SZHCI v Minister for Immigration
[2006] FMCA 1016
•26 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHCI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1016 |
| MIGRATION – RRT decision – Indian claiming persecution as Congress party worker – Tribunal disbelieved claims by testing knowledge of party history – conduct of hearing – reasonable apprehension of bias – matter remitted. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 425, 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
| Applicant: | SZHCI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2544 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 5 April 2006 |
| Date of Last Submission: | 7 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jayawardena |
| Solicitors for the Applicant: | Chandra Jayawardena Solicitor |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 16 August 2005 in matter N05/51206.
Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 12 April 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2544 of 2005
| SZHCI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application filed on 12 September 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 July 2005 and handed down on 16 August 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant has been assisted in his visa application, his review application to the Tribunal, and in this Court, by his migration agent and solicitor, Mr Jayawardena. The present application was presented with extensive and diffuse grounds of review and submissions. At the conclusion of the hearing on 5 April 2006, I allowed the applicant a further opportunity to present a transcript of the hearing held by the Tribunal, and to attempt a further formulation of his grounds for review. The respondent was also given an opportunity to make further written submissions. The parties were given liberty to apply for the hearing to be resumed for further oral argument, but neither of them requested this.
I have decided that it is unnecessary for me to attempt to explore most of Mr Jayawardena’s contentions, since I have concluded that the Tribunal’s decision should be quashed due to features of its hearing and reasons which, in my opinion, might cause a fair‑minded lay observer to reasonably apprehend that the member constituting the Tribunal might not have brought an impartial mind to deciding whether the applicant’s refugee claims satisfied the Convention definition of “refugee” as adopted by s.36 of the Migration Act.
This test of apprehended bias was confirmed and discussed by the High Court in the context of a similar decision by the same Tribunal, in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 (“Ex Parte H”) at [27]‑[32]. It is useful for me to quote the whole of that discussion (citations omitted):
[27]The test for apprehended bias in relation to curial proceedings is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair‑minded lay observer” when, as is the case with the tribunal, proceedings are held in private.
[28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair‑minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29]Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non‑curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30]Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31]Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair‑minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision‑maker’s view.
[32]In the present case, a fair‑minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor’s application stood or fell with his, a fair‑minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
Ex parte H was applied by Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102. After a detailed examination of the transcript of the Tribunal’s hearing in that case, her Honour concluded:
[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 and Multicultural and Indigenous Affairs [2003] FCAFC 141: 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) to (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.
The application of Ex parte H, and the relationship between judicial review on grounds of apprehended bias and irrationality in reasoning, was extensively discussed by Allsop J, with whose reasons Moore and Tamberlin JJ agreed, in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264. In that case, the Tribunal refused to believe an applicant’s claims to fear persecution as a Roman Catholic in China, based on its opinions of his knowledge of that Church’s doctrine and practices. Allsop J thought that its adverse assessment of his responses was “startling and difficult to accept as a rational or at least reasoned response to the totality of the questioning and of the material before the Tribunal” (at [111]). He said:
[115]By and large fact‑finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59. Where fact‑finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair‑minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair‑minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.
As I shall explain below, in the present case, I consider that the transcript shows that the present Tribunal’s conduct of its hearing might appear to have intimidated the applicant and his advisor into thinking that there was nothing they could say to advance his claims. In particular, the Tribunal’s confronting of the applicant with a test of his historical knowledge of the origins of the Indian Congress Party, and its emphatic announcements that the applicant had failed that test, might appear to have had this effect. There was also an underlying element of unreasonableness in the emphasis given by the Tribunal to the usefulness of its test. It choice and conduct of its test might suggest to an observer that the Tribunal might have closed its mind after finding a predetermined reason for rejecting the applicant’s claims, and that for this reason it did not afford to the applicant the hearing which was required under the Migration Act. As I shall explain, I consider that an observer’s apprehensions would have been confirmed by the reasons ultimately given by the Tribunal for affirming the refusal of the visa.
The applicant’s claims supporting his visa application were contained in a typed statement. He said that he was an Indian National, born in 1972, who had lived in Bangalore in Southern India. He had attended high school, and then been employed as a sales assistant. He was the manager of a supermarket before coming to Australia in September 2004. He claimed to fear persecution by violent supporters of the BJP Hindu fundamentalist party, based on past acts of violence against him and other Congress party workers in his locality. The applicant said:
After I left school I got involved in political activities and I became an ardent Member of India’s oldest political party name Indian Congress Party. As a loyal and hardworking member of the Congress Party I was working untiringly towards helping the poor and down trodden masses in the Southern India. I was actively taking part in the programmes set up by the Congress party for eliminating poverty in the area. Due to my commitment and hard work I became a target for insults and harassments in the hands of the BJP mainly and other political parties.
