SZGQI v Minister for Immigration
[2007] FMCA 1461
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGQI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1461 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 363, 422B, 424, 424A, 427, 476 |
| Applicant A169 of 2003 v the Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 Luu v Renevier (1989) 91 ALR 39 MAAP v the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 358 Perera v the Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 Re: Refugee Review Tribunal; Ex parte H (2001) 17 9 ALR 425 SYSB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1259 SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 359 STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 118 SZATG v Minister for Immigration Multicultural & Indigenous Affairs (2004) 215 ALR 358 SZDFF v Minister for Immigration Multicultural & Indigenous Affairs [2005] FMCA 56 SZEOP v Minister for Immigration [2005] FMCA 443 VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs 2004 FCA 459 VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration & Multicultural Affairs (2002) FCR 407 WAEE v Minister for Immigration Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZGQI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2618 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Sant |
| Solicitors for the Applicant: | Mr S O'Connor of The Legal Aid Commission of New South Wales |
| Counsel for the First Respondent: | Ms S A Sirtes |
| Solicitors for the First Respondent: | DLA Phillip Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 15 September 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2618 of 2006
| SZGQI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGQI”.
These proceedings were commenced by an application under s.39B of the Judiciary Act1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney registry of the Federal Magistrates Court on 15 September 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 10 August 2006 and handed down on 22 August 2006, affirming the decision of a delegate of the first respondent made on 1 April 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against a decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A two-part Court Book ("CB") prepared by the first respondent's solicitors was filed on 19 December 2006. I have marked the parts Exhibit "A1" and Exhibit "A2", and their contents were read into evidence.
The applicant in these proceedings filed the following affidavits:
a)Affidavit of SZGQI affirmed on 15 September 2006, attached to which is a copy of the Tribunal decision.
b)
An affidavit of Ms Cvetanka Jankulovska affirmed on
14 February 2007(“first affidavit of Ms Jankulovska”). Attached to this affidavit and marked Exhibit “CJ1” is a copy of the transcript of the Tribunal hearing of 27 April 2006.
c)An affidavit of Ms Cvetanka Jankulovska affirmed on 27 April 2007 and marked “CJ2” attaching two audiotapes of the Tribunal hearing.
d)An affidavit of Ms Cvetanka Jankulovska affirmed on 30 April 2007 (“third affidavit of Ms Jankulovska”). Attached to this affidavit and marked Exhibit “CJ3” is a copy of Mr Acharya's statement of 27 April 2007.
e)An affidavit of Cvetanka Jankulovska affirmed 30 April 2007 (“fourth affidavit of Jankulovska”). Attached to this affidavit and marked Exhibit “CJ4” is a copy of Mr Ram Chandra's statement.
f)Filed on 20 April 2007 is a statement of Mr Acharya.
Background
The Tribunal decision of Mr L Hardy, reference N0653189, provides the following background information:
The applicant who claims to be a citizen of Nepal, arrived in Australia on 15 October 2003 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 18 November 2003. The Delegate decided to refuse to grant a visa on 1 April 2004. The applicant applied to the Tribunal on 23 February 2006 for review of the Delegate's decision.
The Tribunal [first], differently constituted, affirmed the Delegate's decision on 23 March 2005. The applicant then appealed the Tribunal's decision in the Federal Magistrates Court. The matter was remitted to the Tribunal by consent on 30 January 2006 constituted to the presently presiding member.
The applicant appeared before the Tribunal on 27 April 2006 to give evidence and to present arguments. The Tribunal also received oral evidence from a witness, Pastor David Boyd of Jesus Family Centre, Cabramatta NSW. An interpreter was also present.
The applicant was represented in relation to the review by a registered migration agent. The representative attended the Tribunal hearing.(CB 735)
After the hearing, the Tribunal wrote to the applicant on 5 July 2006 inviting the applicant to comment and provide further information.(CB 569-571) The letter sought comment on five separate pieces of information. A response was sent on behalf of the applicant on 19 July 2006.(CB 586-590) Following that response, the Tribunal again wrote to the applicant on 21 July 2006.(CB 645-646) That letter invited the applicant to comment on certain matters the Tribunal needed clarified and/or expanded upon arising from the applicant's response to the
5 July 2006 letter.
The applicant's claims are summarised in the written submissions prepared by Ms Sant and I rely upon paragraphs 3 to 5 of those submissions:
3. The background of the application was that Maoist insurgents declared "people's war" in Nepal in early 1996 and have perpetrated violence against Nepal since that time (CB 243 to 246). The first Tribunal accepted that as recently as 2004 the Maoists continued their "campaign of torture, killing, bombing, forcibly conscripting children, extorting, forcing closure of schools and businesses and committing other serious and gross human rights abuses and that Maoists' inpugnity remained a significant problem." The Maoists continued to kill and torture politicians, civilians and journalists. During 2004 the insurgents killed 409 civilians. The disappearance of people at the hands of the Maoists was a significant problem. CB 246.
