the questioning below.
The Tribunal’s reasoning
In its “Findings and Reasons”, the Tribunal said that it “accepts that the Applicant comes from a very religious family, as he initially claimed, and accepts that his father was quite well‑known as an intellectual and religious figure in the years before he left Afghanistan for Pakistan”. It accepted that the father “ran a preaching house”, but did not accept that this “either was or would have been seen as an instrument of Najibullah government propaganda”. Its rejection of this claim appears to have derived from its assessment of the applicant’s evidence against general information about that government.
The Tribunal accepted that the father, the applicant, and his brother had been briefly detained “by forces working with or alongside the Mujahedin after 1992”. However, it concluded that “their release leaves the Tribunal confident that they were simply not of interest to (the named fundamentalist group) or the Mujahedin” (the Tribunal’s emphasis).
The Tribunal made key findings which also rejected the applicant’s claims concerning the death of his father and his fears of persecution by the named fundamentalist group:
Given that the Applicant, his brother and father were all released by the middle of 1994, the Tribunal can find no basis in the Applicant’s pre‑4 May 2004 claims for accepting that the Mujahedin or (the named fundamentalist group) had any serious interest in him or his family, including his father, either up to the time they left Afghanistan in 1994 or since. Whilst accepting that the Applicant’s father and brother returned to Afghanistan in 2002, the Tribunal is not satisfied on the Applicant’s pre‑4 May 2004 evidence that either were abducted by the (named fundamentalist group) or by any other group. His pre‑4 May 2004 assertions to this effect are unsupported; meanwhile, his post‑4 May 2004 evidence, as further discussed below, is inconsistent, implausible, greatly dependent on unreliable claims about Communism and lacking independent corroboration.
The Tribunal is very confidently of the overall view that the Applicant’s claims dating from 4 May 2004, in particular the many new claims he made about being Communist, secular and a known political enemy of the (named fundamentalist group), along with his description of his father’s alleged fate, are fabrications in response to the delegate’s references to Communism in the primary decision. The Tribunal has already observed that the Applicant did not refer to his pro‑Communist claims in his DIMIA application or in his initial RRT application. The Applicant’s assertion that he did do so is misleading. The Tribunal suspects that the Applicant was guided in the fabrication of his Communist claims later on, probably after 27 April 2004, for they did not appear until some time after he engaged Mr Dehsabzi.
…
In any event, the independent evidence cited earlier by the Tribunal leads it to the conclusion that the Applicant would not face persecution in Afghanistan by the (named fundamentalist group) or any other group for reasons of his claimed level of identification with Najibullah or with Communism per se. Meanwhile, the Applicant’s more recent claims about his and his father’s being, or being regarded as, a Communist, or atheist, or secular person clash considerably with his original position about being part of a “very religious family”. The Tribunal dismisses the later claims as the product of opportunistic revision, and accepts the earlier one.
As noted, the Tribunal accepts that the Applicant’s father and brother returned to Kabul and in particular to (home city) to rebuild the family home after eight years. The Tribunal is prepared to accept that the Applicant himself at the present moment may not know precisely where either his father or his brother are. However, the Tribunal does not accept that this of itself means that either of the latter have been abducted or killed, let alone for Convention‑related reasons. The Tribunal is, in fact, of the view that the Applicant has invented the stories about the respective fates of his brother and father. The Tribunal will now discuss the basis of this conclusion.
The Tribunal then discussed, and rejected, the applicant’s claims that his marriage disintegrated due to his wife’s family discovering his “so‑called pro‑Communist past”. It said that “it has come to the view that the Applicant has not become “secular” to such a degree or in such a way as to attract persecution in Afghanistan, and that he shows no evidence of becoming so”. It also concluded that the applicant “does not face a real chance of persecution in Afghanistan for reasons of his Tajik ethnicity, or Shi’ite status, or for reasons of the combination of both”. It said that “the Tribunal considers it practicable and reasonable for the Applicant to re‑enter Afghanistan and reside in his home town, Kabul, where many Tajiks have already re‑integrated”.
The Tribunal recognised difficulties facing the applicant, but said “these are generic problems agitating Humanitarian concerns that are not Convention‑related and not within the Tribunal’s jurisdiction to determine”. It concluded that it was “not satisfied that the Applicant faces a real chance of Convention‑related persecution in Afghanistan. He is not a refugee”.