I used to get threatening calls frequently to my residence and warning me with dire consequences if I did not quit politics. A few of my relatives and friends and well wishers were also targets of fury and evil design. Hence elder relatives and well wishers advised me to either leave Bangalore or go away from India to protect my life. Somewhere in 1994 the situation became bad and there were lots of violent activities taking place. I am attaching hereto and marked Annexure “A” & “B” copies of the newspaper articles appeared in the Deccan Herald for perusal.
The major threat to my life came across when I was campaigning for our Congress Party candidates [name] from [local] assembly constituency in 1994. I was attacked by some BJP party members in [area] and I was nearly dead as they hit me with iron rods and other lethal weapons I got admitted to the hospital with a head injury and a crack on my pelvis. I was in Hospital for About fifteen days than got discharged, with the pelvis injury I was on bed for four months during that time the complaint was lodged in [area] Police station against the BJP supporters. I don’t have any complaint report with me because as it was suppressed from the police records because the BJP came to power in my area after the 1994 elections.
After this injury I continued to work for the Congress Party and I still received threatening telephone calls and harassment right throughout. Sometimes they used to throw stones into my house in the night and any complaints I made to Police were never investigated. Additionally my being a Muslim, the BJP fundamentalist members hated me and therefore I was a strong target in their hands. Anyway I did not give up my party politics and continued to work for Congress even during the April 2004 General Elections.
The applicant referred to media reports of recent incidents where other Congress party workers who were his friends were attacked and killed, allegedly at “the hand of BJP leaders and workers”.
He also presented a letter signed by the President of the local Congress Committee “Minority Department”, dated 16 May 1996 which offered him an appointment as “the General Secretary for [local area] Congress Committee, Minority Cell with immediate effect”.
The applicant did not present further documentary material to the Tribunal, but on 25 July 2005 he attended a hearing with his agent. The hearing commenced at 10.10 am, and concluded at 11.16 am. The applicant spoke in English throughout, and disclaimed a need for an interpreter. A 25‑page transcript is in evidence, and needs to be considered in full. I shall extract significant parts of it to explain the points of concern.
It is apparent from the transcript, the Tribunal’s ultimate reasons, and the Court book of relevant documents, that the Tribunal member brought to the hearing a two‑page history of the “Indian National Congress (also known as the Congress Party)”, downloaded from an internet encyclopaedia. This contained an extremely cursory account of the origins of the Indian National Congress under the British Raj, its involvement in the national independence movement, and its subsequent history in the government of India at the national level as a political party participating in democratic elections. It contained no information as to the history of the National Congress nor the Congress Party in the applicant’s state or region. No research appears to have been performed before or after the hearing to discover the extent to which a young party worker in Bangalore could be expected to be familiar with this history. Nor did the Tribunal research the local elections or political activities which the applicant claimed to have participated in.
The first five pages of the transcript show preliminary procedures. Over the next ten pages, the Tribunal questioned the applicant about his joining the Congress Party, and about a violent attack on him and his shop in 1994 by BJP workers, which led to a hospital admission for 15 days. He gave a detailed account of these events, without any apparent difficulty or significant inconsistencies. The activities he described performing as a “youth member Congress Party”, were those of arranging meetings, canvassing during elections, assisting in street demonstrations, and support for the local candidate. He made no claims suggesting that he ever studied or was expected to have any level of knowledge of the origins and history of the national party whose local organisation he supported.
The applicant told the Tribunal that, as a result of his 1994 experiences, he decided that working closely with the local candidate could be “dangerous”, and that he reduced the level of his involvement in party activities. However, he attended meetings “twice in a month”, and “during the elections I myself involved more at least three to four months prior to the election and do organise things, organise party meetings and all”. He also confirmed that he “still received threatening telephone calls and harassment”.
At this point, it is significant that the Tribunal chose not to question the applicant about these significant claims, which the applicant implied had continued over many years leading to his departure from India in 2004. It did not seek to clarify these claims nor to test his credibility by discovering and exploring the details of his immediate history. Rather, it decided to continue its questioning of the applicant, by administering its prepared history test. This occupies five pages of transcript, and I shall set it out in full:
Tribunal:Okay. So being a participant in an election in 1994 and supporting the local candidate would mean to me that you had a good understanding of the party and its policies, is that right?
