SZITH v Minister for Immigration
[2009] FMCA 877
•24 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 877 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal decision – bias – apprehension of bias – incident at Tribunal hearing – exchange between Tribunal Member and migration agent – finding of apprehended bias – certiorari and mandamus issued. |
| Migration Act 1958 (Cth), ss.424A, 476 |
| SZITH v Minister for Immigration & Anor [2007] FMCA 1162 SZITH v Minister for Immigration & Anor [2008] FMCA 1111 SZITH v Minister for Immigration and Citizenship [2008] FCA 1866; (2008) 105 ALD 541 SZITH (No 2) v Minister for Immigration and Citizenship [2008] FCA 1932 Webb v R (1994) 181 CLR 41 Johnson v Johnson (2000) 201 CLR 488 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264; [2004] FCAFC 328 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Epeabaka (2001) 206 CLR 128 Re Minister for Immigration and Multicultural Affairs; ex parte AB (2001) 177 ALR 225 |
| Applicant: | SZITH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 346 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 May 2009 |
| Date of Last Submission: | 7 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Prince (appeared pro bono) |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor (Ms Anniwell) |
ORDERS
An order in the nature of certiorari is to issue to quash the decision of the Refugee Review Tribunal signed on 8 January 2008 and handed down on 17 January 2008.
An order in the nature of mandamus is to issue remitting the Applicant’s application for a Protection (Class XA) visa to the Refugee Review Tribunal for determination according to law.
The First Respondent is to pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 346 of 2008
| SZITH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant has applied for review of a decision of the Refugee Review Tribunal signed on 8th January 2008 and handed down on 17th January, affirming a decision of a delegate of the Minister not to grant him a Protection (Class XA) visa.
The issue before the Court is whether the Tribunal fell into jurisdictional error on the basis of apprehension of bias on the part of the Tribunal Member, arising out of an incident at the hearing.
Background
The history of this matter is that the Applicant is a citizen of Bangladesh who arrived in Australia on 3rd December 2005, as a member of the crew of a merchant ship. He jumped ship in Townsville and was detained by Immigration officers on 5th December 2005. He applied for a protection visa on 21st December 2005.
A delegate of the Minister for Immigration and Citizenship refused his application for a visa on 3rd January 2006.
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 10th January 2006. On 27th March 2006 the Tribunal signed a decision affirming the delegate’s decision not to grant the Applicant a protection visa.
The Applicant sought judicial review of the Tribunal decision by means of an application to this Court. On 13th July 2006 Raphael FM made the following orders by consent:
a)An order in the nature of certiorari quashing the decision of the Tribunal;
b)An order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the Applicant.[1]
[1] Court Book 275
The Applicant attended a further hearing of the Tribunal on 3rd October 2006. In a decision dated 9th November 2006, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.[2]
[2] Court Book 357
The Applicant again sought judicial review of the Tribunal decision. On 31st July 2007 Driver FM issued writs of certiorari and mandamus and the application was remitted to the Tribunal (SZITH v Minister for Immigration & Anor[3].)
[3] [2007] FMCA 1162
The Tribunal invited the Applicant to a hearing scheduled to take place on 2nd November 2007.[4]
[4] Court Book 401
The Applicant attended the hearing on 2nd November 2007, accompanied by his migration agent, Ms Beatriz Stolz, two other people who were noted on the hearing record as “witnesses”, Mr Abul Monsur and Mrs Mairi Petersen, and a Ms Judith Gaskin, who was noted as an “observer”.[5]
[5] Court Book 480
The Applicant, Mr Monsur and Mrs Petersen all gave evidence at the hearing and Ms Stotz made a submission to the Tribunal on behalf of her client. The Tribunal indicated at the hearing that it would write to the Applicant in accordance with s.424A of the Migration Act.