4. While he lived in Nepal the applicant was an active member of the Nepali Congress Party and the Jaycees. The reasons he left Nepal was because he had been targeted by the Maoists including having his house bombed primarily because of his political involvement.
5. The applicant explained to the first Tribunal that he was also targeted by the Maoists because of being a businessman and said that constituted membership of a particular social group. He made a separate claim that police authorities might mistreat him because he refused to spy on their behalf or feed the army in his district. He also told the first Tribunal that his father was an ex‑policeman, although it does not appear he explicitly made a claim in relation to his father's status.(CB 243)
The second Tribunal hearing, which is the subject of this Court application, is briefly summarised in the written submissions prepared by Ms Sirtes for the first respondent. I rely on paragraph 8 of those submissions. This is a brief summary of the outcome:
8 The Tribunal:
(a) accepted that the applicant was a Nepalese national (CB 759.3)
(b) accepted that generally speaking businessmen and people who are members, affiliates or supporters of the Nepalese Congress Party would be perceived by Maoists as adversaries. However found that it was a separate matter as to how it might act toward them and found that it was another matter again how the applicant had been treated prior to departing Nepal and how he would be treated on return. (CB 759.4 to 759.5).
(c) rejecting the applicant's claims in so far as they turn on his activities and membership of the NC Nepal Tarun Dal Kaplivastu Jaycees organisation on the basis that the applicant's evidence was implausible and unimpressive (CB 759.7), namely:
(i) the letters from the NC submitted in support of the applicant were expressed generally and there was the significant gap in the applicant's evidence and that the letter was more akin to "warm references".
(ii) found that the alleged "death list" was never produced and that the letters which referred to it were vague as the circumstances as to how it was seen or how, when or why the applicant had been placed on the list (CB 759.8);
(iii) expressed serious concern regarding the letters allegedly sent to the applicant by the Maoists have found that the substance of the letters were inconsistent with the applicant's claims (CB 760.3)
(iv) overall found himself unable to give weight to any of the letters that the applicant brought, received or had sent from Nepal in support of his claims (CB 768.4)
(d) found that having dismissed the applicant's claims to fear persecution from the Maoists by reason of his political opinion, that there was nothing submitted by the applicant to suggest he would suffer persecution for reasons of his membership of a particular social group comprising of "businessmen in Nepal". (CB 761.5)
(e) rejecting the assertion that the applicant's participation in a demonstration in Sydney against the King of Nepal would lead to a real chance that the applicant would be persecuted on return to Nepal (CB 761.7 to 761.8).
(f) found in respect of the plans pertaining to the applicant's religion that:
(i) there was no evidence of successful attempts in Nepal to persecute Christian preachers or missionaries.
(ii) there was an absence of convincing evidence that the applicant had genuinely converted to Christianity and rejected that the applicant would engage in illegal proselytizing in Nepal;
(iii) disregarding the article in the Nepali Samacharpatra on 27 December 2005 which reported Christmas celebrations of Nepalese in Sydney pursuant to s.91R(3) because the applicant had been instrumental in his name being included in that article, which the Tribunal considered to have been done by the applicant to bolster a surplace claim;
(iv) considered whether on the basis of the article, the applicant would be likely to suffer harm by reason of a real or imputed association with Christianity but found that individuals in Nepal who were associated with Christianity were unlikely to suffer harm amounting to persecution.
Application for Review of the Tribunal's Decision
On 15 September 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant filed an amended application on 28 December 2006 setting out the following grounds.
1. The applicant seeks relief under s.39B of the Judiciary Act 1903 (Cth) on the grounds that the tribunal:
(a) exceeded jurisdiction in making the decision to affirm the respondent's decision not to grant the applicant a protection visa.
(b) erred in law in arriving at the decision to affirm the respondent's decision not to grant the applicant a protection visa.
(c) committed jurisdictional error in that, it misinterpreted and misapplied s. 36 (3) (4) (5) of the Migration Act 1958 concluding that the applicant does not have a well founded fear of persecution for convention reasons.
(d) ignored or misinterpreted relevant material in relation to the applicant's claims of persecution.
