SZFRZ v Minister for Immigration - [2005] FMCA 1353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFRZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1353

MIGRATION – Refugee Review Tribunal – Protection visa – Applicant recognised as a refugee and granted protection visa – further application refused – approach to a case of possible cessation of refugee status – application of s.36(3) of Migration Act 1958 – whether apprehended bias – whether misleading information or statements made concerning country information – whether breach of s.424A of Migration Act 1958.

Migration Act 1958, ss.36(3), 424A

QAAH/2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 136
MZWLH v Minister for Immigration [2005] FMCA 1200
Minister for Immigration & Multicultural & Indigenous Affairs v Applicant 1031/03
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009
Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte Lam (2003) 195 ALR 502
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 872

Applicant:

SZFRZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 350 of 2005

Judgment of:

McInnis FM

Hearing date:

24 August 2005

Delivered at:

Melbourne

Delivered on:

19 September 2005

REPRESENTATION

Counsel for the Applicant:

Dr S Donaghue

Solicitors for the Applicant:

Oboodi Barristers & Solicitors

Counsel for the Respondents:

Ms H Riley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Decision of the Refugee Review Tribunal dated 21 December 2004 be set aside.
The matter be remitted to a differently constituted Tribunal to be considered according to law.
The Respondent shall pay the Applicant’s costs.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG 350 of 2005

SZFRZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(As Corrected)

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) made on 21 December 2004. The RRT had affirmed a decision of the delegate of the first respondent to refuse to grant to the applicant a protection visa.
The applicant relies upon an amended application filed 11 May 2005.
The applicant is a citizen of Afghanistan who arrived in Australia on
28 November 2000. He was granted a temporary visa on 4 January 2001. On 9 March 2001 the applicant applied for a permanent protection visa. That application was refused by a delegate of the Minister on 28 May 2004. It was that decision which was then subsequently affirmed by the RRT, as indicated earlier, on 21 December 2004.
The applicant's original application for a protection visa, as indicated, was successful. In that application he claimed he was from Kabul and was of Tajik ethnicity and was married, with a number of young children. He claimed both his parents were still alive and that he had two brothers, one of whom was missing. He claimed that until he left Afghanistan he had been a successful businessman who was self‑employed, and that his life was in danger in Afghanistan because of the Taliban and that he was sick of the beatings and oppression of everyone who was a Tajik.
Other claims were made by the applicant, including claims that he had been taken by the Taliban to a province in Afghanistan where he was kept a prisoner in early 2000. There he was given food at least once a day. The commander or the subordinates would hit the applicant with a lash and demand that he pay money so that he could be released.
The delegate who considered the applicant's first protection visa application accepted the applicant was owed protection obligations by Australia, and in particular accepted that the Taliban had targeted Tajiks in Afghanistan.
In support of his second protection visa application the applicant provided a statutory declaration dated 9 September 2003. He referred to details of difficulties experienced by his family since the fall of the Taliban. He claimed that his father had been detained by the same commanders who persecuted him before he fled Afghanistan (Court Book page 45). In its decision the Tribunal records the following:-
“… He claimed that these people were part of the government but that they worked for themselves and did what they wanted to do with impunity because they were commanders with power and were armed. The applicant stated that there was no protection for people against the abuses of these commanders who could do what they wanted to do with impunity. ….
...
The applicant claimed that he was very afraid that if he returned to Afghanistan he would be persecuted by the same people for the same reasons as he had been persecuted before and because he had escaped from them. He claimed that these commanders have changed allegiance and now have power in Kabul. He claimed that nobody cares that they were formally supporting the Taliban and they continue to commit human rights violations against their opponents with impunity, by committing violence and extortion against their opponents. He claimed that there was nothing he could do to stop them and no authority would protect him.”
(Court Book page 102-103)
I accept that the applicant's case essentially involves a claim that he would be persecuted by people who had formally allied themselves with the Taliban but who had shifted their alliances and remained in positions of influence in Afghanistan.

