SZFIV and Anor v Minister for Immigration; and Anor

[2005] FMCA 1811

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIV & ANOR v MINISTER FOR IMMIGRATION
& ANOR [2005] FMCA 1811

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to address a substantial claim – whether Tribunal failed to accord applicant procedural fairness – whether decision affected by apprehended bias.

Migration Act 1958, ss.414, 422B

Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
NAOO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26
SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72
Kioa v West (1985) 159 CLR 550
NBID v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 653
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59
NAQG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1631
SZAPV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 302
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] 49 FCA 576
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Re Ruddock; Ex parte Applicant 154/2002 (2003) 201 ALR 437
WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568
WACO v Minister for Immigration & Multicultural Affairs (2003) FCAFC 171
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Stead v State Government Insurance Commission (1986) 181 CLR 141
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicants: SZFIV & SZFIW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG3784 of 2004

Judgment of: Barnes FM

Hearing date: 25 August 2005

Delivered at: Sydney

Delivered on: 9 December 2005

REPRESENTATION

Counsel for the Applicant: Mr M Seymour

Solicitors for the Applicant: Allens Arthur Robinson

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 9 February 2004.

2. That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicants’ application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3784 of 2004

SZFIV & SZFIW

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 March 2004 affirming a decision of a delegate of the respondent not to grant the applicants protection visas.

2. The first applicant is an Egyptian citizen who arrived in Australia on

   
   

   10 April 2003.  Her daughter, the second applicant, was born in Australia on 30 April 2003.  On 7 July 2003 the applicant mother (referred to hereafter as the applicant) lodged an application for protection visas for herself and her daughter.  She claimed to fear persecution from the general Muslim community as well as from specific members of that community based on her religion as a Coptic Christian and her service in the church.  She claimed that she and her family had been threatened with a syringe filled with acid, verbally abused, defamed and once had stones thrown at her by neighbours.  She also claimed that two Muslim men had tried to break into her home and threatened to kill her.  One of these men had later attacked, robbed and threatened her husband.  The applicant also claimed that she had a Christian friend who had married a high ranking Muslim policeman.  She claimed that this man had threatened to torture her and her family if she talked to his wife again or did anything he did not like.  Her friend (the wife of the policeman) warned her to leave the country and not to return because the policeman had said he would torture and kill her because he was convinced that his wife’s choice of faith (Christianity) was the applicant’s fault.

3. The applicant also claimed that someone at her husband’s work offered him thirty five thousand pounds to convert himself and the children to Islam and that when he refused they discriminated against him and allowed him no privileges.  The applicant expressed fear for the safety of her husband and two sons, aged five and eight, who remained in Egypt.  Subsequently the applicant wrote to the Department enclosing documents in support of her application (including documents relating to her husband’s treatment at his work).  She claimed her husband was experiencing great religious discrimination in Egypt because of his Christian religion. 

4. On 13 November 2003 the delegate refused to grant the protection visas sought.  The applicant mother and daughter sought review by the Tribunal.  In the review application the applicant claimed that she had been seriously threatened by a named person who was an officer in the Egyptian police service whose wife was a close friend whom she had counselled and assisted as a result of her marrying a Muslim.  She claimed that several attempts had been made to kidnap and kill her and her husband and sons.  She claimed that she had “provided assistance and care to converts from Islam to Christianity through my local parish church in … district in Cairo”.  She also claimed that her father was abducted and given drugs in October 2001 and subsequently died in June 2003.  She claimed that in approximately October 2002 three men had attacked her and her husband with a syringe filled with acid outside a church.  She claimed that her life and that of her family was in serious danger and subject to immediate threat.  She expressed concern about her husband and the two children in Egypt.

5. In support of her review application the applicant provided a copy of a letter dated 3 December 2003 from a Coptic Christian priest in Sydney who was assisting her with her application.  He claimed to write on behalf of the Coptic Orthodox Church Diocese in Sydney.  At the Tribunal hearing a copy of the same letter, dated 28 January 2004, was provided.  That letter made a number of claims about what the applicant said had happened to her and her family in Egypt.  The letter stated that the original statement written in the protection visa application did not give proper information because somebody wrote it for the applicant due to her lack of English language.  It was claimed that the applicant had lived in an area in Cairo where fundamental Muslim groups existed.  It was claimed that the applicant, her husband and three children were “servants” in two Coptic Orthodox churches in Egypt, one of which was at a particular place in Cairo and that:

   They were entrusted with the service of new converts to Christianity (from Islam).  They received the newly baptised and provided them with all their needs in terms of accommodation (in a house owned by her husband), food and clothing; for a period of time until they were sent to Alexandria. 

6. The letter stated that “problems started” when the applicant was asked by one of the priests to ask about a Christian woman who had married a Muslim lieutenant in the Egyptian police and stopped coming to church.  It was contended that this man used to beat his wife and “she used to resort to [the applicant] for comfort” and that when he found out “he began his threats”.  It was claimed that the applicant’s father died two years after being poisoned.  (It was claimed that he had suffered extremely high blood pressure due to the poison, then an intravenal haemorrhage and had become hemiplegic).  It was said that the lieutenant was behind this incident.  

7. It was also claimed that as the applicant was walking home a car pulled up next to her and a man holding a syringe of diluted acid injected it into her causing a burn in her right arm and threatened that the next time the acid would not be diluted.  It was claimed that on another occasion several threatening attempts were made to hit the applicant with a car.  Subsequently three or four men attempted to break down the door of the applicant’s house when she was home alone.  She had screamed.  Neighbours had come out and the men escaped.

8. The letter continued that a friend of the applicant’s husband found out about “their service” and informed the husband’s boss that he was involved in serving Muslim converts.  A superior at his work allegedly assigned some Muslim women to seduce the applicant’s husband and when this did not work, offered him one hundred thousand pounds if he converted to Islam with his two sons.  When he refused they ‘omitted’ his pay for three months.

9. It was also said that while the applicant was pregnant the Muslim lieutenant threatened the applicant’s husband that if he sensed any contact between the applicant and his wife he would, with one injection, kill both the applicant and her child during childbirth.  The letter stated that for these reasons the applicant had come to Australia. 

Tribunal decision

1. The Tribunal outlined the applicant’s claims in her protection visa application, the evidence she submitted with regard to the work and activities of her husband, the claims she made in her application for review and the claims made in the submission from the priest.  The Tribunal also described the evidence of the applicant at the Tribunal hearing about her claim that she believed her father had been poisoned, the claimed attacks on her and mistreatment of her husband as discussed further below. 

2. In the findings and reasons part of its decision the Tribunal commenced by noting that the applicant claimed that she and her family:

   has been the subject of attacks from Muslim militants because of her assistance to Coptic Christian converts and in particular, because she has offered support to the abused Coptic wife of an Egyptian police officer.  These attacks have included an alleged poisoning of her parent, a chemical attack and physical attack, an attempt to run her over, an attempted home invasion, an attempt to tempt her husband with sexual advances and money to convert to Islam, a threat to kill her and a claim that the officer’s child has turned her relative into a drug addict”. 