On 7th November 2007 the Tribunal wrote to the Applicant, care of Ms Stotz, a letter headed Invitation to Comment on Information in Writing”.[6] The letter asked the Applicant to provide written comments by 21st November 2007.[7] On 21st November 2007 the Tribunal acceded to a request by Ms Stotz for an extension of time to provide those comments and advised that the comments were to be received by 19th December 2007.[8]
[6] Court Book 502-509
[7] Court Book 509
[8] Court Book 526
The Applicant’s response was faxed to the Tribunal by Ms Stotz on 18th December 2007.[9]
[9] Court Book 527-531
The Tribunal handed down its decision on 17th January 2008, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant’s claim has been conveniently set out by counsel for the Minister, Mr Reilly, in his written submissions filed on 16th April 2009:
The Applicant claimed to fear persecution in Bangladesh for reason of his political opinion. He claimed to be a member of the Awami League (AL) and to fear harm from members of the rival Bangladesh National Party (BNP) and Jamaat-e-Islami (JI). As ultimately presented to the Tribunal he claimed that he had worked for the AL in his local district, where he was its Publications Secretary from 1982 until 2005 and held meetings, that he had been threatened and attacked by BNP and JI members in 1991 and made the subject of false charges of murder and robbery in 2002, and that a warrant had been issued for his arrest on 20 May 2002. He claimed that he left Bangladesh on his own passport in February or March 2003 to join a cargo ship in Europe, and returned in January 2004 using his own passport, before again leaving to join a cargo ship in Australia in October 2005. He claimed that his son had been arrested for three days in 2004, and that he had been told his son had disappeared in February 2006, and that the Applicant feared he had been kidnapped.[10]
[10] First Respondent’s Written Submissions filed 16 April 2009 at paragraph [3]
The Tribunal decision has been succinctly summarised by the Applicant’s counsel, Mr Prince in his written submission dated 14th May 2009:
48.The Third Tribunal’s decision turned entirely on its view of the truthfulness of the applicant.
49. The Third Tribunal:
a. Did not accept that the applicant was telling the truth about his involvement in the Awami League or the problems he claims to have experienced as a result of that involvement;
b. Having regard to the view it formed of the applicant’s credibility it did not accept that the applicant was ever involved with the Awami League or with its student wing the Chhatra League;
c. Did not accept that the applicant ever held any position in the party;
d. Did not accept that members of BNP or Jamaat Shibir made false allegations against him at any time;
e. Did not accept that as a result of false charges he had been charged with offences in Bangladesh and that a warrant had been issued for his arrest;
f. did not accept that since May 2002 the Police in Bangladesh have been looking to arrest him nor that they arrested and questioned and questioned his son in November 2004 nor that the applicant’s son had been subsequently kidnapped or that his family thinks his son has been kidnapped because there has been no news of him.
50.Accordingly, the Tribunal concluded that it did not accept that there is a real chance that the applicant could be persecuted for reasons of real or imputed political opinion if he returned to Bangladesh.[11]
[11] Applicant’s Written Outline of Submissions 14 May 2009 at paragraphs [48]-[50]
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and affidavit in support on 12th February 2008. On 19th August 2008 Smith FM dismissed the application (SZITH v Minister for Immigration & Anor[12]).
[12] [2008] FMCA 1111
The Applicant appealed. On 10th December 2008 Middleton J upheld the appeal (SZITH v Minister for Immigration and Citizenship[13].) The orders of the Court were:
[13] [2008] FCA 1866; (2008) 105 ALD 541
1. The appeal be allowed.
2. The matter be remitted to a differently constituted Federal Magistrates Court for a re-hearing and reconsideration only of the issue of bias taking into account any admissible evidence of Mrs Peterson adduced by the appellant.
3. There be no order as to costs
On 18th December 2008, (after further submissions) Middleton J made the following orders:
1. The orders of the Federal Magistrates Court be set aside.
2. There be no order as to costs of the proceedings before the Federal Magistrates Court.
(See SZITH (No 2) v Minister for Immigration and Citizenship[14]).
[14] [2008] FCA 1932
The Re-hearing before the Federal Magistrates Court
The proceedings were heard before me on 7th May 2009. The Applicant relied on affidavits deposed to by:
a)Himself;
b)Beatriz Teresa Stotz;
c)Abul Monsur; and
d)Mairi Isobel Wilson Petersen.
Before the evidence of the witnesses was taken, the compact disc recording the hearing of the matter by the Refugee Review Tribunal was played in Court up to and including the matters that counsel considered relevant.
The applicant and the three other witnesses were all required for cross-examination.
The Applicant gave his evidence first. The Applicant’s affidavit evidence, summarised, was that he recalled that the Tribunal Member appeared to be angry during the hearing. The Applicant sat at a table with Ms Stotz, his migration agent, on one side and an interpreter on the other side. Mrs Petersen and Mr Monsur sat behind him, as did Ms Judith Gaskin, who was an observer.