Applicant:Yes.
Tribunal:So I am going to ask you some questions about it because it is a fundamental aspect of your claim, okay. When was the party founded, do you know and by the party I am talking about the Indian Congress Party, which you say you were a member of?
Applicant:Indian Congress Party when it was founded?
Tribunal:Yes, when was the party founded, a very basic question?
Applicant:It is more than 100 years.
Tribunal: When exactly?
Applicant:Congress Party started when Jav …he started the Congress Party.
Tribunal:When was the party founded?
Applicant:No idea.
Tribunal:No idea?
Applicant:No, I can’t remember that.
Tribunal:I put to you that independent country information indicates to me that the party was founded in 1885. Now I am looking at an article which I accessed this morning from the internet. The title of the article is “Encyclopaedia Congress Party”. The website is nationmaster.com, which I accessed this morning, as I said. This article, as I said to you, indicates that the party was founded in 1985, sorry 1885. I beg your pardon 1885.
Applicant:More than 100 years.
Tribunal:Now do you know what the object of the party was? Why was this party founded? You know it had objectives, it had aims, do you know what they were?
Applicant:I don’t know their objectives.
Tribunal:Why not?
Applicant:I was not deeply you know like I don’t know about the history, what happened. I was just involved with this politician.
Tribunal:Yes but how can you say you were canvassing votes, you were helping this candidate, when you did not know what the objectives of the party were? It doesn’t make sense to me, I’m sorry?
Applicant:See I did the things what they asked me to do. I was getting paid as well. That’s the main thing.
Tribunal:Now the article that I have referred to earlier indicates to me that the party was founded in 1885 with the object of obtaining a greater share in government for educated Indians and that the party initially was not opposed to British ruling. These are basic things?
Applicant:Fundamentals, yes.
Tribunal:That you don’t know. Do you agree with me, you don’t know?
Applicant:Yes, I do agree with you, I don’t know.
Tribunal:All right. So we are not – okay. Do you know who brought the party to India really – no, I should rephrase that – who brought its first meeting in Bombay?
Applicant:Mahatma Ghandi.
Tribunal:Who?
Applicant:Mahatma Ghandi.
Tribunal:No, it was in fact a Scotsman called Allan Octubbian Hume. Could you spell the name of the person who you think it was, sorry?
Applicant:Arvi Diraj, which one?
Tribunal:No, no. I asked you if you knew who - - -
Applicant:Mahatma Ghandi I said.
Tribunal:Who?
Applicant:I said Mahatma Ghandi, M-A-H-A-T-M-A.
Tribunal:I can spell Ghandi quite well thank you. That is a very famous name. All right. I put to you that that was incorrect and in fact it was Allan Octubbian Hume who had brought about its first meeting in Bombay and Allan was a Scotsman. In fact he was not an Indian. Do you know, I need to ask you this because what I am doing is testing your knowledge obviously about the party. Do you know how many cams there were during this period of the party, cams or factions or whatever?
Applicant:In 1994?
Tribunal:Where are talking about 1885.
Applicant:I don’t know anything about 1885, ma’am.
Tribunal:I put to you that the independent country information indicates to me that during this period there were two camps in the Congress, the Gara Dahl or extremists, they were the extreme faction of the party; and the Nara Dahl or moderates. The party had a very extreme division and a moderate division and that was early on in 1885. Okay. Basically what distinguished the two factions were the attitude towards the British basically. No idea. You need to speak up loud so your voice can be recorded?
Applicant:No idea. I don’t know anything about the party.
Tribunal:No idea. Do you know who headed the party after the WWI?
Applicant:J …
Tribunal:Who?
Applicant:Jawal Lal Nehru, he became the first Prime Minister.
Tribunal:No, I am talking who was the head of the Congress Party after WWI?
Applicant:I don’t know.
Tribunal:You should know that. If you were a member of the party you should know that. You don’t know that?
Applicant:No.
Tribunal:It was Mahatma Ghandi. That is a very famous person.
Applicant:I know he is a very famous person.
Tribunal:Very famous person. And a very important figure in the Indian politics, very important figure and you don’t know him.
Applicant:1885 you are talking about, then World War.
Tribunal:No, this is important history about a party that you say you were an active member of. I am not fabricating anything. You are the one who has claimed that you were an ardent active member of this party and I am testing how much you know about it and I am entitled to do that.