3. The Tribunal stated that it had considered the applicant’s claims and evidence but did not accept these claims, finding them to have been fabricated in order to permit her to gain a protection visa.  It gave reasons for this finding. 

4. First it found the claims to be “so fantastic as to be unbelievable”.  It was strengthened in this finding for a number of reasons.  It found the idea that the first “attack” on the applicant would have been via an alleged “poisoning” of her father raised a serious doubt as to why such an indirect measure should be taken as the first measure against her, rather than a direct attack.  In light of the evidence as to the circumstances of this incident, it found her conclusion that this was the work of Islamic militants working with or for the police officer to be speculative in the extreme.  It also found the attack to be at odds with independent evidence as to the lessening of influence and actions of Islamic militants in the face of government repression.  The Tribunal noted that there was a break of some 18 months before any further measure was taken against the applicant and found this to be inexplicable.  It noted the applicant’s claim that this was because she and her husband did not take part in any church activities during this time but found that it was her own evidence that during this time she continued to offer support to the police officer’s wife and allowed her to stay overnight.  The Tribunal was of the view that:

   “one might have expected this to have precipitated immediate confrontations with, and/or harmful actions by, the officer, but according to her evidence nothing happened to her during this period.” 

5. The Tribunal found the applicant’s claim that the next event was, without any prior threats to her, an acid attack and stabbing to be “so bizarre as to be unbelievable”.  It accepted that the applicant may have marks on her body as claimed, but was not satisfied they occurred in the manner she claimed.  It also found her claims about the subsequent car incident and home invasion, that her husband was penalised at work and was approached with inducements of sex and money to convert to Islam and that there was a connection between her brother being turned into a drug addict and the actions against her by the police husband of her Christian friend to be unbelievable. 

6. The Tribunal stated that it was strengthened in these findings by the fact that the applicant’s claims about the level of persecution of Copts in Egypt were extreme and unsupported by independent evidence which the Tribunal accepted.  It found her claim that her husband could not change jobs and find work with a Christian firm and her explanation for this to be unsupported by independent evidence.  Her claim that Islamic extremists were operating openly and with the support of authorities was said to be contradicted by independent evidence. 

7. The Tribunal also considered the applicant’s adviser’s observation that he had made investigations to establish the validity of the claims.  It noted that no evidence of such investigations was presented and that the adviser did not attend the hearing to permit the Tribunal to make inquiries about his investigations.  In light of this it placed no weight on his assurances in this regard.  It noted that the adviser claimed that the applicant lived in an area of Cairo of high Muslim density and Islamic extremism.  It found that if this was the situation it was open to the applicant and her family to relocate to some other area of Cairo.  It found the claim that they could not afford to do so to be unbelievable given that the applicant’s husband was in regular employment.  The Tribunal found no reason for the applicant’s family not to leave the suburb they live in if indeed they felt isolated and vulnerable.  It considered her claim that the police officer would pursue her elsewhere in Cairo but was not satisfied that such a person had indeed threatened her. 

8. It found that independent evidence showed continuing vigilance by the authorities against violent Islamic militants and found that the state provided adequate protection to Coptic Christians.  In light of this it found there was no real chance the applicant might be harmed by the actions of Islamic militants aimed at Christians and for the reasons it had given it was not satisfied that the applicant had been or would be again the target for harm by a police officer as she claimed.

9. In conclusion the Tribunal was not satisfied that there was a real chance the applicant mother and her daughter might face persecution in the foreseeable future for her religion or for any other Convention reason.  It found her fear was not well founded.

10. The applicant sought review by application filed in this Court on

    
    

    30 December 2004.  She relies on a further amended application filed in Court.  It raises three grounds:  failure to address and make findings about a substantial claim, lack of procedural fairness and apprehended bias. 

Failure to address and make findings about a substantial claim

1. The first ground relied upon by the applicant is that the Tribunal failed to address and make findings about a substantial claim put forward by her.  The particulars of this claim are that she submitted a claim to the Tribunal that she feared persecution in Egypt because she provided comfort, assistance, shelter and care to converts from Islam to Christianity;  that the Tribunal did not make findings in relation to her claim that she feared persecution because of her status as a person providing comfort, assistance, shelter and care to converts from Islam to Christianity;  that it had a duty to consider all substantial claims put forward by the applicant and failed to do so, and that the persecution of the applicant as someone who provided comfort, assistance, shelter and care to converts from Islam to Christianity was persecution for reasons of her membership of a particular social group (being those who provide comfort, assistance, shelter and care to converts from Islam to Christianity).

2. It was contended that this claim was put to the Tribunal most clearly in the applicant’s application for review, in submissions written on her behalf by the priest of the Coptic Orthodox Church Diocese of Sydney and at the hearing when the Tribunal member asked the applicant why the incidents she had referred to were happening.  In her protection visa application the applicant referred first to having been threatened that she would be splashed in the face with acid “if she ever went back and served in the Church”.  She described mistreatment by neighbours because she was a Christian and then described her fears about the husband of her Christian friend.  In her application for review by the Tribunal the applicant listed seven reasons for making the application.  One of these was as follows:

   I have provided assistance and care to converts from Islam to Christianity through my local parish … in … district in Cairo. 

3. This was expressed as a separate claim to that based on the applicant’s fears of the Muslim police officer whose wife was a close friend she had counselled and assisted as a result of her marriage to a Muslim.

4. The letters of support from the priest of the Coptic Orthodox Church clearly set out the applicant’s claimed role assisting new converts with accommodation in a family home, food and clothing (see paragraph five above) as well as suggesting that “problems started” when the applicant was asked by one of the priests to ask about a Christian woman who had married a Muslim police officer.  The description of subsequent incidents makes it clear that a claim on this basis is asserted.  It is claimed that a friend of the applicant’s husband “found out about their service and informed her husband’s boss that he is involved in serving Moslem converts”.  The consequences the applicant’s husband was said to have experienced are then described. 

5. Counsel for the applicant relied in particular on an exchange that occurred in the Tribunal hearing (transcript page six) after the applicant had described some of the events that she claimed had occurred:

   TRIBUNAL MEMBER:  OK.  And why was all this happening? 

   APPLICANT:  Because my, us as a family, my parents, my brothers and sisters, myself and my husband, were also at the church.  We have certain duties and my husband and I.  Because my parents-in-law have a house that we used to use for people who are Muslim and who convert to Christianity.  They would get baptised and we would look after them.  We would keep them in that house, we give them food and clothes and look after them for a while and then after that we send them to another place in Alexandria where they would look after them and then send them abroad because if they found out they would be in danger. 

   TRIBUNAL MEMBER:  You live in Alexandria? 

   APPLICANT:  No, I live in Cairo. 

   TRIBUNAL MEMBER:  In Cairo.  But the person went to Alexandria? 