Particulars:
Decision of the Refugee Review Tribunal was invalid due to jurisdictional error because:
1. The applicant was denied procedural fairness and/or did not receive a fair hearing in that he was not able to give evidence and/or present arguments and/or was not given a real and meaningful opportunity to represent himself as the result of:
(a) misunderstandings and/or poor communication between the Tribunal and the applicant;
(b) the failure of the Tribunal to appreciate that the applicant did not understand questions at times;
(c) the failure of the tribunal and the applicant to utilise the interpreter who was present and/or failure of the Tribunal to suggest the interpreter should be utilised;
(d) refusal of the Tribunal to allow the interpreter, who was present but was not used, to intervene when he or she considered that the applicant had not understood the Tribunal member;
(e) the reliance of the Tribunal upon the expressively articulated assumptions that is questions had been asked very clearly, understood and answered equally clearly, when this was demonstrated not so and in the circumstances set out above;
(f) the failure of the Tribunal to afford the applicant a reasonable opportunity to answer questions, including interrupting him and or putting words in his mouth and or dictating the terms of a response;
(g) the Tribunal member adopting what appears to be a hostile manner;
(h) that the Tribunal member appeared to treat the applicant in this manner in circumstances where he had a documented psychiatric illness;
(i) the readiness of the Tribunal member to conclude the answers, which he recorded as inadequate, were inconsistent and/or reflected poorly on the credit of the applicant even when another explanation, such as simple confusion, appeared to be more likely.
(j) the failure of the Tribunal to take into account that the applicant suffered from severe depressive anxiety disorder;
(k) the impact of the applicant's evidence of his severe depressive anxiety disorder;
(l) inaccuracies in the Tribunal's account of evidence given by the applicant;
(m) the failure of the Tribunal to hear evidence from Mr Boyd on matters of most relevance to the applicant's credit, in light of its conclusions as to his credit and the other matters set out hereto;
(n) failure of the Tribunal to contact readily available witnesses.
2. There was apprehended bias and or the Tribunal member had a preconceived notion that the applicant had fabricated his account of events as evidenced by:
(a) the adverse interpretation of the applicant's answers of conduct, particularly where other explanations such as confusion, appeared to be more likely;
(b) the adverse interpretation put upon the applicant's legal representative's representation or argument in terms of the applicant's own credit;
(c) the refusal of the Tribunal to allow the interpreter, who was present but not used, to intervene when he or she considered that the applicant had not understood the Tribunal member this could give rise to a reasonable apprehension of unwillingness to be open to the possibility of language difficulties or confusion rather than just dishonesty;
(d) the reliance of the Tribunal upon explicitly articulated assumptions that its questions had been asked very clearly, understood and answered equally clearly, when this was demonstrated not so;
(e) the failure of the Tribunal to deal with the Amnesty letters;
(f) the Tribunal member adopted what appeared to be a hostile manner;
(g) the fact that the Tribunal member at times put words in the applicant's mouth and/or dictated the terms of a reply;
(h) the failure of the Tribunal to afford the applicant a reasonable opportunity to answer questions, including interpreting him;
(i) inaccuracies in the Tribunal's account of evidence given by the applicant that appeared to accord with the pre‑conception of the Tribunal member rather than what was said or could give rise to a reasonable apprehension of the same;
(j) the suggestion by the Tribunal that the applicant was trying to evade a line of inquiry when in fact witnesses on the issue have been put forward and were not contacted;
(k) the failure of the Tribunal to contact readily available witnesses in circumstances where it had concluded that the applicant was trying to evade the issue upon which they could give evidence.
3. The Tribunal erred in that it failed to contact witnesses when it had a duty to do so in order to obtain readily available information that was essentially relevant to the decision to be made. The relevant circumstances were;
(a) evidence was readily available and that all that was required was a phone call;
(b) the evidence was of central importance because:
(i) the Tribunal apparently had doubts about the authenticity or sincerity of the documents said to have been signed by these witnesses;
(ii) the Tribunal proposed to reject the applicant on the basis of credibility in circumstances where this evidence could be vitally important to his credibility;
(iii) the Tribunal had considered it to be significantly adverse to the applicant's claims that these witnesses were continuing in the same or similar role that the applicant said had caused him to be persecuted;
(iv) the Tribunal had no evidence as to whether these witnesses were suffering persecution or other adverse consequences as a result of the current rules;
(v) the witnesses were not suffering persecution or other adverse consequences, the Tribunal had no evidence as to the surrounding circumstances, why that was so or any relevant differences between their situation and that of the applicant at a time when he said he was suffering persecution.