The Tribunal decision

In its findings and reasons the RRT states the following (Court Book page 111):
“The Tribunal considers it appropriate to start by considering whether, in accordance with Article 1C(5) of the Convention, the applicant can no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee have ceased to exist. If that is the case, Article 1C(5) will operate so that the Refugees Convention will cease to apply to the applicant.”
The Tribunal states the following (at Court Book p.111):-
“The applicant was granted refugee status on the basis of having a well‑founded fear of persecution from the Taliban for reasons of his Tajik race and ethnicity and the independent evidence indicating that the Taliban were targeting Tajiks at that time. However, as discussed with the applicant at the hearing, the situation in Afghanistan has changed significantly since he left in 2000. …”
The RRT then proceeds to consider United States State Department country reports and states, after considering that material, the following (Court Book p.112):-
“In light of this information, I find that the Taliban no longer governs or administers Afghanistan or has the capacity to act as a de facto government in any way. This finding applies to the entirety of the country, including the area around Kabul where the applicant is from.
Nevertheless, although they have been removed from government, former Taliban and their allies continue to cause serious security problems for the Karzai administration and coalition forces in some parts of Afghanistan. In the recent past there have been an increasing number of attacks against government facilities and personnel and against international organisations supporting the government.
...
The targets of the attacks described above have principally been government and international agencies and foreign troops supporting the government. Although there have been civilian casualties, there has been no widespread or organised targeting of ethnic and religious groups as occurred during the period when the Taliban were in power. The attacks have occurred mainly in the southern and eastern border regions. Despite the instability they have created, there is no evidence before me which indicates that the remnants of the Taliban and their allies have the capacity to regain control of Afghanistan. I have considered the comments of the applicant and the submission from the applicant's adviser suggesting that the Taliban still exists in Afghanistan today and that they still have the capacity to make strikes against targets in Kabul, however on the basis of the overwhelming independent information before me I am satisfied that the commitment of the international community to the political process agreed to in Bonn in December 2001, and the progress which has been made so far in establishing a new form of government for Afghanistan, is such that there is not a real chance of the Taliban regaining power in Afghanistan in the reasonably foreseeable future.”
(Court Book page 113)

The amended application

In the amended application filed 11 May 2005 the applicant relies upon the following ground:-
“1.The Decision involved a jurisdictional error, in that it was made in breach of an imperative duty or inviolable limitation imposed on the Tribunal.

Particulars

(a)The Second Respondent contravened s 424A of the Migration Act 1958 (Cth) (the Act) by failing to disclose country information which formed the reason or part of the reason for the Decision in the matter required by s 424A.
(b)The Second Respondent contravened s 424A of the Act and/or the rules of procedural fairness by making misleading oral statements as to the content of the country information which formed the reason or part of the reason for the Decision.
(c)The Decision of the Second Respondent was made in contravention of the rules of fairness in that the conduct of the Second Respondent during the hearing might have led a reasonable observer to apprehend that the Second Respondent might not have brought an impartial mind to the consideration of the Applicant's claims.
(2)The Decision involved a jurisdictional error in that it involved a constructive failure to exercise jurisdiction.

Particulars
(a)The Second Respondent failed to address an integer of the Applicant's claims for a protection visa, being his claim that people who held positions of authority under the Taliban remained in Kabul in positions of authority. That claim could not properly be addressed or answered simply by a finding that the Taliban was no longer in power in Afghanistan.
(b)The Second Respondent erred in law in finding that it misunderstood or misinterpreted article 1C of the Refugees Convention, and erred in finding that the question that arose under Article 1C was the same as the question posed under Article 1A(2) of the Refugees Convention.
(c)The Second Respondent erred in law in applying s 36(3) of the Act in order to assess whether the Applicant satisfied Article 1A(2) of the Refugees Convention and/or wrongly considered that s 36(3) required and/or enabled the Tribunal to assess whether the Applicant had a well‑founded fear of persecution for reasons related to the circumstances in connection with which he was originally recognised as a refugee.”