   APPLICANT:  Yes. 

   TRIBUNAL MEMBER:  Okay.  Go on. 

   APPLICANT:  After they get to Alexandria they send them abroad, but we do our share and we send them to Alexandria and we, like that's our part. 

   TRIBUNAL MEMBER:  OK, so why were you having this trouble? 

   APPLICANT:  Because this house used to be vacant and all of a sudden people started noticing that there were people coming in and out and Muslims are usually obvious the way they dress, they cover their heads, they wear like long beards and things like that, and after a while people see that their appearance has changed so they know what happened. 

   TRIBUNAL MEMBER:  But why were you attacked? 

   APPLICANT:  The house, well in the area people started noticing that we were looking after these people, we were coming in and out and giving them food and things like that and they know, from they could hear, the houses are close to each other and people can hear what's going on, they can hear the preaching and the songs and things like that, so they knew what was happening.  So they started throwing fire or rubbish or like dead cats or chicken, dogs or things like that into the house and they also, they started attacking us.  That was their only way.  There was no other way for them to stop us.  They tried to do that by intimidating us.  They were also harassing my children on their way to and from school. 

   TRIBUNAL MEMBER:  Were any other people helping who also got this harassment? 

   APPLICANT:  No, nobody else because in this area we were the ones responsible for this service.  But in other areas lots of people faced similar circumstances and they were sent to jail and detention.

   TRIBUNAL MEMBER:  The area you are talking about is area…?  And was there any other reason for them to be attacking you?

   APPLICANT:  No.  Only because we were the only Christians like.  There were very few Christians in the area - us and my husband's family.  So everybody was always watching us and they were persecuting us and treating us in that way. 

1. It is relevant that to this point in the hearing the applicant made no mention of her fears of the Muslim police officer.  She addressed those claims when asked specifically about him and about his wife.

2. I am satisfied that the applicant made a clear and distinct claim to have been persecuted (and hence, at the very least, impliedly to fear persecution) because of her role (and that of her family) in providing comfort, assistance, shelter and care to converts from Islam to Christianity. 

3. Her claim was that she was visible in her support for converts from Islam to Christianity and therefore the target of persecution relating to her assistance to these converts.  This was distinct from her claim that she feared persecution in Egypt because she was a Coptic Christian and from her claimed fears about the Muslim police officer.  The applicant explained at the hearing that there were no other people helping converts who were harassed in the same way because she and her family were the only ones responsible for providing this particular "service" in that area.  It was contended that in referring to people in other areas facing similar circumstances and persecution and being sent to gaol and detained, the applicant had distinguished her position and the position of others providing services to converts from the position of Coptic Christians generally in Egypt. 

4. I accept this argument.  While the applicant did not express this part of her claims in terms of membership of a particular social group, she did distinguish those who provided services to converts from Coptic Christians generally in her evidence to the Tribunal and she related the claimed attacks and “trouble” to the visibility of the services she and the family provided to converts.  Further, as pointed out by counsel for the applicant, the Tribunal member questioned the applicant on three occasions as to why there were no attacks on her between April 2001 and November or December 2002, a circumstance which the Tribunal ultimately regarded as “inexplicable”.  The applicant explained this by stating repeatedly that it was because she and her family were not “doing anything”, not participating in church “activity” at that time and they were not “offering any services”. 

5. It was contended that in the findings and reasons part of the decision the Tribunal gave no consideration to the distinction made by the applicant between persecution directed at her as a result of her being Christian and that directed at her by reason of her provision of comfort, assistance, shelter and care to converts from Islam to Christianity.  While the Tribunal referred to country information in relation to the position of Coptic Christians in Egypt, it was said to have failed to address the distinction raised in that information between Coptic Christians in Egypt generally and the position of proselytising Christians and converts from Islam to Christianity.  That failure supported the conclusion that the Tribunal had failed to draw such a distinction in considering the applicant's claims. 

6. It was submitted that independent country information which was before the Tribunal and was referred to generally, demonstrated that proselytising Christians and converts from Islam to Christianity had a special vulnerability to persecution.  The information was said to bear some similarities to the nature of the independent evidence considered in Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 in which it was held that “the Tribunal had to consider” (per Hayne and Heydon JJ at [167]) country information drew a distinction between different classes of Christians in Iran in order to “consider the individual circumstances of the appellant in light of the available information” (per Gleeson CJ at [8] – [9]).

7. Reference was made to evidence that Egyptian government agencies sporadically persecuted Muslim converts to Christianity; that the government generally tolerated missionary groups if they did not proselytise actively; evidence of reports of police harassment of Christians who had converted from Islam; evidence of several confirmed reports that converts to Christianity were harassed by security authorities and detained in prison; evidence that in the past two decades several thousand Christians who were accused of proselytising or who had converted from Islam were harassed by police or arrested on charges of violating a provision of the penal code prohibiting citizens from ridiculing or insulting heavenly religions or inciting sectarian strife; evidence that the authorities had charged several converts from Islam to Christianity with violating laws prohibiting the falsification of documents (where converts fearing government harassment if they officially registered the change from Islam to Christianity had altered the identification cards and other official documents to reflect their new religious affiliation); evidence of credible reports of government harassment of Christian families that attempted to regain custody of daughters who had married Muslim men; evidence that religious conversion was an extremely sensitive issue in Egypt and evidence of cases involving Copts who converted to Islam and then “re-converted” to Christianity being subject to harsh forms of punishment including imprisonment.

8. It was contended that this evidence was relevant to the applicant's claim that she suffered particular persecution because of her role in providing comfort, assistance, shelter and care to converts from Islam to Christianity and that it was reasonable to infer (or at least to have regard to the possibility) that the applicant would have been regarded in a similar light as proselytising Christians and converts from Islam to Christianity because she actively supported converts and assisted in the running of what her counsel described as a “safe house”.

9. The Tribunal's finding that the applicant's claims about the level of persecution of Copts in Egypt were “quite unsupported by the independent evidence” was said to be an integral factor in its ultimate finding of fabrication.  It was contended that had the Tribunal addressed all of the applicant's claims, it would have found support in the independent evidence for her claim that she was in a special position as a person who provided comfort, assistance, shelter and care to converts from Islam to Christianity. 

10. The Tribunal’s finding that it was inexplicable that there was a break of some 18 months between the attack on her father and the acid attack on her was also said to be relevant to the adverse credibility findings.  It was submitted that had the Tribunal had regard to the independent evidence regarding the special vulnerability of proselytising Christians and converts from Islam to Christianity, it was likely that it would have given greater weight to the applicant's repeated explanations that at this time she and her family were not actively participating in church activities or offering their services to converts.