(c) the Tribunal itself considered the evidence to be relevant
Submissions and Reasons
Both parties were represented at the hearing by counsel and instructing solicitors. Both counsel filed detailed written submissions addressing the three grounds of appeal. The written submissions were supported by detailed oral submissions.
Ms Sant acknowledges that there is overlap between the particulars of the first and second grounds. The applicant says that the Tribunal hearing and decision-making process were inadequate in that he was not accorded procedural fairness or given a real and meaningful opportunity to represent himself. Ms Sant submits that a fair-minded and informed lay person who was made aware of all of the particulars set out in the second ground would reasonably apprehend that the Tribunal member did not bring an impartial mind to the issue, or had a preconceived notion that the applicant was not telling the truth.
In respect of the first ground, the applicant’s written and oral submissions set out in some considerable detail in the twelve particulars the issues in support of the claim that the Tribunal member failed to accord the applicant procedural fairness. Ms Sant contends that the requirements of fairness cannot be met if a non‑English speaking person does not understand the questions asked and does not have a fair opportunity to respond appropriately. She cites the following authorities that deal with incompetent and inadequate translation: Perera v the Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 118; SYSB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1259; VWFY v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 1723. Ms Sant submits that these cases recognise that non‑responsive or wrong answers may reflect attempted evasion or ignorance, but could also be attributed to misunderstanding or mistranslation.
Ms Sant further submits that the principle is not confined to incompetent interpretation. In SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 359, Edmonds J allowed for the possibility that there may be other problems at hearing preventing an applicant from advancing his or her case and responding to the Tribunal's questions effectively. It is submitted that this sort of error is capable to amounting to jurisdictional error if it affects the findings of the Tribunal in relation to jurisdictional fact. In Perera at [17], Kenny J went so far as to say that an applicant who was not proficient in English was unable to exercise his right to give evidence in the absence of an interpreter and therefore the Tribunal had no jurisdiction to continue unless it provided an interpreter. In STPB at [25], Finn J held that what was communicated between the Tribunal and the applicant was rendered unreliable and there was consequently a denial of procedural fairness giving rise to jurisdictional error. Ms Sant argues that the particulars identified under this ground give numerous examples of confusion and misunderstanding. The Tribunal did not appreciate that the applicant did not understand questions even when this was obvious. Instead, it proceeded on the wrong assumption that its questions had been understood and clearly answered and, like the Tribunal the subject of Perera, concluded that the answer reflected poorly on the applicant.
Ms Sant argues that the hearing as conducted did not provide the applicant with a reasonable or real and meaningful opportunity to present his case and the Tribunal failed to take advantage of this opportunity to see and hear him. It did not use the interpreter, but instead prevented him from assisting. The Tribunal failed to conduct the hearing in a sensitive, competent and fair way. Misunderstanding and confusion characterised the hearing, and the applicant was denied a real opportunity to present his case. Ms Sant submits that the communication was unreliable as was the case in STPB. This could not have assisted the Tribunal in assessing his credit; therefore that assessment was also unreliable. The problem was compounded by the Tribunal's failure to seek readily available evidence that was highly probative of the issue which it determined adversely to the applicant, particularly when he told the truth about past harm and his active involvement in the Nepali Congress Party and its youth affiliate.
Ms Sant concedes that it may be that no error or deficiency was so severe as to deprive the applicant of his right to present his case. If so, this case is similar to VWFY v Minister for Immigration & Multicultural & Indigenous Affairs at [27] where Finkelstein J said that not any one deficiency was sufficient:
If one steps back and looks at the hearing as a whole and asks whether the appellant receives a fair hearing, I think the answer is that he did not.
Ultimately, the applicant in that case had no real opportunity to express himself and "fully answer questions" put to him by the Tribunal.
Ms Sirtes submits that particulars (a) to (i) of the first ground do nothing more than level accusations at the Tribunal member. Presumably, the particulars seek to allege that the Tribunal did not comply with s.425 of the Migration Act by not providing the applicant with an opportunity to give evidence and present arguments. Ms Sirtes argues that nothing in the Tribunal decision or the transcript supports this ground.