Relevant law

The court has had cause to consider a recent relevant authority of the Full Court of the Federal Court in the matter of QAAH/2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 136. For reasons given in the decision of the court in MZWLH v Minister for Immigration [2005] FMCA 1200 particularly paragraphs 13 to 17 and 21). I accept that this court is bound by the Full Court decision in QAAH and incorporate it and apply in this decision my reasoning in the earlier matter.
Applying the authority of the Full Court in QAAH, I accept as submitted by the applicant that in this instance the RRT has failed to make appropriate findings and consider relevant issues specifically directed to the claim made by the applicant. The findings in relation to the capacity of the Taliban to regain control of Afghanistan or to regain power, and the further finding that it no longer governs or administers Afghanistan or has the capacity to act as a de facto government in any way, does not address in my view the specific issues raised by the applicant.
To that extent, applying the authority of QAAH to the facts of the present case, I am satisfied there has been an error of law of a kind which would constitute jurisdictional error, and on that basis alone the decision of the Tribunal should be set aside and the matter remitted for further consideration, with an appropriate order as to costs. Hence in my view the second ground relied upon can be sustained.
I am further satisfied that, again for reasons stated in the matter of MZWLH the RRT has erred in this instance in its application of s.36(3) of the Act. In MZWLH I stated the following in relation to s.36(3), which in my view applies to the facts and circumstances of this application:-
“28.Counsel for the Applicant submits and I accept that s.36(3) of the Act does not operate at all in relation to a person who has already obtained a protection visa. It is argued that that section is directed to persons who have come to Australia to seek protection in circumstances where there are other countries where they could have sought protection whether those countries were visited on the way to Australia or were counties where the person had a right to enter and reside either temporarily or permanently. It was noted that the provisions, that is sub-s.36(3)-(5) were introduced by the “Border Protection Legislation Amendment Act 1999 which received royal assent on 8 December 1999. The purpose of the amending sub-sections it was submitted was to cover situations where by no offending the principle of non-refoulement it could be said the person “would not be owed protection obligations where he had no availed himself of a right to return to a safe third country where he or she would not be persecuted or returned from there to a country where he would be persecuted”.
29.Counsel noted that the amending legislation followed decisions of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and Tharmalingam v MIMIA (1999) FCA 1180. Reference was made in the alternative to s.36(3) not appearing to have any relevance in any event in the present case if a fresh assessment was required on the Applicant’s refugee status. Ultimately it was submitted that s.36(3) and (4) are not provisions have general application beyond the clear legislative purpose for which they were enacted.
30.It is noteworthy that the Full Court in QAAH was no doubt aware of s.36(3) and consistent with the reasons advanced by Counsel for the Applicant in the present case did not regard that section as being applicable to that case. If it was not applicable in QAAH then I find it difficult to conclude that it would apply in the present application. In my view the submissions made for and on behalf of the Applicant in relation to the operation of s.36(3) are correct. I do not regard that sub-section as operating in a manner which would detract from the task to be undertaken by the Tribunal in considering this application dealing as it does with the issue of the cessation of refugee status. To that extent I am satisfied that the RRT in this instance has made a further error of law and jurisdictional error when it made the finding set out earlier in this judgment that s.36(3) would apply in respect of the operation of the cessation clauses.”