11. On the basis of these contentions it was submitted that the Tribunal's failure to consider a substantial claim put forward by the applicant meant that the entire task undertaken by the Tribunal was flawed and that no findings in relation to the other claims put forward by the applicant could be used to speculate as to what findings the Tribunal may have made if it had properly turned its mind to the relevant questions thrown up by this claim.  In particular, it was contended that it could not be said that this claim by the applicant was subsumed in her general claim to fear persecution because of her religion because, independent of that claim and notwithstanding her religion, the service the applicant had engaged in was such that, on her evidence, it was visible in the community because the converts from Islam to Christianity would immediately become visible to the community who would know what had happened.  Thus any malice or persecutory conduct occurring in relation to the converts would be also directed at the applicant because of her role in that respect.  In other words, it was contended that the applicant and her family would be visibly connected to members of the community who would also face persecution because of their conversion. 

12. It was submitted that the applicant’s evidence raised a claim that she was persecuted by reason of membership of a particular social group (albeit not expressed in those terms).  Hence it was said to be incumbent on the Tribunal to address and make findings about such a claim and that as it failed to do so it failed to exercise its jurisdiction.  Such failure would constitute a jurisdictional error (see Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 and Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244). There was said to be a quality of the applicant that was capable of distinction (see McHugh J in Applicant NABD of 2002 v Minister for Immigration & Multicultural &Indigenous Affairs (2005) 216 ALR 1 at [34] – [35]). That distinguishing character was isolated by the applicant in her evidence to the Tribunal. It was that she and her family would become immediately obvious. In other words, once people had converted from Islam to Christianity those converts would become immediately obvious in their community and their presence in the applicant's family's home would then single out and make obvious and distinguishable the applicant and her family for being connected to persons who had undergone that conversion. It was contended that the applicant had provided evidence to the Tribunal from which it could be said that the potential persecutors would also make that distinction (see NABD at [35]). It was also said that the applicant herself made this distinction in her evidence to the Tribunal.

13. Finally, it was contended that as the Tribunal failed to make any findings in respect of a substantial integer of the applicant's case (see Htun), the finding that her claims were fabricated could not support the decision, as the Tribunal had failed to consider the aspect of her case that persecution may be directed at her as a member of a particular social group being those who provide assistance, shelter, comfort and care to converts from Islam to Christianity. 

14. In response to these submissions, counsel for the respondent contended that the Tribunal did deal with the claim that the applicant feared persecution because she had provided assistance and care to converts from Islam to Christianity including her claim that she assisted the wife of the Muslim police officer.  It was said that her claims that she and her family had been the subject of attacks from Muslims because of their assistance to Coptic Christian converts, including her claim in relation to the support she had given to the Coptic wife of an Egyptian police officer, were expressly rejected by the Tribunal and found to have been fabricated and that the extent of the applicant's claimed "proselytising" activities was covered by these findings.

15. Reference was made to the Tribunal's summary of the applicant’s claims.  In describing what the applicant had claimed at the hearing, the Tribunal summarised her response (when asked why all the attacks had occurred to her and her family) by reference to the duties she carried out for the church.  It was submitted that the Tribunal accurately summarised the applicant's claims and in finding that it considered the applicant's claims and her evidence but did not accept her claims and found that she had fabricated them, it adequately addressed and dealt with the claim to fear harm because of the assistance she provided to Coptic Christian converts.  In other words it was submitted that the rejected claims included such claims.  It was contended for the respondent that the role of the police officer in the applicant's case was of significance.  This was said to be apparent from the submission of the Coptic Christian priest in Sydney (who was advising and advocating on behalf of the applicant) which stressed the involvement of the police officer in the events complained of by the applicant.  It was suggested that the applicant’s submissions in these proceedings tended to “commit the sin” of reinventing her claim. 

16. It was said that there was no need for the Tribunal to consider how country information bore upon any claim that the applicant feared persecution because of assistance she had given to converts because such claims had been rejected.  It was also submitted that the Tribunal made relocation and effective protection findings that provided an alternative basis for the decision. 

17. It was submitted that the aspects of independent information said to support the proposition that persons in Egypt who provide assistance to persons who convert from Islam to Christianity are persecuted, was at best evidence in support of a claim rather than an integer of a claim which needed to be considered to complete the Tribunal's exercise of jurisdiction (see Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79] and Htun at [42]) and that, in any event, the Tribunal was not obliged to refer to any competing body of evidence that did not support its claims (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [26] – [28]). It was suggested that to the extent that the applicant made submissions as to how the Tribunal may have treated evidence differently, this merely invited merits review. (see NAOO v Minister [2004] FCAFC 26 at [14] and SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16] referring to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]). The weight to be given to country information, its accuracy and relevance, were said to be matters for the Tribunal.

18. As indicated above, I am satisfied that the applicant did make a substantial and distinct claim that she feared persecution based on her provision of assistance and care to converts from Islam to Christianity.  This is clear from the material in which she presented her claims and, in particular, from what she told the Tribunal in the hearing as set out above.  The fact that the letter of support from the local priest emphasised other fears does not mean that she abandoned or did not pursue such claims.  This letter also set out that the applicant and her family were entrusted with the service of new converts to Christianity from Islam. 

19. Importantly, and contrary to the submissions of the respondent, the applicant did not claim, nor did the material before the Tribunal suggest, that her claimed fears based on the support she had offered to the wife of a police officer were integral to or a part of her claim to fear persecution as a provider of support to converts from Islam to Christianity.  The applicant did not assert that the woman who married the Muslim officer was a convert from Islam to Christianity.  Rather she told the Tribunal (page 8 transcript of hearing) that the woman was a friend who was a Christian.  The priest at the church asked the applicant to look after this woman because her husband might ask her to convert.  When asked “So she wasn’t a convert, she was born Christian?” the applicant replied “Yes, she was born Christian”.  This is reinforced by the applicant’s remark, after referring to threats from the police officer, that this woman (whose parents would not talk to her because she had married a Muslim) “would come and stay at my home and I used to look after her and make sure that she stays Christian”.

20. This distinction is important when one considers the Tribunal reasons for decision.  The Tribunal did “note” the applicant’s claim that she feared persecution because she had provided assistance and care to converts from Islam to Christianity (as contended for the respondents) in its summary of the claims and evidence presented at the hearing.  However the fact that the Tribunal accurately summarised the claim does not establish that the Tribunal adequately addressed or made findings about this claim.  I have borne in mind that the Tribunal reasons should “not be read over-finely or with an eye too keenly attuned to the perception of error” (Allsop J in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [36] referring to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). However, as discussed by Allsop J in Htun at [42] the Tribunal is required to consider the claims of the applicant (see s.414 Migration Act 1958(Cth) and:

    To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24;  66 ALR 299 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.

21. The critical part of the Tribunal reasons for decision is the “findings and reasons” section in which it stated:

    The applicant mother claims that she and her family has been the subject of attacks from Muslim militants because of her assistance to Coptic Christian converts and in particular, because she has offered support to the abused Coptic wife of an Egyptian police officer.  These attacks have included an alleged poisoning of her father, an acid attack and stabbing, an attempt to run her over, an attempted home invasion, an attempt to tempt her husband with sexual advances and money to convert to Islam, a threat to kill he during childbirth, and a claim that the officer’s son has turned her brother into a drug addict.