Applicant:Yes, I do.
Tribunal:Can you spell the name of the person whom you say headed the party after WWI?
Applicant:Mahatma Ghandi.
Tribunal:No, that is what I said to you.
Applicant:I said Jawal Lal Nehru, J-A-W-A-H-E-R L-A-L N-E-H-R-U.
Tribunal:Do you know – you probably don’t know this – do you know how long Mahatma Ghandi was the unofficial leader of the party?
Applicant:14 years.
Tribunal:Do you know how long the party ruled in India until when? It ruled for a significant period of time uninterrupted? It ruled India for many, many, many years but there was a stage when they stopped ruling India?
Applicant:I don’t know.
Tribunal:Okay. Independent country information tells me that the party ruled uninterrupted until 1977 and has since remained as a major political force in India. Do you know when Indira Ghandi was challenged for leadership?
Applicant:Indira Ghandi?
Tribunal:Indira Ghandi, yes.
Applicant:It was in 1972.
Tribunal:No, no. The article says “The first serious challenge to Congress harmony came in 1967 when a united opposition under the banner of Sun … Dal won control over several states in the Hindi belt. Indira Ghandi, the daughter of Nehru and Congress President was then challenged by the majority.” So we are talking about late 1960s. That led to conflict, that leadership challenge led to the conflict. Do you know what happened in regards to the conflict? No idea?
Applicant:No, I don’t know.
Tribunal:The articles indicates to me that the conflict led to a split and Indira launched a separate INC. Initially this party was known as Congress but it soon came to be generally known as the New Congress. The official party became known as the Indian National Congress (Organisation led by Kumaraj). These are important historical events of the party that you say you don’t know anything about. When did Indira Ghandi proclaim a state of emergency?
Applicant:1985.
Tribunal:You sure? Mr Adviser, please don’t shake your head, please.
Applicant:No.
Tribunal:Okay. Independent country information indicates that Indira grew more and more authoritarian, facing growing opposition she proclaimed a state of emergency in 1975. You said it was what?
Applicant:’85 I said.
As can be seen above, the course of the Tribunal’s questioning was accompanied with expressed and implied comments by the member, belittling the applicant’s responses which admitted a lack of knowledge, even in relation to facts which the Tribunal had no apparent justification for expecting him to have knowledge.
The Tribunal member then concluded her history test, by announcing that she had concluded that he knew “absolutely nothing about the party”. She then pressed the applicant to accept that she was likely to reject all his claims as a consequence:
Tribunal:Well, okay. I don’t think I need to go on any more because I think on your own evidence you don’t know much about the party. Is that right?
Applicant:I don’t know about the history.
Tribunal:Okay. As you would appreciate, you have claimed that you were an ardent member of the party, that you were an active member of the party. You have given evidence that you were actively involved in supporting your local member. To me that is somebody who has an understanding of the party, of the politics, of the history. With respect, you know absolutely nothing about the party.
Applicant:I supported my local party. Just in my area, surrounding areas. That is all I was doing, what they asked me to do it.
Tribunal:Sorry, you supported your local member?
Applicant:Local members, what they asked me to do, I was doing it.
Tribunal:I need to think very carefully about how convincing I find your explanation because I think your lack of knowledge about the party is so fundamental that I need to think about whether you actually were a member of the party or whether you had anything to do with the party and I need to put that to you and you need to understand that. Now what you also need to understand is membership of the party is really the most fundamental claim that you make. If I don’t accept that claim then I would not accept anything else because your claims are inherently dependent on that claim because you have claimed harm on the basis of your activities in the party.
So if I don’t accept that you were involved in the party then clearly I do not accept that you had suffered any harm. Do you understand the logic? Now there is a document that I would like to speak with you about that you had provided to DIMIA. I have read all of the documents that you have provided. Most of the documents you have provided relate to incidents that have taken place in Bangalore. Just because they happened it doesn’t mean there was a link to anything to do with you. You need to understand that. Do you understand?
Applicant:Yes, I do understand.
The Tribunal member then referred the applicant to his letter of appointment as General Secretary to a local area committee “minority cell”. Referring sarcastically to his “extreme lack of knowledge of the party”, she effectively told the applicant that she had decided to give it no weight:
Tribunal:Thank you. Now the document that I would like to speak with you about is folio 25 of DIMIA. I will tell you what that is. Folio 25 of DIMIA is a letter alleging to be from A. Who was he?
Applicant:He is the President of Congress Party in J … minority block.