Ms Sirtes contends that particular (i) of the first ground also takes issue with the merits of the Tribunal's decision. However, merits review of the Tribunal's fact findings is impermissible, provided that those findings are open on the material before the Tribunal: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v the Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ; MAAP v the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ. The complaint in particular (j) is that the Tribunal failed to consider the information regarding the applicant's anxiety and depression. However, the report in question does not suggest that the applicant's mental condition is likely to result in persecution in Nepal.(CB 313) Similarly, it does not explicitly state that the applicant was not able to participate fully at the Tribunal hearing. The Tribunal decision notes that it received the report, although it did not make any finding in relation to the applicant's mental condition:
The 3 April 2006 submission provides evidence of the applicant having been treated in 2005 and 2006 for anxiety, depression, back pain, eyesight disorder and headaches. The applicant claimed he went along with a friend to a gathering at the Jesus Family Centre at a time when he was feeling anxious about his protection visa application and the appeal against the previously constituted Tribunal decision in the matter.(CB 743)
Ms Sirtes submits that the Tribunal is not required to refer to every piece of evidence in its reasons: WAEE v Minister for Immigration Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]. The evidence in question was unverified and relied primarily on factual background material which the applicant provided to the author. It did not go to any factual or procedural matter the Tribunal was required to address in either the conduct of the hearing or its assessment of the applicant's refugee status. Accordingly, particular (k) is also not made out. There was also no psychological assessment showing that there the applicant's mental condition impacted on either his refugee claims or his abilities at hearing.
Ms Sirtes submits that particular (l) of the first ground complains of inaccuracies in the Tribunal’s recounting of its hearing. In the absence of particulars about what aspects of the hearing were inaccurately reported, and what effect that had on the Tribunal decision, the first respondent is unable to respond meaningfully to this ground. Mr Sirtes submits that the Tribunal was entitled to summarise the evidence for the purpose of its decision. Other than an obvious and explicit inaccuracy which resulted in a factual finding not open to the Tribunal, the Tribunal's summary in and of itself cannot give rise to jurisdictional error. In respect of particular (m) and (n), Ms Sirtes contends that the onus was on the applicant to call witnesses and make out his case. This issue is more fully addressed at [40]-[46] below.
The hearing tapes (second affidavit of Ms Jankulovska) and the typed transcript (first affidavit of Ms Jankulovska) have both been admitted into evidence in this matter. After I reserved my decision, I had the opportunity to listen to the tapes and compare them with the transcript. Despite the poor quality of both sets of evidence, it is apparent that some of the issues raised in the particulars are not supported by the typed transcript. Particulars (c) and (d) in relation to the interpreter issue are clearly wrong. Although the transcript records one intervention by the member, the interpreter can be heard in the background explaining the question. There were several instances when the Tribunal member spoke at the same time as the interpreter, who was rephrasing as it was obvious that the applicant did not understand the original questions.
Ms Sirtes submits that particulars (a) and (b) reflect the manner in which the hearing was conducted. When there was a problem with the applicant understanding the nature of a question, the member permitted the interpreter to assist and, in many circumstances, rephrased questions. Particular (e) is in direct conflict with what actually occurred. Similarly, particular (f) is not supported by the contents of the hearing tape. The only interruption which occurred was when the applicant gave answers which moved away from a question asked and elaborated outside of the scope of the question. Particular (g) is not supported by the hearing tape, nor is there any evidence that the applicant was under any stress as suggested by particular (h). I believe this applies equally to particular (j).
In relation to particular (i), the Tribunal did question the applicant who did not directly respond to the questions asked. After approaching topics from different angles, the Tribunal either put them aside for later discussion or asked that they be addressed in post‑hearing submissions. Particular (m) states that the oral evidence given by Mr Boyd was brief. However, when Mr Boyd sought to make further statements, the Tribunal member invited him to make post‑hearing submissions on the issues. Particular (n) was addressed in Ms Sirtes’ submissions and I accept those submissions: at [20] above.
The applicant's adviser was present throughout the Tribunal hearing and took notes in respect of all of the issues discussed. At the end of the hearing, the Tribunal invited the adviser and Mr Boyd to prepare written submissions on any aspect which they believed may need to be addressed. They were given 21 days to make those submissions. This was in addition to two s.424A letters sent to the applicant touching on all issues that arose due to the Tribunal referring to documents in the Tribunal and Department files which had not been previously provided to the applicant.
Having listened to the Tribunal tapes and comparing the contents with the written transcript and considering the content of the Tribunal hearing in light of the particulars pleaded in support of the ground one of the amended application, I am satisfied that none of the claims made can be sustained. At the completion of that exercise, I am satisfied that the claim that the applicant has been denied procedural fairness in respect of the conduct of the Tribunal hearing cannot be sustained and must be rejected.