    The Tribunal has considered the applicant’s claims and her evidence but does not accept her claims.  The Tribunal finds these claims to have been fabricated in order to permit her to gain a protection visa.  The Tribunal has come to this finding for the following reasons.

    The Tribunal finds the claims so fantastic as to be unbelievable, and is strengthened in this finding for the following reasons.

22. I am not persuaded that in making such finding the Tribunal did consider and address the applicant’s claims to fear persecution because of her role in providing assistance to converts from Islam to Christianity.  This claim was distinct from the applicant’s claim to fear the Muslim police officer.  While the findings and reasons part of the decision commences by referring to the applicant’s claim that she and her family had been the subject of attacks from Muslim militants “because of her assistance to Coptic Christian converts”, it is apparent from what follows immediately thereafter “and in particular, because she has offered support to the abused Coptic wife of an Egyptian police officer” (emphasis added) that the Tribunal conflated two distinct claims despite the fact that the claim about assistance to converts did not include the claim about support to the wife of the police officer.  That the Tribunal did not deal with the assistance to converts claim is also made clear by the reasons the Tribunal gives for finding the applicant’s claims to have been fabricated.  Such reasons address aspects of her claims which are based on her fear of the police officer and her fear as a Coptic Christian or Christian per se – and not that part of her claims based on her assistance to converts.  In particular the Tribunal findings about the inexplicable nature of the period of 18 months where no measures were taken against the applicant fail to distinguish her claim about support to converts and her claim about the officer’s wife.  The Tribunal stated:

    The Tribunal notes that there was a break of some 18 months before any further measure (the “acid attack”) was taken against her and finds this to be inexplicable.  The applicant claims it is because she and her husband did not take part in church activities during this time.  However, it is her own evidence that during this time she continued to offer support to the officer’s wife and indeed allowed the wife to overnight in the applicant’s home.  One might have expected this to have precipitated immediate confrontations with, and/or harmful actions by, the officer, but according to her evidence nothing happened to her during the whole of this period.

1. The Tribunal finding of “inexplicability” does not address that part of the claims that provided an explanation relating to cessation of the “church activities” and “services” that (as the applicant had explained) involved the provision of support to converts.  The reasons that are said to strengthen the conclusion that the applicant’s claims were “so fantastic as to be unbelievable” do not address her distinct claim to fear persecution because of her role in supporting converts from Islam to Christianity.

2. The independent information cited by the Tribunal relates to the applicant’s claims to fear persecution by reason of her religion.  However her claim to fear persecution because of the support she provided to converts was not subsumed in her general claim to fear persecution because of her religion.  As contended for the applicant, the applicant’s evidence (and part of the independent material) raised the possibility that there was a quality of the applicant that was susceptible of distinction, such that there may be a sub-group within the category of Coptic Christians or Christians.  The applicant provided evidence in the Tribunal hearing from which it could be said that potential persecutors would make that distinction, in describing the activities in her family’s home and in giving an explanation for the 18 month hiatus in events based on the fact that she and her family were not “offering any services”.  The fact that the Tribunal failed to address the distinction in country information about treatment of Coptic Christians generally and that of proselytising Christians and converts supports the conclusion that the Tribunal failed to consider the applicant’s discrete claims and individual circumstances as a provider of support to converts (see NABD at [167]).

3. The Tribunal’s failure to refer to particular evidence said to support the proposition that supporters of converts were persecuted is not of itself a failure to refer to an integer of the applicant’s claim.  Rather, it is one of the factors that make it clear that the Tribunal failed to have regard to the claim to fear persecution on this basis.  This integer of the claims was clearly identified by the applicant (Htun).  There was objective material to support it.  Further, while not expressed in terms of particular social group, the claims of the applicant and material before the Tribunal raised a claim that the applicant feared persecution by reason of membership of a particular social group which the Tribunal had to address and make findings about (Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389). It failed to do so. Hence it failed to exercise its jurisdiction. Such failure constituted jurisdictional error.

4. Finally, while the Tribunal made relocation and effective protection findings, these do not provide an independent alternative basis for the decision as they do not take into account the applicant’s distinct claims to fear persecution because of her role as a provider of support to converts from Islam to Christianity. 

5. As jurisdictional error has been established relief should be granted.  The other two grounds relied on are a denial of procedural fairness and apprehended bias.  As a jurisdictional error has been established on the basis contended for in ground 1 it is not, strictly speaking, necessary to determine whether such grounds are also made out.  Nonetheless for the sake of completeness I indicate that for the reasons below I am not satisfied that either of the other grounds relied on is established. 

Procedural fairness

1. The second ground relied on in the further amended application is that “the decision of the Tribunal is void for jurisdictional error for failing to accord the applicants procedural fairness in making the decision.”  The particulars of this ground are as follows:

   a) The Tribunal made a finding that the Applicant had fabricated her evidence but rejected the applicant's offer to tender documents in support of critical aspects of that evidence.

   b) The Tribunal did not offer notice of, or provide the Applicant with an opportunity to make submissions with respect to, a finding that the documents would not assist the Tribunal because of the opinion of the Tribunal that the applicant had fabricated her entire claim. 

   c)  The documents were as follows:

   (i) The Applicant offered to send for a report in Egypt regarding the attack upon her.  The Tribunal member rejected that offer, stating:

   That's all right, I don't need to do that, I'm happy just to take your advice (page 5 transcript).

   (ii)     The Applicant provided a letter in Arabic about the incident where her mother was run down at the supermarket and her leg broken.  The Tribunal:  (a) failed to have the letter translated, despite the presence of an Arabic to English translator at the hearing; and (b) subsequently failed to have any regard to the document at all (page 4 transcript).

   (iii)   The applicant provided reports about her father's condition and the circumstances of his death in Arabic and English.  The Tribunal member appears to have rejected those documents because he said that the medical material did not help him at all and he would prefer to hear her story (page 3 transcript). 

   d) The Tribunal member made a finding that the applicant had fabricated her evidence in circumstances where his words, "I'm happy just to take your advice" (page 5 transcript) had conveyed to the applicant that he would accept her version of events without the need for corroborating documentary evidence.

   e)  The Tribunal failed to offer notice of, or provide the applicant with an opportunity to make submissions with respect to, his rulings that no documentary material would assist him or that he would not have regard to the material provided, if he found as a threshold issue that the applicant's entire claim had been fabricated.

2. Both counsel accepted that the statement of the Tribunal member referred to in particular (c)(i) was in fact: “I'm happy just to take your evidence.”  

3. Neither party made any reference to s.422B of the Migration Act 1958 which came into effect on 4 July 2002 and hence is applicable in this case.  Both parties proceeded on the basis that natural justice principles were applicable and if a denial of natural justice was established that would give rise to a jurisdictional error. 