Ms Gaskin did not give evidence in these proceedings.
The Applicant deposed that at one point during the hearing there was an argument between the Tribunal Member and Ms Stotz. He deposed that he could see from his voice and his face that the Member became very angry with Ms Stotz.
The Applicant remembered that during the argument the Member “stood up and rushed around the table pointing his finger at Ms Stotz. He came and stood near to me and pointed at some documents and asked me some questions. He seemed to still be angry”.[15]
[15] Affidavit of SZITH affirmed 11 March 2009 at paragraph [7].
The Applicant deposed that Abul Monsur tried to say something but the Member told him to be quiet. He still seemed to the Applicant to be quite angry.[16]
[16] Affidavit of SZITH at [8]
The Applicant deposed to being afraid that “things would get out of hand and that there might be fighting.”[17]
[17] Affidavit of SZITH at [9]
The Applicant deposed that he had been in two previous Tribunal hearings and had “never seen any behaviour like this before. I felt very shocked…”[18]
[18] Affidavit of SZITH at [10]
The Applicant went on to claim in his affidavit that he “felt afraid” of the Member and “did not want to upset him again.”[19]
[19] Affidavit of SZITH at [12]
The Applicant was cross-examined by Mr Reilly of counsel, who appeared for the Minister. He told the Court, through the interpreter, that he saw the Member “actually stand up and come over to the Mr – to the migration agent’s chair.”[20]
[20] Transcript page 15 lines 22-23
When asked about the Member appearing to be angry, the Applicant said:
You know when people get angry, the expression come to the people’s face? His face, same as this, and his eyes got red. He also pointing the finger.[21]
[21] Ibid lines 31-33
The Applicant confirmed that the member stood up and came around the table, pointing his finger at Ms Stotz[22] but was unable to identify the point on the CD of the hearing when the incident occurred. He agreed that the incident would have taken no more than about 30 seconds.[23] He also confirmed his belief that the Member and Ms Stotz might be “going to fight each other”.[24]
[22] Ibid lines 44-47
[23] Transcript 17, line 15
[24] Ibid 36-37
The Applicant went on to say that both the Member and the migration agent were “shaking” and he then said:
I believe – I believe the migration agent is – she was so afraid that she’s shaking – she was shaking.[25]
[25] Transcript 18 lines 10-11
The Applicant agreed that he was “very shocked” by the Member’s behaviour but he did not make a complaint after the hearing to the Member.
In re-examination by Mr Prince of counsel, the Applicant explained why he did not make a complaint to the Tribunal Member during the hearing:
Firstly, I thought that his arguing between – the incident happened between my (indistinct) and the Mr – member, not with me, and, secondly, I thought, if I made a complaint during the hearing, it might affect my case…
I – I was afraid that, if member get upset, might affect my case – my – my case might give the negative issue (?) from him.[26]
[26] Transcript 19 lines 12-15, 20-21
Mr Abul Monsur gave evidence with the assistance of the interpreter. He deposed in his affidavit affirmed on 11th March 2009 that he attended the Tribunal hearing on 2nd November 2007. He deposed in his affidavit:
I had a clear view of the Tribunal member and could see his face.
During the hearing I recall the Tribunal Member raising his voice at the migration agent. I recall that the migration agent tried to give explanations to the Tribunal Member but he became angry with her and lost his temper with her.
I recall that on one occasion the migration agent was attempting to explain something and the Tribunal Member became angry and was arguing with her. I thought he was rude to her.
At one point the Tribunal member stood up grabbed some papers and suddenly came around to his left of the table. He stood near the migration agent and the applicant and was aggressively pointing at the papers and asking more questions as he did this. I was very surprised by this and thought his behaviour was very rude, aggressive and threatening.
During the argument with the migration agent, the Tribunal member’s face looked to me to have a very angry and threatening expression. I could not see the expression on the face of either the applicant or the migration agent as I was sitting behind them.[27]
[27] Affidavit of Abul Monsur affirmed 11 March 2009 at paragraphs [7]-[11]
In cross-examination, Mr Monsur was unable to identify exactly the spot on the recording of the hearing where he said the exchange between the Member and Ms Stotz took place.[28] He thought the incident where the Member stood up and approached Ms Stotz “probably” happened “at the end of the hearing”.[29]
[28] Transcript 21 lines 32-33, 46
[29] Transcript 22 at 16
In answer to questions from the Bench, Mr Monsur said that the Member did not travel very far to walk over to the Migration agent, about two or three metres. He said that the Member moved quickly.