The Tribunal’s lengthy reasoning, which contains the above conclusions and explains how they were arrived at, shows an impressive attempt to assess the applicant’s evidence against a very complex ethnic, religious and political background. Some of its reasoning may appear debatable, and some of its adverse conclusions show a degree of confidence which other decision‑makers might not have enjoyed. Indeed, reading the material and listening to the tape, I was conscious that other decision‑makers might have been able to reconcile the obscurities and conflicts in the applicant’s evidence and to have arrived at a decision in his favour. However, it is not my task to perform afresh the assessment performed by this Tribunal. I cannot send the matter back just because I think the applicant might deserve a second hearing. I can only do this if I find jurisdictional error affecting the present decision.
I have concluded that the Tribunal’s assessment of the evidence was open to it as a matter of law, and does not reveal a failure to exercise its jurisdiction according to law. The Tribunal has directed itself at all elements in the applicant’s claims, and has reached reasoned conclusions about them which in my opinion reveal no misconception of the definition of “refugee” in the Refugees Convention as adopted by the Migration Act.
Procedural fairness complaints
I therefore turn to consider whether the Tribunal’s decision is vitiated by a failure to afford procedural fairness to the applicant. The applicant’s complaints about the hearing fell into three categories:
i)the conduct of the hearing gave rise to an apprehension of bias;
ii)he was denied sufficient opportunity to give evidence; and
iii)an inadequate interpreter was provided.
The Minister’s counsel did not concede that, in a matter subject to s.422B of the Migration Act, the Tribunal could be found to be acting outside its jurisdiction under principles of apprehended bias. However, he argued that, in any event, they were not satisfied in the present case. I accept this submission.
The High Court has indicated the appropriate test in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27‑32]. Their Honours held that the test of “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” was applicable to proceedings in this Tribunal, and suggested that, in view of the present Tribunal’s administrative and inquisitorial nature, the test might be formulated “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 any apprehension of bias”. Their Honours pointed out that an assessment of apprehended bias in the present context must take into account the different nature of the Tribunal’s proceedings when compared to curial proceedings. They said:
[30] 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.
[31] 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.
[32] In the present case, a fair‑minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair‑minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor’s application stood or fell with his, a fair‑minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
Another case where the Tribunal was found to have “overstepped the boundary” was VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102. Kenny J at [52] said that “in her conduct up to this point in the hearing (including her style of questions, comments and tone of voice) the Member conveyed the impression that she was taking an adverse view of the applicant’s truthfulness and disbelieved his evidence”. She said that the Tribunal “frequently ‘talked over’ the applicant”, and took a “hectoring approach”. Later, at [59], her Honour refers to the Member being “sarcastic or impatient; sometimes, she spoke over the applicant; sometimes, she put matters to him that were incorrect; and sometimes she expressly stated her lack of belief”. At [68] her Honour says the difficulty did not lie in the fact that the Member raised matters adverse to the applicant, but was in the “way she raised such matters”. Her Honour’s conclusion at [82] applied the test identified above: “… a fair‑minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account”.
In the present case, the applicant’s statement attached to his affidavit makes complaints about the hearing which seek to take the Court into this territory. He said:
During my interview my interviewer did not let me neither my solicitor not me to answer his question in proper way. If u listen to my recorded interview, I was repeatedly interrupted by the interviewer. He was imposing his own ideas and trying to put psychological pressure on me. For example, when I was answering his questions either in the middle or at the end he interrupted me by saying, I Don’t think so, I cannot believe it, or it is impossible to believe. Then he continued giving additional information. I can not speak English fluently and my solicitor was never given an chance to speak on behalf of me, even once he was treated in a rude way, when he was going to give a bit more detail.
I shall set out passages in the transcript to which the applicant took me during the hearing. These do not, in my opinion, give rise to any concern in relation to apprehension of bias. However, I have carefully read the full transcript and listened to the tapes. I do not consider that they exhibit the traits found in the above two cases. In particular, the tapes show the hearing proceeding in a measured style, in which the Tribunal’s questions were made in a mild tone, the applicant was not interrupted nor “hectored”, and the applicant nowhere appeared intimidated nor constrained when answering the Tribunal’s questions. The intervention of an interpreter, which might be overlooked when reading the transcript, meant that both the Tribunal and the applicant had ample time to frame their questions and answers in a considered fashion, and the tapes show frequent pauses by both of them. Although occasionally the Tribunal used, perhaps unnecessarily, blunt expressions of doubt about some of the applicant’s responses, I do not consider that they might cause a lay observer to think that the Tribunal had closed its mind. Indeed, my own impression was that the Tribunal had not done so, and that its at times frankly worded doubts were intended to provoke and assist the applicant to think about his evidence and to address difficulties which the Tribunal thought appeared from some of it. I do not consider that the tests of apprehended bias identified above were transgressed in the present case.