4. Counsel for the applicant contended that the Tribunal was bound by the rules of natural justice and had a duty to act in a manner that was procedurally fair (Muin v Refugee Review Tribunal (2002) 190 ALR 601; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). It was submitted that the Tribunal's conclusion that the applicant did not have a well-founded fear of persecution was “fundamentally based” on its finding that the applicant had entirely fabricated her evidence and that if the Tribunal was to find as a threshold issue that the entire claim had been fabricated, it was incumbent on it to offer notice of or to provide the applicant with an opportunity to make submissions with respect to that finding. It was submitted that the Tribunal was also under an obligation to provide such an opportunity to the applicant in relation to the finding (based on a finding of fabrication) that no documentary material put forward by the applicant would assist the Tribunal in its determination or further that it would not have any regard to the material provided. It was contended that the failure to give the applicant such an opportunity or to put her on notice of the findings of fabrication and that documentary evidence would be of no assistance was to deny the applicant procedural fairness: Kioa v West (1985) 159 CLR 550.

5. The first aspect of this submission is a contention that unfairness flowed because while the Tribunal member put to the applicant that he considered her story “fantastic” in that “it [was] very hard to believe”, he did not, in the course of the Tribunal hearing, give the applicant notice or an opportunity to make submissions about what was said to be an inclination that the Tribunal member had from the very outset of the hearing to entirely disbelieve the applicant's evidence.  In other words, it was said that what was put at the start of the hearing did not convey that the story was fabricated but only that it was hard to believe in the sense of being “fantastic”.  This was said to be apparent from the fact that the applicant responded “yes” to the suggestion that her story was “fantastic”.

6. The second aspect of this claim is that in stating to the applicant that the Tribunal was happy just to take her evidence, the Tribunal conveyed to her that it would accept her version of events without the need for corroborating documentary evidence.  This was said to be a breach of the rules of natural justice in circumstances where the Tribunal found that the applicant had fabricated her evidence.  (See NBID v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 653). It was contended that because the Tribunal member had conveyed to the applicant that he would accept her version of events without the need for corroborating documentary evidence, it was incumbent on him to put it to her (if he was minded to make such a finding) that she had fabricated her whole claim. Alternatively, he should have, it was said, either put the applicant on notice that he would not rely on documents until satisfied her claim was true or should have had regard to the documentary evidence in assessing whether her claim was true. It was also contended that the Tribunal's failure to put squarely to the applicant that she had fabricated her claim denied her a fair hearing in the sense considered in Aala per McHugh J at [101]. 

7. It was also contended that the Tribunal's preliminary view from the outset that the applicant’s claim was hard to believe affected the manner in which the hearing was conducted and limited opportunities for her to present evidence in her case.  Reference was made to a number of items of documentary material that the applicant sought to bring to the attention of the Tribunal during the hearing:  a report regarding the attack on her which the Tribunal member rejected, stating, “That's all right, I don't need to do that, I'm happy just to take your evidence”; a medical report in Arabic about the incident where her mother was allegedly run down at the supermarket and her leg broken (it was said that the Tribunal failed to have the report translated despite the presence of an interpreter and subsequently failed to have any regard to the document): and a report about her father's condition and the circumstances of his death in Arabic and English (which the Tribunal allegedly appeared to have rejected in stating that the medical material did not help him at all and he would rather hear her story).

8. It was contended that this case was distinguishable from Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 because the Tribunal member had formed an adverse view regarding the credibility of the applicant prior to the hearing and therefore refused to take account of documentary evidence she tendered in corroboration of her version of events. It was said that the case was analogous to NAQG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1631 in which Allsop J distinguished S20/2002 on the basis that, rather than rejecting documentary evidence, the Tribunal had failed to make a finding about documents tendered in corroboration at all and thus failed to complete its jurisdictional task or denied the applicant procedural fairness (also see SZAPV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 302).

9. It was suggested that if the Tribunal member was inclined to a finding that the entirety of the evidence was fabricated so that no documentary evidence would be seen as corroborative (Applicant S20), then there was still an obligation to put this to the applicant for comment or contradiction.  It was said that to put to the applicant that her story was "fantastic", which in context was contended to mean “fantastic” in the sense of “hard to believe”, did not constitute sufficient notice of an inclination to entirely disbelieve the applicant's case so that no documentary evidence would assist the Tribunal in its function. 

10. However, as Lindgren and Stone JJ suggested in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 the scope and content of the requirements of natural justice must be considered in the particular factual circumstances of the case. In determining the scope of the requirements of natural justice the observations of Gleeson CJ in Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam (2003) 195 ALR 502 at [34] and [37] that what must be demonstrated is “unfairness” and that the concern of the law is to avoid “practical injustice” are pertinent. Procedural fairness in the present context required that the applicant be given a reasonable opportunity to present her case that she was a refugee to the Tribunal and to answer any information in the possession of the Tribunal that suggested otherwise. The content of the rules of natural justice in the context of a statutory power such as that conferred on the Tribunal under the Migration Act 1958 (Cth) involves, as Hely J noted in NAHF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [34],

    “a consideration of all the circumstances including the nature of the jurisdiction being exercised and the statutory conditions governing its exercise.  The statutory framework is of crucial importance in determining the content of the rules of natural justice (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1964 – 1965) 113 CLR 475, 503).”

11. Under the Migration Act 1958 the Tribunal’s power is, relevantly, to review decisions to refuse to grant protection visas.  By s.425 it is under a statutory obligation to issue an invitation to an applicant to attend a hearing.  It is well established that the invitation to a hearing must not be a hollow shell or an empty gesture (Mazhar v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1759 at [31]).

12. Procedural fairness “is directed to the obligation to give a fair hearing”: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [14]. There is a distinction between the fairness of the procedure and the fairness of the decision produced by the procedure (see Ruangrong v Minister for Immigration & Ethnic Affairs (1988) 14 ALD 773 at 776 per Davies J, Chief Constable of North Wales Police v Evans [1987] 1 WLR 1155 at 1173 and McHugh and Gummow JJ in Lam at [105] emphasising the “fairness of the procedure adopted rather than the fairness of the outcome”). 

13. While it has been established that a failure to accord procedural fairness constitutes jurisdictional error (Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425; Ex parte Aala (2000) 204 CLR 82 per Gleeson and Gummow JJ at 101, Kirby J at 135 and Hayne J at 143) and that s.474 of the Migration Act 1958 does not protect a purported decision made as a result of jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 CLR 24), section 422B seeks to exclude the common law requirements of natural justice (see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [30]). The precise effect of this provision is yet to be determined authoritatively. However, for the reasons below it has not been established that there was a failure to accord procedural fairness. Hence it is not necessary for me to determine whether, and the extent to which, natural justice obligations may arise by implication from s.425 or, despite s.424B, as a matter not dealt with in Division 4 of Part 7 of the Migration Act 1958 or otherwise. 