Other Grounds of Review

Misleading statements as to the content of the country information

In support of this ground the applicant claimed that the RRT denied procedural fairness to the applicant by making misleading statements during the hearing as to the content of the country information. Reference was made to the second supplementary court book, which comprised a transcript of the proceedings before the RRT held on 28 September 2004. Specific reference was made to the following extract from page 14 of the transcript:-
“TRIBUNAL: I will tell you what the Department of Foreign Affairs and Trade, the Australian Department of Foreign Affairs says. It informs me that there is no persecution of Tajics in Kabul today, either for ethnicity or their religion. No persecution of Tajics by Pashtuns. No persecution of Tajics by Hasaras. In fact, the Department of Foreign Affairs and Trade informs me that because Tajics hold key positions of influence in the current government, life is quite stable for Tajics in Kabul. That is the information I have; credible, reliable information. That information is very persuasive to me. Would you like to comment on it?”
Further, at page 16 of the transcript the Tribunal states the following:-
“I have information about what is going on in that area. And that information indicates that the Taliban aren't active in the area. And that people - and people's homes aren't being taken over by commandos. So - I mean, you are asking me to go and get the information, and I'm telling you, do I believe the information I get, or do I believe what you are telling me today? I want you to tell me about the second time your father was taken away?”
It was submitted by counsel for the applicant that both the passages contained misleading statements as to the content of the country information. As no information was quoted by the Tribunal in its reasons to support the claim that there was "no persecution" of Tajiks, or the claim that information stated that "people's homes aren't being taken over by commandos", it was argued that the court is entitled to infer that if the Tribunal had in its possession material that related directly to the applicant's claims, that material would have been mentioned in the Tribunal's reasons. By claiming that it had country information which specifically contradicted the claims that the applicant made, it was argued the Tribunal contravened the rules of procedural fairness.
Reliance was placed upon the obligation of the Tribunal not to put country information to the applicant in a misleading fashion. Reference was made to the decision of Lander J in Minister for Immigration & Multicultural & Indigenous Affairs v Applicant 1031/03, where the court states the following:-
“In my opinion, there can be no doubt that a Tribunal, such as the RRT, has a positive obligation in according a party procedural fairness in the conduct of its proceedings to ensure that the party is not misled by the Tribunal itself.
A party appearing before the RRT is entitled to assume that the RRT will not mislead the party and that any proposition put to the party as being evidence contained in country information can be relied upon as being accurate.
The RRT has an obligation to put any country information upon which it seeks the applicant’s comments in a balanced fashion so as not to mislead the applicant. (emphasis added)”
It was argued that there is no proper basis in this case upon which the relief could be refused on discretionary grounds, given the breach of the rules of procedural fairness. Reliance was placed upon the recent decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 [79]-[84], [174], and [211].
The respondent submitted that in this instance the Tribunal did not rely on its reasons for decision on the allegedly misrepresented country information, but rather based its decision on the applicant's failure to substantiate its assertions that former Taliban commanders were now in positions of power in Kabul and, on country information which the Tribunal cited verbatim in its reasons for the decision, that the international security alliance force under the command of NATO was responsible for the security of Kabul.
It was argued that given the finding on a separate basis, apart from country information, that any failure to set out that relevant country information would not have been required, and further that the court should not infer that because the Tribunal did not set out the relevant country information in its reasons for decision, it did not have that information in its possession. Even if it had misrepresented the country information in its possession, which is denied, it was submitted the Tribunal gave the applicant an opportunity during the course of the hearing to comment on that information and correct it.