Tribunal:Now he says that you were appointed as the General Secretary. You have never said that to me today, isn’t that right?
Applicant:No, we didn’t go to 1996. We are still in 1994 and about that.
Tribunal:So when did you become the General Secretary of the party?
Applicant:1996. In 1996 I became the member, the joined the J … and … J is a member of Parliament.
Tribunal:But you said to me you became a member in 1994?
Applicant:Youth member in 1994. I become a youth member in 1994.
Tribunal:A youth member in 1994 and a full member in 1996 you say?
Applicant:1996 I became General Secretary.
Tribunal:And this is supposedly a branch of the party?
Applicant:Yes.
Tribunal:Now given your extreme lack of knowledge of the party how on earth could you have become the General Secretary of the Party?
Applicant:The thing is I don’t have a broad knowledge of what happened before the thing but I was doing wide work for them in the areas. Whatever areas they are doing.
Tribunal:Sorry, could you?
Applicant:In South Bangalore I was heading the areas, what they were supposed to – with the wards, these particular members. J… comes under five wards, five areas, different areas. But I was working on that particular five areas but I was not concerned with that areas or anything. That particular branch.
[Advisor]:Explain the wards.
Tribunal:Sorry?
[Advisor]:Wards, he says wards. Not the electorates.
Tribunal:Now what I am trying to put to you is that if I form the view that you were not a member of the party ever then I would reach a conclusion that this document here that you have provided has been fabricated and/or does not contain truthful information. Therefore I will not give it any weight. Do you understand what I am saying?
Applicant:Okay.
Tribunal:Would you like to comment on that because - - -
Applicant:…
Tribunal:I accept that this is a copy of an original document but it does not necessarily mean that this is a genuine document or that it contains truthful information. It wouldn’t be difficult to get somebody to write a letter like this. It wouldn’t be difficult at all to fabricate a letter of this type. Is there anything you would like to say?
Applicant:Nothing to say.
Tribunal:Nothing to say. Now I don’t have any further questions to ask you. Clearly you can see that I have concerns about your application. The most fundamental is your apparent lack of knowledge about anything to do with the party. As I said, that is the most fundamental aspect of your claim so if I reject that claim it follows that I would reject everything else. Now is there anything you would like to say before I close this hearing? This is your opportunity to put your case in full to me please?
Applicant:I don’t have anything to say beyond this, ma’am.
In my opinion, it might appear to an observer of the hearing that the reason that the applicant said he had nothing more to say, was that he had concluded that it would serve no purpose to attempt to inform the Tribunal about his more recent political activities and the resultant persecution which he claimed caused him to leave India, since the Tribunal appeared to have closed its mind to any possible merit in his claims. In view of the remarks which had preceded the statement “this is your opportunity to put your case in full to me please”, he appears to have seen no purpose in responding further.
In this respect, I consider that an informed lay observer might have reached the opinion that the Tribunal had decided the case much earlier in the hearing, upon its opinion as to his “extreme lack of knowledge” of Congress party history. Without hearing the applicant’s relevant recent history, the Tribunal had set him an unwarned, viva voce history examination, which lacked a reasonable foundation for the assumption that the applicant should be expected to have the knowledge demanded. The Tribunal had then scorned his explanation for his lack of knowledge, and had effectively told him that, as a result, it would dismiss all his evidence about his political activities and his corroborative document as fabricated. I consider that an observer might conclude that the Tribunal’s offer to hear more evidence from the applicant appeared to lack bona fides, and offered an opportunity devoid of purpose.
Before the hearing concluded, an exchange occurred between the Tribunal member and the applicant’s advisor. He said that there were further questions which should be asked by the Tribunal, and requested that it inquire into the applicant’s “knowledge of his wards, political knowledge about the leaders or members and the parliamentary members in the area where he was branch secretary. So whether he could tell who was the member of parliament in the area, who were the ward members in the area?” The Tribunal then did ask a few questions, which concluded with a dismissive comment: “yes, it doesn’t mean you were a member of the party though”.
The advisor then indicated that he thought that there would be no purpose in his making any submissions to the Tribunal, since it had “point blankly said that he is not a member of the party”. The Tribunal member denied this, but said: “I think I gave a very clear explanation of the bases of any potential decision I am going to make”.
In my opinion, nothing said by the Tribunal in the course of this exchange would have dispelled an observer’s apprehension that, at a point significantly earlier in the proceedings, the Tribunal had closed its mind to receiving the applicant’s claims and giving them a genuine unbiased consideration. The observer would have found his or her apprehensions confirmed by the fact that the applicant and his advisor both appeared to have formed the opinions that there was nothing that the applicant could say as evidence, or his advisor say by way of submission, which could alter its judgment.