14. Both the common law concept of procedural fairness and s.425 require that the Tribunal is bound to give a person affected by its decision an opportunity to be heard.  Underlying this obligation is the entitlement of an applicant to know the case sought to be made against him and to be given the opportunity to reply to it (Kioa v West (1985) 159 CLR 550 at 582 per Mason J). However: “Generally where it is clear that factual matters are in dispute it will not be necessary for the decision-maker to indicate to the person affected that the decision-maker is likely to reach an adverse conclusion”:  WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [46]. The Tribunal is not obliged to bring to the applicant's attention issues that are obvious from the known material or from the nature of the decision to be made (see Commissioner of ACT Revenue v Alphaone Pty Ltd (1994) 49 FCA 576 to [591] – [592] applied by the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327). There is no unfairness where a person affected knew what he or she was required to prove to the decision-maker and was given the opportunity to do so. An applicant in those circumstances could not complain if the decision-maker rejected what was put forward without notice to the applicant.

15. The Tribunal member is not required to invite comment on his or her thought processes or what he or she is minded to decide (Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [28]) although the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with them and procedural fairness may extend to require identification to the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Alphaone at [30]) whether that is material provided by the applicant or from other sources. For the requirements of natural justice to be satisfied it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant's attention” or that the applicant is “on notice of its essential features” (NAOA at [25] referring to Pilbara at 557 and cases there cited).

16. In this instance the applicant was warned, by the invitation to hearing letter, that the Tribunal was not able to decide the matter in her favour on the material then available.  Subsequently more material was supplied.  Then, early in the hearing, the Tribunal put the applicant on notice that it found her story “fantastic” and “hard to believe”.  This was despite the fact that the Tribunal is “in general … not obliged to inform an applicant of its preliminary or evaluation concerns about the material before it” (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [27] citing Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 555 – 557). However if it does (as in this case) it is then a matter for the Tribunal to evaluate the applicant's response to such concerns (NAOA at [27]). The Tribunal is neither obliged to believe an applicant or to be satisfied by anything he or she says.

17. As explained in Re Ruddock; Ex parte Applicant 154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [57] the Tribunal is not in the position of a contradictor and the member conducting the hearing is not an adversarial cross-examiner but an inquisitor “obliged to be fair” (ibid at [57]). It was for the applicant to advance whatever evidence or argument she wished and for the Tribunal to decide whether the claim had been made out. It was not part of the Tribunal’s function to seek to damage the applicant’s credibility. Here the Tribunal put to the applicant its “preliminary or evaluation concerns” when it told her that it found her story “fantastic” and “very hard to believe”. It gave her an opportunity to address these concerns. If natural justice principles required identification of this issue, the Tribunal met its obligation. However this statement did not mean that the Tribunal had determined before the hearing that her claims were fabricated and the Tribunal was not obliged to put to the applicant its ultimate conclusion that she had fabricated her entire claim. At no stage did the Tribunal tell the applicant that her evidence would be accepted.

1. Nor was there evidence that the applicant was misled.  To the extent that the Tribunal preferred to concentrate on the taking of oral evidence, no lack of procedural fairness has been established.  I am not persuaded that the Tribunal indicated that whatever oral evidence was given would be accepted.  No jurisdictional error has been established in the way the Tribunal dealt with the offers of documents.  The conduct of the hearing was consistent with an assumption, in the applicant's favour, that the specified documents would be available as indicated but such documents would still leave the Tribunal needing to base its decision on its impression of the applicant's own evidence about her claims.  This is consistent with its indication that it would be better assisted by hearing the applicant's oral evidence.

2. The evidence offered, if meeting its description, would still have required the Tribunal to determine whether the claimed incidents and injuries to the applicant and her mother and her father’s condition and death had happened for the reasons claimed.  In those circumstances it was unsurprising that the Tribunal would find the oral evidence more helpful.  There was no indication that any of the documents would provide direct evidence of the reason injury had occurred to any of these people. 

3. It is relevant to have regard to the consideration of the material proffered in the hearing.  The applicant provided the Tribunal with another letter from the local priest.  The Tribunal pointed out that it was in the same terms as the earlier letter.  However it was placed on the Tribunal file and referred to in the decision.  The applicant said she had reports in Arabic and English about her father’s condition and the circumstances of his death.  The Tribunal asked if she had them with her and she asked “Do you want them?”  The Tribunal member replied “Yeah”.  In her affidavit of 23 August 2005 the applicant stated that she handed these documents to the Tribunal member.  In light of the absence of any explanation linking her father’s condition to the reasons the applicant gave for it there is no error in the Tribunal then stating:  “No I don’t think the medical material helps me at all but, no I think I’d prefer to hear your story.  But thank you for that”.

4. The document offered to the Tribunal about an incident in which the applicant’s mother broke her leg was described by the applicant as “a letter that talks about that incident and how my Mum broke her leg”.  It was in Arabic.  The Tribunal member replied “That’s OK, I’m just noting it down”.  There was no obligation on the Tribunal to arrange for a translation of such letter (which the applicant’s affidavit now indicates is a hospital admission card referring to her mother’s broken foot due to a collision with a motor cycle).  In its letter of 27 November 2003 the Tribunal had advised the applicant that she should “immediately” send “any documents, information or other evidence” she wanted the Tribunal to consider and that “any documents not in English should be translated by a qualified translator”.  This requirement was repeated in the invitation to a hearing dated 3 December 2003.  Even if what the Tribunal stated in the hearing amounted to a refusal to consider this particular untranslated document no lack of procedural fairness is established in these circumstances. 

5. I recognise that translation costs may be inhibiting for an applicant who wishes to provide evidence to the Tribunal.  However of itself this does not establish jurisdictional error.  It may well be that in a particular case the Tribunal could be obliged to ensure that untranslated material which was critical to a particular applicant’s case was translated, particularly if such material was personal to an applicant and addressed issues critical to the decision.  However I am not satisfied that this is such a case or that there is a general obligation on the Tribunal to accept and translate information.  I have borne in mind that its statutory objective is to provide a mechanism of review that is “fair, just, economical, informal and quick” (s.420(1) Migration Act 1958).  No lack of procedural fairness or other error constituting jurisdictional error is established in relation to the Tribunal treatment of untranslated documents in Arabic. 

6. Similarly no lack of procedural fairness is established in relation to the Tribunal treatment of the applicant’s offer to send to Egypt for a report about what happened in relation to the claimed acid attack.  Again the applicant was advised in letters of 27 November 2003 and 3 December 2003 to ‘immediately’ (or by 19 December 2003) send any documents she wanted the Tribunal to consider.  There is no suggestion that such report would identify those who carried out such attack or the reason for it.  The hearing was held on 2 February 2004.  In those circumstances the Tribunal was not obliged to allow further time for the provision of such a document.  It considered the applicant’s offer and, in light of her description of the report, did not deny her procedural fairness in indicating it did not need the report and was happy just to take the applicant’s evidence.  This did not amount to an indication that it accepted her claims about why any attack occurred.  It did accept that she may have marks on her body, but was not satisfied that they occurred in the manner claimed.