In respect of the second ground, Ms Sant contends that there was a reasonable apprehension of bias such that the Tribunal member was not or may not have brought an impartial mind to the matter, or had a preconceived notion that the applicant had fabricated his account of events. She submits that there is a reasonable apprehension of bias if a fair‑minded and informed observer reasonably apprehends that the decision-maker may not bring an impartial mind to the resolution of the question he or she is required to decide: NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 358 at [14] per Allsop J (with whom Moore and Tamberlin JJ agreed). Ms Sant also submits that it is necessary to demonstrate that the circumstances would give rise to such an apprehension, but that the apprehension goes to the possibility, which is real and not remote, that there is a lack of impartiality: NADH at [17].
Ms Sant submits that the issue in this case is not whether there was actual bias and her submissions addressed only ostensible bias.She submits that in considering ostensible bias, the actual thought processes of the decision-maker are not the subject of the inquiry. The inquiry is "directed to the decision maker's conduct 'objectified' through the prism of what a fair‑minded and informed observer would reasonably apprehend": NADH at [21] per Allsop J (citing Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507).
Ms Sant prepared detailed written submissions supported by oral presentation in respect of each of the particulars pleaded in the second ground, including transcript references. She did not refer to the hearing tapes which, in many circumstances, qualified the extracts selected.I will address that in greater detail below.
Ms Sirtes submits that the Court must be measured in its consideration of bias and an allegation of bias must be distinctly made and clearly proved: Jia at [69].
Ms Sirtes submits that the test for apprehension of bias in a Tribunal member was set out in Re: Refugee Review Tribunal; ex parte H (2001) 17 9 ALR 425 at [27]-[31].That case was cited most recently in Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14] per Branson, Finn and Bennett JJ. The test is whether a hypothetical fair‑minded lay observer, properly informed about the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member did not bring an impartial mind to the question to be decided. Ms Sirtes submits that this creates an extremely high standard which was not met in this matter. Her written submissions address a number of the issues raised in the applicant’s particulars with reference to appropriate authorities.
Again, after listening to the hearing tapes and reading the transcript, I do not believe that a claim of apprehended bias on the part of the Tribunal member can be maintained. My comments above at [23] to [25] apply equally to this ground. However, some of the particulars raised require further comment. Particular (c) of the second ground is unsustainable after listening to the tapes. There were numerous times when the Tribunal member asked a question. Clearly, the applicant did not understand either the terminology used or the context in which the question was asked. The interpreter can be clearly heard interpreting the questions to the applicant. The Tribunal allowed this to occur without interruption. As I have indicated above, the only times the member seemed to talk over the interpreter was when it was apparent that a question was not understood. The member then attempted to rephrase the question.
Similarly, the conduct of the hearing directly contradicts the claim in particular (d) of the second ground. In respect of particular (e), the Tribunal and the adviser discussed the letter sent by Amnesty International on the morning of the hearing. After both parties had read the letter, it was mentioned again towards the end of the hearing. The member commented that the contents of the letter would be of interest to other Tribunal members as it addressed current relevant issues. Particular (f) should be considered in the light of Ms Sirtes’ submissions cited above at [17].
Particulars (g) and (h) of the second ground are not supported by the contents of the hearing tapes. There were long periods when the member allowed the applicant to consider a question and provide an answer. Particular (j) cannot be sustained as in many cases the member indicated that the applicant’s answers were not in response to the questions asked. I agree with the submissions of Ms Sirtes that the vigorous exchanges between the applicant and the Tribunal can be expected in inquisitorial proceedings: Ex parte H at [5]. It fell to the Tribunal member to test the applicant's evidence and discuss with him the implausibilities and lack of evidence in his case. Finally, particular (k) of the second ground is repeated in the third ground and I will deal with that particular accordingly.
The third ground alleges that the Tribunal erred in failing to contact witnesses. Ms Sant acknowledges that there is no general duty to inquire and accepts that s.424 is permissive, being primarily an enabling provision which empowers the Tribunal to obtain information it considers relevant. Nonetheless, in some circumstances there may be a duty to obtain material when it is obvious the material is readily available and essentially relevant to the decision to be made: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 per Wilcox J. Justice Wilcox’s comments were cited with approval by the Full Federal Court in Luu v Renevier (1989) 91 ALR 39. In VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [26], Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ observed that:
The Tribunal was not an independent arbiter charged with deciding an issue joined between adversaries… The Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made.