I consider that the observer’s apprehension arising from how the Tribunal conducted its hearing would have received confirmation in the reasoning and language used in the Tribunal’s published reasons for affirming the delegate’s decision. It said:
… It was simply astonishing and incredulous [sic] how little he knew about the Party. … The Tribunal is of the view that the applicant’s lack of knowledge of factual matters relating to the Party is extreme and clearly incommensurate with his claims, indicating that they have been fabricated. …
On the basis of the evidence as a whole and given the applicant’s lack of knowledge of factual matters relating to the Party as well as the vagueness of the responses noted above, the Tribunal rejects the applicant’s claims that he was a General Secretary or a member of the ICP. For the same reasons, the Tribunal rejects the claim that the applicant was ever involved in any Party activities, including but not limited to, supporting the local candidate. The Tribunal is satisfied that the applicant has fabricated these claims in order to support his application for a protection visa. Although the applicant claimed that BJP members also hated him for being a Muslim, his claims of harm are fundamentally linked to his claims of membership of the ICP and Party‑related activities. As the Tribunal has not accepted those claims, it follows that the Tribunal does not accept that the applicant was assaulted in November 1994, or that the police did not take any action, or that he, his relatives and his friends were targeted by the BJP/other parties, or that he received threatening telephone calls, or that he was harassed, or that stones were thrown at his house, or that his shop was destroyed, or that he had to move to another area to avoid harm, or that his brother was abused. In essence, the Tribunal does not accept that the applicant has suffered any of the claimed harm.
Under the statutory procedures governing the Tribunal, it was required to afford the applicant an opportunity “to give evidence and present arguments relating to the issues”, and for that purpose to conduct a hearing which was “real and meaningful” and not to be “a hollow shell or an empty gesture” (see s.425 of the Migration Act and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]). The evidence taken at the hearing was required to “be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT” (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [37] and [171], also [9], [56], [106], [168], [172]). Conduct in relation to the hearing which might cause the relevant apprehension that the Tribunal did not have a mind prepared to allow the applicant that opportunity, and genuinely to maintain its detachment of judgment until that opportunity was fully afforded, would reveal a jurisdictional failure by the Tribunal.
As I have indicated above, I consider that such conduct should be found in the present proceedings. My conclusion is based upon my impression from reading the whole of the transcript of the hearing, including the following elements in the Tribunal’s proceedings:
i)The Tribunal had prepared for the hearing intending to test the applicant’s knowledge about the history, at a national level, of the Indian National Congress and Congress Party, notwithstanding the absence of anything in the applicant’s claims which would suggest that he claimed to be more than an active party worker in recent local elections.
ii)It administered its history test after the applicant gave a credible account of injuries suffered in an attack in 1994, and before he had been invited to recount his involvement in local party activities in subsequent years leading to his departure for Australia.
iii)Its history test included questions as to the far distant origins of the Indian National Congress before either independence or democracy reached India, and without any proper foundation for its expectation that this would be familiar to the applicant.
iv)At the conclusion of its test, the Tribunal told the applicant that his lack of knowledge was “extreme” and “so fundamental”, and required the applicant to accept its assessment.
v)It then strongly suggested to the applicant that it would decide the case based upon its opinion that the applicant had failed its history test, and displayed no real interest in further investigating the factual history claimed by the applicant.
vi)The applicant appeared intimidated by the Tribunal’s conduct into giving incomplete evidence, and discouraged from giving further evidence.
vii)The Tribunal’s conduct similarly created the impression in the mind of the applicant’s advisor that it had decided against the applicant, and that there was no purpose in seeking to change its adverse opinions.
viii)The likelihood that the Tribunal had closed its mind prematurely was confirmed by the Tribunal’s subsequently published reasons, whose foundation was its opinion that the applicant had shown an “extreme” lack of knowledge of “factual matters relating to the Party”.
For the above reasons, I consider that the tests of apprehended bias have been established in this case.
It was not contested that, should I arrive at this conclusion, I could not find jurisdictional error vitiating the Tribunal’s decision, nor that there is any reason for withholding relief by way of writs of certiorari and mandamus. I shall hear the parties further in relation to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 26 July 2006
CORRECTIONS
Paragraph 27 line 14 – insert “not” between the words “did have”.
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