7. The fact that the Tribunal ultimately weighed the evidence before it as it did, does not alter the conclusion that the conduct of the hearing was procedurally fair.  This is not a case in which the Tribunal rejected the authenticity of documents (see WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [34] per French J. Hence there was no obligation to warn the applicant of the possibility of such finding. The fact that the Tribunal proceeded as it did was consistent with its firm view based on the applicant’s evidence and independent information that the applicant’s claims were fabricated (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]). As French J stated in WAGU at [36]:

   Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.  In such a case, a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on its way to its decision.

8. The Tribunal dealt with the documentary evidence put before it as pieces of evidence which had to be weighed with the other evidence.  It is apparent that while making no positive findings that the documents proffered were not genuine, it accorded them no weight in reaching its conclusion, which reflected its findings made independently of documentary evidence, based on credibility problems with the applicant’s claims (in relation to which the documents were relied on as corroboration).  To proceed in this way was not to deny the applicant procedural fairness (see WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225).

Apprehended bias

1. The final ground in the further amended application is that the decision was affected by apprehended bias.  The applicant relies on a number of particulars.  First, that the Tribunal's first words of substance to the applicant at the hearing were:

   I must say that your story is fantastic.  It is very hard to believe.

2. It is also contended that the Tribunal member rejected the applicant's tender of documentary evidence referred to in the particulars to ground 2, thus creating an apprehension that the documentary evidence could not affect the predetermined conclusion that the applicant's claim was too fantastic to be true.  It was contended that the Tribunal member appeared not to have considered specified independent country information which was said to give weight to the applicant's version of events, being evidence of the special vulnerability of persons in Egypt converting from Islam to Christianity and of those who encouraged such conversions and by inference those who provide comfort, assistance, shelter and care to converts from Islam to Christianity.

3. It was submitted that the Tribunal made an adverse finding on the applicant's credibility because, in part, of a submission that the applicant did not make, creating an apprehension that the Tribunal received the evidence with certain preconceptions.  The Tribunal was sceptical that the first “attack” on the applicant should be via the alleged poisoning of her father and considered, as stated in its decision, it to be “inexplicable” that there should be a break of more than a year before the next attack on the applicant.  It was contended however that the applicant did not submit that the poisoning of her father was an attack on her, but rather made it clear that she did not know the specific reason for such attack and speculated that it may have resulted from a discussion between her father and the person who was said to have poisoned him.  It was submitted that the Tribunal’s misstatement of the effect of this evidence would create an apprehension that it was not receiving the evidence with a mind open to the claims of the applicant. 

4. In submissions it was contended that following the initial words of the Tribunal, its view that the claims had been fabricated did not change throughout the course of the hearing or decision-making process, notwithstanding efforts made by the applicant to present evidence consistent with her story (most notably the scar upon her body which the Tribunal refused to inspect).  It was said that whatever the intention of the Tribunal, to a fair-minded observer the rejection of the material after putting to the applicant that her claims were hard to believe would give rise to an apprehension that the member was consolidating his view that the claims were fantastic, rather than that he was engaged on a course of investigation into the veracity of the claims (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] – [31] and NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264). It was also contended that the Tribunal appeared not to have considered certain country information and that the failure to do so would raise an apprehension that the Tribunal member's mind had been and continued to be closed to evidence that would lend weight to the applicant's case.

5. When these matters were taken together it was said that they evidenced a failure by the Tribunal member to consider both the evidence tendered and independent country information supportive of the applicant's claim which created an even stronger apprehension that the Tribunal member’s mind was closed to evidence that was supportive of the applicant's version of events and credibility than would be raised by the matters viewed separately.

6. It was contended that if a lack of procedural fairness was established on ground 2 or 3 the Tribunal's alternative findings on relocation and protection by the Egyptian authorities should not stand and the matter should be remitted as it could not be presumed what further evidence the applicant might have adduced had she been given a fair hearing and what impact that evidence might have had on the Tribunal's findings (Stead v State Government Insurance Commission (1986) 181 CLR 141; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at 4 and Kirby J at 131).

7. The test to be applied in determining whether the conduct of the Tribunal gave rise to an apprehension of bias is whether a “hypothetical fair-minded lay person who is properly informed as to the nature of proceedings, the matters in issue and the conduct which is said to give rise to an apprehension” (see Re Refugee Review Tribunal; Ex part H (2001) 179 ALR 425 at [28]) might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. However, as stated in Ex parte H at [30]:

   “Where … 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”. 

8. So it was in this case.  The Tribunal plainly confronted the applicant with its concerns about the believability of her story.  However there is nothing in the transcript of the hearing to suggest that the Tribunal overbore or intimidated the applicant.  Apprehended bias is not established.  The early indication by the Tribunal that the applicant's story was "fantastic" and "hard to believe" put the applicant on notice of its concerns.  A reasonable person would not have seen such comments as a final view of the applicant's evidence which the Tribunal was unwilling or unable to alter regardless of what was further put.  The Tribunal was plainly interested in hearing what the applicant had to say.  Faced with the applicant's repeated mention of her embarrassment about the scarring on her leg, the Tribunal was entitled to say it did not need to see the scar, as even if it had seen scarring it would have been no better equipped to adjudge how or why it had happened.  Indeed, the Tribunal did not actually refuse to allow the applicant to show the scar, but only said that it did not need to see it.

9. The Tribunal's alleged "rejection" of the documentary material is discussed above.  Its statement that it would be more assisted by the applicant's oral evidence said nothing as to how it would evaluate the further evidence.  There was nothing about the way in which the offers of documents were dealt with that would cause a reasonable person to apprehend that the Tribunal was unable or unwilling to bring a fair mind to bear.

10. As to the complaint about the Tribunal not referring to particular aspects of country information, it has not been established that a reasonable person would see this as an indication of bias.  As was stated by Beaumont, Lindgren and Tamberlin JJ in NAOO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26 at [14] to the effect that:

    There was no ground for judicial review available because country information "was not actually utilised properly" and described the contrary contention as "no more than a claim for" merits review.

11. Further, consistent with what Heeley J stated in SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16], the weight to be given to country information, its accuracy and its relevance are matters for the Tribunal and not the Court (also see NAHI v Minister for Immigration & Multicultural [2002] FCAFC 10 at [11]).

12. Finally, the submission that the Tribunal made an adverse finding on credibility because, in part, of a claim that the applicant did not make is not such as to establish apprehended bias.  It fails to take account of the evidence put forward by the applicant connecting the poisoning of her father to the action against her and also blaming the poisoning on the same police officer at whose instigation the applicant claimed to have herself suffered. 

13. In conclusion, while neither a lack of procedural fairness or apprehended bias has been established, as discussed above, the Tribunal fell into jurisdictional error on the basis contended for in ground 1.  Hence relief should be granted. 

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 December 2005