Beatriz Teresa Stotz gave evidence. In her affidavit, affirmed on 10th March 2009, she gave evidence that she has been a migration agent since 2002 and has attended numerous Refugee Review Tribunal hearings in that capacity since 2004. She appeared with the applicant as his migration agent at the hearing on 2nd November 2007.
Ms Stotz deposed that at times during the hearing the Member “raised his voice and behaved in an argumentative manner which I had never [heard?] from him or any other Member of the Tribunal previously”.[30]
[30] Affidavit of Beatriz Teresa Stotz affirmed 10 March 2009 at paragraph [5]
Ms Stotz further deposed that during a discussion the Member “raised his voice adopted an argumentative tone and appeared to be angry with me. He made comments which appeared to me to convey an accusation that I had not adequately prepared the case.”[31]
[31] Affidavit of B.T. Stotz at [10]
She went on to depose that during the exchange, the Member “stood up suddenly, gathered up papers and quickly came around the bench to his left to our side of bench. I was feeling quite concerned and shocked.”[32]
[32] Affidavit of B.T. Stotz at [11]
Ms Stotz stated that the Member “stood by the Applicant and thrust a folder of papers in front of the Applicant and pointed aggressively at some part of the papers and then asked the interpreter to ask the Applicant something.”[33]
[33] Affidavit of B.T. Stotz at [12]
She then deposed:
I was terribly shocked by this incident. I have never seen a Member behave in this way and it was particularly very uncharacteristic of [this particular member]. Sometimes, but not commonly, a Tribunal Member may approach to assist an applicant with a document he or she does not have. When this happens the normal course is for the Tribunal member to tell the applicant what they are about to do through the interpreter in a respectful manner. [The Member’s] conduct was very different to this approach.[34]
[34] Affidavit of B.T. Stotz at [13]
Ms Stotz stated that the Member resumed his seat and the hearing continued, but she continued to be apprehensive:
I felt that I could not ask the Tribunal Member to adjourn hearing after this incident because I did not want to make him angry again and expose the applicant and the witnesses to a repeat of that situation. As a result of this incident I felt powerless and my trust in [the Member] to provide this applicant a fair hearing was shaken.[35]
[35] Affidavit of B.T. Stotz at [15]
She identified the incident as taking place at approximately pages 7 to 10 of the transcript of the Tribunal hearing annexed to the affidavit of Elizabeth Ann Hilton.
In her examination in chief, Ms Stotz made a minor correction to paragraph 12 of her affidavit.
In cross examination by Mr Reilly, Ms Stotz experienced some difficulty in specifying exactly the point on the recording that coincided with the incident where the Member stood up and approached her, but believed it to be at a point when the Member was speaking to her and the interpreter was not interpreting the conversation. She described how the Member got up, put some papers in front of the Applicant and then asked a question. He pointed at the papers when he asked the question.
Ms Stotz was asked by Mr Reilly why the incident was shocking to her and she replied:
Because the member came around and I was not expecting the member to suddenly stand up and come around and at the time he did that he was – he seemed to be quite angry and his voice was raised. So when he suddenly came to the other side, to our side and then he thrust, he threw these papers in front of the applicant and was pointing that’s not something that had ever happened at the hearing, any of the hearings that I have attended.[36]
[36] Transcript page 36 lines 17-23
Ms Stotz confirmed that she did not complain about the incident, saying:
I couldn’t really complain because the member when I was trying to raise issues before didn’t let me speak and when I was trying to explain something the member seems to be getting more and more upset and so I was – I was looking at the applicant and he seemed really frightened and I really felt I had no power to do anything. And also it was a very surprising moment when that happened.[37]
[37] Ibid lines 40-45
Ms Stotz did not agree to the suggestion from Mr Reilly that “everything calmed down” after that incident:
Well, I don’t think so. I didn’t feel calm throughout the hearing.[38]
[38] Transcript 37 lines 2-3
She went on to state that her belief that if she had not complained about the incident at the hearing because of her fear that a complaint would only make the Member more angry with adverse consequences for her client. She also felt that she could not raise any complaint after the hearing if she had not done so during the hearing. She went on to say:
I didn’t feel I had any power to actually tell the Member how he was behaving because I never had this situation before.[39]
[39] Transcript 38 lines 28-30
Mr Reilly asked Ms Stotz:
But it’s an obvious step to take I would suggest if you really think a particular member is biased against you to ask him to disqualify himself?[40]
[40] Ibid lines 40-41
She replied:
It wasn’t that he was biased against me…
…It was because of the way the hearing was conducted that I felt that affected [the applicant] and the way he gave evidence.[41]
[41] Transcript 38 lines 41-45
In answer to questions from the Bench Ms Stotz said that she was shocked both by the Member getting up and going around to the Applicant and by the way that he spoke to her. She was asked:
Now you did hear the CD being played. He didn’t seem to raise his voice very much. He was hardly shouting at you or anything like that. Is that a fair description?