At the hearing before me, the applicant first took me to the following part of the hearing:
Q. Let me put something else to you. It’s reasonable to assume that in Kabul there is a large number of former university students, who were at university during the Najib period?
A. The students from the – the university students from Najib government probably would be in Kabul but they didn’t have any activities from those organisations.
Q. It’s hard to assume that they didn’t. At least that’s what I am putting to you now. It is hard to assume that they didn’t, given the way that socialist organisations were imprinted into university life?
A. Yes, but the people’s views are different and the people’s types are different and it was not compulsory to become a member of the organisations during that time. Some of the people had a view to support the Najib government and some of the people were pro‑Mujaheddin.
Q. Well, I’ll consider that. However I have been looking for evidence from human rights organisations about – I have been looking for evidence from human rights organisations that might suggest that people have disappeared or been killed because of some socialist activity during their teenage years or childhood, pre‑Taliban, pre‑Mujaheddin and I can’t find any.
A. Probably the people who had affiliation with the communist party or had socialist activities in the past, they have left the country and besides, the Supreme Judge of Afghanistan declared that the people who had involvement with the communist regime, they are not allowed to live in Afghanistan because they are communists.
The applicant’s concerns about this questioning were that the Tribunal did not understand that some people who were students during the period of the Najib government did not have cause to fear returning to Afghanistan. He pointed to this passage as illustrating that the Tribunal’s opinions about conditions in Afghanistan were not correct, and as showing how he had difficulty giving responses to the propositions put to him by the Tribunal. However, it is not apparent to me that he had any difficulty responding to what was put to him. I consider that he may not have appreciated that one purpose of the Tribunal’s questions was to test his evidence.
The applicant also complained that the Tribunal preferred information gleaned from its own researches and did not properly appreciate what the applicant wanted to say, and he criticised the information relied upon by the Tribunal as incomplete or inaccurate. However, I consider that these points essentially raised concerns, fuelled by hindsight, about how the Tribunal eventually weighed the applicant’s claims in its reasoning. His concerns do not establish a breach of procedural fairness nor jurisdictional error.
In relation to bias, it might have been preferable that the Tribunal could have framed in less assertive terms some of its questions which challenged the applicant to respond to information gathered by it. However, I do not consider that its questions revealed a mind which would not consider the applicant’s responses, and I consider that a lay observer would not have apprehended this. Listening to the tape, it appeared to me that the way in which the questions were put was not intimidating, and that the applicant clearly understood that he was being invited to put his own account of the situation to the Tribunal. I consider that he was given a full opportunity to do this, and took advantage of that opportunity. I consider that his complaints to me, ultimately, revealed only that he disagreed with the Tribunal’s assessment of his responses.
A second passage which the applicant criticised appeared at the end of the hearing:
Q. In all sincerity, you are not pro‑communist, are you? You are only worried about the perception that you’re pro‑communist?
A. Yes, I was pro‑Najib Government and I was supporting the Najib Government, and, according to them, whoever worked for the Najib Government they are non‑believers and infidels.
Q. But you’ve described yourself as a religious Shia?
A. Yes, I’m a Shia Muslim, and my father was a religious scholar of the Shia religion, and during the Najib Government the Shia people’s rights were protected by the Government, and we were against an Islamic government to come to Afghanistan because every Islamic government come to Afghanistan it’s definitely Sunni government, Sunni’s government, which is destroying or ignoring the Shia religion rights.
Q. Well, you’re not talking about a society which remembers your pro‑communist affiliations. You’re talking about a community in Australia that remembers it and has ostracised you. But we have a letter of support here from the Afghan Community Support Association standing by you, taking up your cause, not mentioning at all, you know, that you and your father were mouthpieces for the reviled Najib Government. They’re just treating you like one of them, a member of the Afghan community in Australia, and saying that your case is this: you don’t want to return because of the civil war, which is a very generic concern. But this community here that’s supposed to know its members, this community which is supposed to have a memory about who supported Najib is embracing you in this letter, and I put it to you that this letter is evidence that your existence in Kabul would also be politically innocuous.
A. When I went to the Afghan Association office for getting this support letter from them, they treated me as an Afghan and as an Afghan community members. They showed their support to me because they didn’t – they don’t know about my past activities and my father’s past activities. Only as a member of the community they just give me this support letter.