Ms Sant submits that a failure to make inquiries has been said to be, in limited circumstances, either an exercise of power in a reasonable manner or a breach of procedural fairness: SZATG v Minister for Immigration Multicultural & Indigenous Affairs (2004) 215 ALR 358 at [27]; SZDFF v Minister for Immigration Multicultural & Indigenous Affairs [2005] FMCA 56. It is submitted that the question for this Court is whether the circumstances of this case give rise to a duty to inquire such that a failure to do so is either:
a)so unreasonable that no reasonable person would have failed to make the inquiry; or
b)a breach of the procedural fairness requirement.
Ms Sant submits that s.422B(1) of the Migration Act is an exhaustive statement of natural justice requirements with respect to the matters it deals with. It does not exclude all other procedural fairness requirements. Nonetheless, the applicant accepts that a duty to accord procedural fairness is not something dealt with by s.424 and the duty under common law is not ousted by s.422B(1). Ms Sant submits that the Tribunal failed to contact each of the witnesses and then decided based on a lack of reliability of the applicant's account of past harm at the hands of Maoists, and that what the witnesses asserted was not true.No reasonable decision-maker would have proceeded without contacting any of the witnesses. Therefore, there is probably no need to consider whether procedural fairness gave rise to any duty to inquire in these circumstances.
It is submitted that the following circumstances, taken together, made it manifestly unreasonable for the Tribunal to not to make the phone calls:
a)The witnesses were readily available and telephone numbers were provided. The applicant had asked to Tribunal to call them. It was a simple matter to find out from the witnesses whether the letters were authentic: compare with SZEOP v Minister for Immigration [2005] FMCA 443 at [29] to [31].
b)The evidence was central and supported by thirteen separate arguments.
c)The Tribunal itself considered the evidence to be relevant. It clearly considered that the political activities, and any adverse experiences they may have had as a result, of the authors of the letters were relevant to its determination. It rejected a submission from the applicant's adviser that it did not directly bear on the relevant issue.
Ms Sant submits that the Tribunal decision confirms how essential the witnesses turned out to be. Much of the reasoning expressed concern about the claims and found that the applicant’s evidence of past harm was unreliable. The Tribunal was concerned about the authenticity, reliability and extent of relevant details contained in the documents written by these witnesses. It ultimately made no finding that the letters were written by the applicant or by any other single author. It is unclear whether it continued to harbour doubts in this respect and, if so, how that affected its approach to the applicant's credibility: VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72.
It is submitted that the Tribunal went on to decide not to give any weight to any of the letters from Nepal. Ms Sant argues that this rejection can only be based upon its conclusion about the reliability of the applicant and the authenticity of the other documents. She submits that the most important reason why the Tribunal should have contacted the witnesses was that the Tribunal's own approach was insufficient. The Tribunal was suspicious of the letters in part because the applicant had advised the authors of some of the letters why he sought them.(CB 760) The Tribunal rejected letters from the Nepali Congress, Tarun Dal and the Forum of Human Rights because it formed the view that the applicant had asked the authors to help him "and told them what to say".(CB 760) There is inherent unfairness in the Tribunal rejecting evidence only because it was obtained by the applicant, and then refusing to obtain easily available evidence itself. Ms Sant argues that the determination of the Tribunal was affected by jurisdictional error.
Ms Sirtes referred the Court to the applicant's response to the hearing invitation form and the applicant's answers to the questions:
Q: “Do you want the Tribunal to take oral evidence from any witnesses?”
A: “No.” (CB 281)
Ms Sirtes submits that the Tribunal did not have a positive duty to investigate claims: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003, [2005] FCAFC 73 at [20]. Justices Gummow and Hayne made clear in SGLB that whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant's claims, nor is it under a duty to consider utilising permissive statutory powers which might enable it to (for example s.427(1)(d) of the Migration Act): VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs 2004 FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21], [24]‑[25]; W389/01A v Minister for Immigration & Multicultural Affairs (2002) FCR 407 at [74]-[78].
Ms Sirtes submits that in Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908, Bennett J considered whether there was jurisdictional error in a Tribunal declining to call witnesses under s.363 of the Migration Act, which equates to s.427 for these purposes. Her Honour found that there was no error. However, this case is a fortiori in circumstances because Katisat involved a request for a witness to the called. In the present case there was no such request. Accordingly, the general principles regarding the duty of the Tribunal to investigate apply.
I believe this ground also needs to be considered in light of the conversation between the Tribunal member and the adviser at the end of the hearing. I reproduce that discussion from the transcript which has been edited. However, I am satisfied that the essential elements of the discussion which took place are reflected in the extract. I have formed this view after listening to this section of the hearing tape:
TM: In the course of our discussion your advisor and Mr Boyd have been making notes. The questions I have been putting to you are certainly not based on hardening, calcifying position that I'm feeling half inclined to adopt; they're just questions that I've been putting to you to hear what you yourself have to say about these things. But there are also things that you can address again through your advisor, and there's certain things that Mr Boyd should be welcome to address as a witness, and as I think, an expert witness as far as his church and its outreach is concerned.