It was argued that a misleading statement of itself does not constitute a denial of natural justice (see Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte Lam (2003) 195 ALR 502). It was further argued that in any event, even if there was a misleading statement, it did not form part of the Tribunal's decision that was made at the outset of the hearing, or in the alternative there is no evidence the applicant was actually misled by the statements made by the Tribunal.
The decision of the High Court in SAAP was based upon a statutory duty imposed by s.424A of the Act, only one justice expressing a view clearly that the circumstances of that case amounted to a denial of procedural fairness. It is argued that it cannot be claimed that SAAP determined that there is no discretion in such matters, and a denial of procedural fairness must be remedied even where the applicant has suffered no unfairness at all.
Accordingly it was submitted by the respondent that there was no proper basis to conclude that the Tribunal statements were misleading. In any event, it was argued the applicant was not actually misled and he would not have done anything differently if the statements had not been made.
In my view the court is entitled to draw an inference that the Tribunal did not have the relevant information in its possession, which led it to make the statements referred to earlier in this decision concerning the claim that there was no persecution of Tajiks by the Taliban or their allies. As a matter of procedural fairness, applying the decision of Lander J in Applicant M103, I am satisfied there has been a denial of procedural fairness simply on the basis that the Tribunal has not conducted itself or provided comments in a balanced fashion so as to not mislead the applicant.
When information is used in the extract as set out earlier in this judgment, then the clear inference sought to be achieved by the Tribunal is that there is other independent country information to support the line of questioning. If that information is not provided or referred to by the Tribunal, then it is reasonable to draw an inference that it did not in fact possess that information. If that inference is correct, then clearly the assertions made during the course of the exchange by the Tribunal may constitute a failure to make comments in a balanced fashion, and moreover lead to the applicant being misled.
Whilst it may be the case that not all justices who decided SAAP found it necessary to go beyond the statutory duty imposed by s.424A of the Act and consider there was a breach of procedural fairness, at least one Justice, McHugh J, did express the view that the case amounted to a denial of procedural fairness. In the present case I am satisfied in any event that there has been a denial of procedural fairness of a kind where I am satisfied that clearly the applicant would have suffered unfairness simply by reason of the fact that he was more likely to be misled by the statement and that it is speculative as to whether he would have done anything different had the statements not been made. That raises the important issue of the accuracy and reliability of country information sought to be relied upon by a tribunal, though not disclosed either in its reasons or to an applicant during the course of a hearing.
Accordingly, in my view the ground of denial of procedural fairness, relying as it does on a misrepresentation of country information, should succeed, and provides another basis upon which the application should be remitted.
A great deal of time was devoted to considering the further ground of alleged apprehended bias. I apply the following passage from Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 872, where Her Honour states:-
“82 I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 ("Applicant VCAT of 2002"): see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant's claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant's claim when the hearing commences: see s.425(1)-(2). The vice in this case was that, by the Member's conduct during the hearing, 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. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.”
It was contended by the applicant that the decision in this instance was vitiated by apprehended bias, and reference was made to the following:-
a)Repeated comments made by the Tribunal during the hearing, including the Tribunal’s strongly expressed statement (quoted below) that it thought that ‘Life is pretty good for Tajics in Afghanistan today – in Kabul today’ which suggested that the Tribunal was not open to persuasion;
b)Repeated suggestions during the hearing that the Tribunal disbelieved the applicant’s evidence, particularly when combined with the absence of any credibility finding in the Tribunal’s reasons (which suggests that the Tribunal’s reasons do not give a complete account of the basis upon which the decision was reached);
c)Repeated overstating by the Tribunal of the contents of the country information upon which it relied;
d)The strong positive findings adverse to the applicant made by the Tribunal in circumstances where, at its highest, it was open to the Tribunal to do no more than finding that it was not satisfied of the applicant’s claims. [CB115.6, 116.5]
In support of those contentions, reference was made a number of exchanges. It was claimed the Tribunal made repeated comments that might have led a reasonably informed observer to apprehend that it had prejudged the applicant’s case. Thus, during the course of the hearing the following exchanges occurred:
“TRIBUNAL: Why did the commandos take over the house?
APPLICANT: Because they wanted – they were the commandos who actually took me away. And because they wanted to find me, that is when they took the houses out, as a kind of guarantee.
TRIBUNAL:   I don’t believe you for a minute. I do not believe you for a minute.
…
TRIBUNAL: I will tell you what I think. I will tell you what I think. I think you had some problems with the Taliban. Fine. You took the opportunity to leave Afghanistan. You were one of the lucky ones. You had money. And you paid when you came to Australia. Things changes. Life is pretty good for Tajics in Afghanistan today – in Kabul today. It is not as fantastic as Australia, I know that. I know it is not as fantastic as Australia.
TRIBUNAL: I think you can go back to Kabul today, and return to a pretty normal life, like you were living before the Taliban came. That is what I think. Tell me why you can’t go back?
…
APPLICANT: I have a brother which we haven’t contacted for many years.
TRIBUNAL:   Well, why not?
APPLICANT: Since my other brother was taken away, he stopped his contact with us.