Q. Well, I’ve noted that. I’ll consider your claims. Okay. There isn’t any further information that I’m seeking from you at this stage, but that’s not a limiting position at this point. Are there any questions you’d like me to ask your client in this hearing?
UNIDENTIFIED PERSON: Yes, I would like to request, learned member, if you could raise this question: what was the reason a religious family, a religious scholar supporting the communist government during the time as the applicant said some time some people was talking during the preaching against the Government and that was, like, a centre of the intelligence service, that preaching house.
MR HARDY: You’re giving – you’re not asking me to ask a question. You’re giving evidence. You’ve tripped over into a completely new piece of information that doesn’t exist yet in this discussion. I’ll ask you to stop right there.
UNIDENTIFIED PERSON: Okay. Thank you.
MR HARDY: Yeah, just stop right there.
UNIDENTIFIED PERSON: Okay.
MR HARDY: You’ve used two words, one started with I and the next one started with S.
UNIDENTIFIED PERSON: Sure.
MR HARDY: Yeah. And that’s not a question. That’s tell me about the thing that I’m discussing right now.
UNIDENTIFIED PERSON: Yeah.
MR HARDY: Okay. That’s not how I ask questions.
UNIDENTIFIED PERSON: Okay.
MR HARDY: Okay.
Q. Are you telling me that your father – in a preaching house did your father actually teach lessons or give opinions about the Koran and explain the meaning of the Koran?
The applicant first referred to the Tribunal’s questioning in the early part of this passage about the letter of support from the Afghan Community Association. He complained that the Tribunal did not accept his evidence that the Association would not have known about his “past activities”. I consider that an element of his complaint arose from misapprehending that it was the responsibility of the Tribunal to “put” to the applicant possible adverse inferences from evidence, so as to allow him a reasonable opportunity to respond. A detached observer would appreciate this, and would not necessarily conclude that the Tribunal had shut its mind to a consideration of his responses.
Ultimately, this issue played an insignificant part in the Tribunal’s reasoning ‑ it is referred to in one sentence: “… if these (PDPA) links were so well‑known and so capable of attracting the revulsion of the post‑Najibullah Afghan population, then this was certainly not evident in the letter of support that the Applicant received from the Afghan Community Association of NSW”. I do not consider that the applicant’s complaint establishes a failure of procedural fairness on the part of the Tribunal.
The applicant’s complaint about the second half of the above passage was that the Tribunal denied his advisor an opportunity of raising a further area of evidence concerning the involvement of the applicant’s father with the Najib government’s intelligence service. However, I do not consider that this happened. The advisor was not himself entitled to ask questions (see s.427(6)(b)), and the Tribunal appears to have had a concern that he was attempting to prompt his client. However, the Tribunal itself proceeded fully to explore the topic by asking many more questions on the topic raised by the advisor.
In relation to possible apprehension of bias, as revealed on the tape, the Tribunal’s tone when responding to the advisor did not appear to me to be unfairly intimidating, and the applicant himself responded very fully to the further questioning of the Tribunal on the topic. In this respect, a possible impression of hostility by the Tribunal arising from the transcript was not sustained by listening to the tape.
Overall, I do not consider that the applicant and his advisor were prevented from raising further issues either at the end of the hearing nor after the hearing. At the end of its further questioning which followed the above passage, the Tribunal again asked the advisor if there was “anything else” – this does not appear on the transcript at p.16 line 37, but is audible on the tape. The Tribunal then asked: “Is there any further material that needs to be presented to me?”, and the tape reveals long pauses while this was considered. I reject the applicant’s complaints that he or his agent were denied sufficient opportunity to put all his evidence before the Tribunal.
The applicant’s complaints about the translator provided for the Tribunal hearing were, in my opinion, without substance. After the Tribunal’s opening introduction, the applicant said “Yes” to the question: “Do you understand me clearly through the interpreter?”. There is no indication in the transcript of any difficulty in interpretation throughout the remainder of the hearing. Listening to the tape, the translator appears to me to have been fluent and competent, and at no time could I detect any difficulty by him in understanding the applicant nor the converse. No evidence from another translator was presented by the applicant to establish any significant error of translation. At the hearing before me, the applicant could take me only to some very insignificant claims of mistranslation when seeking to give substance to this complaint. None of them established a failure of procedural fairness.
I have considered all of the applicant’s submissions concerning the Tribunal’s hearing and reasoning, but have been unable to find any ground of jurisdictional error affecting the Tribunal’s decision. The decision is therefore a “privative clause decision” for which relief is barred by s.474(1). I must therefore dismiss the application.
I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 7 September 2005
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