MR BOYD: Would you like me to talk now?
TM: I'd rather you gather your thoughts and write, okay, and put them through the applicant.
MR BOYD: Okay.
TM: I mean, the Act requires ‑ the Court's interpretation of the Act requires me to put some things to you in writing at the conclusion of this hearing. We have referred back to your application form a couple of times, the DIMIA application form, so I'll be writing to you in the next few days, and there will be a statutory time period to respond to the letter.
MR BOYD: How much time ‑ do you want me to give...
TM: It will be something in the region of 21 to 28 days, I should think. Is that right?
ADVISOR: Is the Member indicating that we could make any post hearing submissions in conjunction with addressing any concerns or issues the Tribunal raises...
TM: Yes, that's right or even if...
ADVISOR :...in the 424A notice?
TM: ...you make completely independent post‑hearing submissions; stuff that matters, that you may have noted in the course of the hearing arising from our exchange, that have nothing to do with any of the specific issues that will come up in the 424 A letter, as we call it.
Of course, you can make submissions right up until the handing‑down date so even if you get a notification ‑ and I am not begging you to do this. I am not begging you to do it, but you are entitled to know that you have absolutely every right to do it. Even if you make submissions after I have notified you of the handing down decision, I'll take a deep breath and I'll just sit down and look at them. Don't you worry about a thing, I'll be a very good Member. So you're allowed to make submissions of any kind right up to the handing down minute.
ADVISOR: Could I clarify a couple of things with the Tribunal?
TM: Okay, sure.
ADVISOR: First of all, I would like to be clear from the Tribunal's comments today that the issue of s.36 (3) and possible removal to reside in India is not an issue that concerns the Tribunal. Unlike the first Tribunal which heard [SGGQI] case, that will be not an issue on which you will find against him?
The member and adviser then discussed the Amnesty International letter and its bearing on the hearing. They then returned to a discussion on post-hearing submissions:
ADVISOR: Well, if there's a 424A notice coming as well clearly...
TM: You might like to see ‑ you might like to get a feel of what's in the 424 A letter.
ADVISOR: This is what I'm thinking and in terms of post‑hearing submissions, if we have the same period of time as we have to prepare the 424 A letter then we will take that...
TM: I won't impose an earlier deadline.
ADVISOR: In that case I won't make any oral submissions based on what's come out today, I'll put all that in writing to the Tribunal for your consideration.
TM: In that case I'm inclined to close this part of the proceedings fairly shortly. So you can take away the tapes, the hearing tapes; take away your notes and prepare the responses to what's been said and heard today or what's been asked. And take account of the 424 A letter when it comes. . I may not start writing until earlier next week. I really shouldn't, but the way the time lines are I probably should start it during lunch. That's fine. It doesn't bother me, natural justice and everything ‑ one of those boxes you can tick in your finalisation form for good reason why we go over a 90 day period.
The applicant had his adviser present throughout the Tribunal hearing and Mr Boyd, pastor of the applicant's congregation, was present for part of the hearing. Mr Boyd provided brief evidence and an invitation was clearly open to him to also make post‑hearing submissions on any issue that he wished to raise. The transcript and hearing tapes clearly demonstrate that the Tribunal was particularly interested in the applicant's new claim of Christianity, because of his conversion during his stay in Australia and its impact should he return to Nepal. The adviser was well aware of the contents and nature of the various correspondence documents the applicant provided to the Tribunal. The applicant had an open invitation to raise both at the hearing and in post‑hearing submissions the issue of witnesses who should have been contacted.
I accept the submission made by Ms Sirtes that the Tribunal is under no positive duty to investigate claims and it is for the applicant to make out his case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. The applicant was assisted by a registered migration agent. That person has an obligation to assist the applicant, and prepare and present his case before the Tribunal. The agent should be alert to issues critical to the applicant's case. The agent attended the Tribunal hearing, took notes and was provided with copies of the hearing tapes to consider and review. He was also invited to prepare post‑hearing submissions addressing any issue he believed relevant to his client's case. He had the opportunity to discuss issues with the Tribunal member and, furthermore, had an open invitation to contact the member for any clarification. In the circumstances, I am satisfied that this ground of review cannot be sustained and must be dismissed.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 24 August 2007
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