TRIBUNAL:   Look, you have a brother in Kabul. You have a father, a mother, a wife and two children. You haven’t heard from your father, your mother, your wife and your two children from more than four months. Any you won’t contact your brother in Kabul to see if he could find them and let you know what has happened to them? I don’t believe you for a minute.
….
TRIBUNAL:   Why didn’t you write to him?
APPLICANT: Well, the thing is, we didn’t have any … because once my other brother was taken away, he all escaped, he didn’t help us.
TRIBUNAL:   That is no reason not to write, if you are sitting here worried about your children for four months, and not knowing where they are, you would move heaven and earth.
APPLICANT: That is right, I love them. Have you experience, if you are away two days from your children, each other, you probably … them away. But I am away from my children for four years.
TRIBUNAL:   Well, it doesn’t strike me as though you have tried very hard to – to find out what has happened to them.
APPLICANT: I tried as much as I could, and it is just that I know – I contact that person. The thing is, he also of the – afraid too that if you go to that area and ask everyone else. Because he doesn’t want to put his life in danger, because of my family.
….
TRIBUNAL:   It still doesn’t explain to me why you haven’t written to your brother to see if he can find your family?
APPLICANT: So my brother he didn’t care about our family. He was saving his own life more. Yes, people don’t want to get in trouble like when my brother was taken out, my father went to Taliban, to ask him to release him, but he was – it is like he was beaten up by the Taliban.
TRIBUNAL:   Look, you are not answering my question are you? You are not interested in answering my question are you?
APPLICANT: I am talking and answering your question now.
TRIBUNAL:   Well, look as I said, I am very reluctant to believe anything you say in regards to what has happened to your father and your family since they returned to Kabul. We have discussed all that. Is there anything you want to tell me that you haven’t told me yet?
APPLICANT: If you don’t believe in this, well, I don’t know what to say…. I am going to tell you the truth and that is what I did.” (emphasis added)
It was claimed that those exchanges demonstrate that the Tribunal repeatedly and aggressively informed the applicant that it did not believe his evidence. It was argued that it was somewhat extraordinary that the applicant was told that he was one of the "lucky ones", despite the fact that he had actually been granted a protection visa due to a well-founded fear of persecution by the Taliban.
Further reference by the Tribunal that "life is pretty good for Tajiks in Afghanistan today", although not as "fantastic" as Australia, went far beyond anything supported by any country information before the Tribunal. The comment, it was argued, strongly supports at least a reasonable apprehension that the Tribunal was not open to persuasion.
It was further submitted that the extract suggests that little or no attention was being paid to the applicant's answers and that the Tribunal had a fixed view on how the applicant ought to have behaved, and gave no proper consideration to the explanations for his actions. In supplying the authority of Kenny J in VFAB, it was submitted the same comments were applicable to the present case and the decision therefore should be set aside on that ground.
The respondent likewise referred to the passage from Kenny J in VFAB, though further referred to an earlier paragraph as follows:-
“81 Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.”
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.”
It was argued that throughout the Tribunal hearing it had made statements and/or asked questions of the applicant which showed that the Tribunal retained an open mind. By way of example, reference was made to a question, "Tell me why you can't go back?" and, "Is there anything you want to tell me that you haven't told me yet?" It was argued there were virtually no interruptions and signs of sarcasm, and both the applicant and his adviser were asked a number of times if they wanted to say anything else.
In my view, on a proper reading of the transcript and in particular those matters referred to earlier in this judgment, I am satisfied that the comments made by the Tribunal go beyond what could otherwise be described as facilitating a non-partisan investigation into the facts. Gratuitous comments concerning an applicant being "one of the lucky ones" and that life in Afghanistan for Tajiks is "not as fantastic as Australia" appear to me to be inappropriate, and ultimately when a tribunal states to an applicant "I am very reluctant to believe anything you say" it is little wonder that the applicant effectively, in the extract set out earlier, appears to give up by saying, "If you don't believe in this, well, I don't know what to say ... I'm going to tell you the truth and that's what I did."
The issue of apprehended bias is perhaps more evident in an application of this kind, where an applicant has already been granted a protection visa, albeit on a temporary basis. To be granted a protection visa on the basis that a person is found to have a well‑founded fear of persecution is hardly a basis upon which one would characterise that person as being one of the "lucky ones". I accept as submitted by the applicant that those remarks, and others referred to in the extract, indicate to a fair-minded observer that there was little that the applicant could state by way of evidence or submit by way of argument that might change the Tribunal's mind about the claim in this instance.
Whilst it may be true that the transcript itself does not contain a series of interruptions, it is relevant to look at the content of the comments referred to earlier in this judgment. The content of those comments may be sufficient to draw the conclusion that I have drawn, applying the authority referred to in VFAB. It is not necessary for comments to be made frequently, but rather it is important in matters of this kind to also consider the content of the comments made, which in my view are sufficient to make a finding that in this instance, as stated earlier, a fair-minded observer might well infer that there was nothing further the applicant could have done by way of evidence or submission to change the Tribunal's mind about the claim. Hence I am satisfied that the claim based upon apprehended bias should also succeed.

Conclusion

For the reasons given, it follows therefore that the decision of the RRT dated 21 December 2004 should be set aside and the matter remitted to a differently constituted Tribunal, to be considered according to law, and that the first respondent should pay the applicant's costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 20 September 2005