Ms Stotz replied:
I don’t remember all the details of what he was saying but it was the way he was looking at me and the way he was moving his body and just his non verbal way when he was talking.[42]
[42] Transcript 39 lines 41-45
In re-examination Ms Stotz said that she did not feel as though she had the power to complain about the behaviour of the Tribunal Member. She also said that she had never been told about any formal complaint mechanism that existed whereby she could raise concerns about Tribunal Members’ conduct during hearings.
Mairi Isobel Wilson Petersen gave evidence. In her affidavit, affirmed on 10th March 2009, she deposed that she had been present at the hearing on 2nd November 2007.
In particular, Mrs Petersen deposed:
At several points during the hearing [the Member] appeared to me to have an aggressive demeanour, particularly towards Ms Stotz. When he became aggressive his face would turn red and he would raise his voice.
At one point during the hearing, I saw [the Member] stand up from his chair, stride around his table via his left hand side towards Ms Stotz. He had his forefinger raised as he approached her and he was speaking in a raised and aggressive tone as he walked towards her. He appeared to me to have an aggressive demeanour at this time.
As he [the Member] approached Ms Stotz his demeanour was such that I believed it was possible that he might strike her. I was so concerned that I remember I instantly started to consider what I would do if [the Member] hit Ms Stotz.
[The Member] then stood close to Ms Stotz and continued speaking in a raised and aggressive tone and waving his forefinger at her. I cannot recall the words that he spoke but I recall that he was admonishing Ms Stotz’s competence at this point.
I cannot recall Ms Stotz’s face during the course of this incident as I was sitting in the row behind her. I do recall observing the applicant during this incident and [he] appeared to sit with a very nervous demeanour.
I cannot recall how long it was before [the Member] resumed his seat, it seemed like a long time to me, although I estimate it may be around 30 seconds to 1 minute.[43]
[43] Affidavit of Mairi Isobel Wilson Petersen affirmed 10 March 2009 at paragraphs [7]-[12]
Mrs Petersen later deposed that:
I found [the Member’s] conduct at the hearing to be more frightening than any conduct of any irate parent which I experienced in 35 years as a teacher and Deputy Principal.[44]
[44] Affidavit of M.I.W. Petersen at [14]
In cross-examination, Mrs Petersen said that the Member’s “raised and aggressive tone” of voice was that which the Court had heard when the recording was played. She expressed a fear at the time that it was possible the Member might strike Ms Stotz:
I don’t think punching but I thought maybe slapping or maybe you know…
…Not necessarily on the face but on her body somewhere.[45]
[45] Transcript 44 at lines 33-37
She agreed that she had attended “quite a few” RRT hearings during which time no one struck anyone:
But I’ve never seen someone be as aggressive either.[46]
[46] Transcript 45 line 10
Mrs Petersen went on to explain her basis for believing that it was possible that the Member might hit Ms Stolz:
Because at the time he was standing very close in front of her and he had his finger up waving at her and speaking to her in a very aggressive tone, coupled with his very red face. He looked to me, looked very angry and I believe that he could have. And at that time I was really concerned that that might happen and that – the thought ran through my mind what shall we do or what would we do if that happened.[47]
[47] Ibid lines 17-22
Mrs Petersen said that, apart from in the previous court proceedings, she had not made a complaint about the incident. She explained:
I’m just a lay person and I was not aware that one could do that. If I had been aware that I could do that I certainly would have.[48]
As I said I’m a lay person and I didn’t know at that time point in time (sic) that I was able to do that. If I had been aware that I could then I would have.[49]
[48] Transcript 47 lines 8-9
[49] Ibid lines 25-27
There was no further evidence.
The Applicant’s Submissions
Counsel for the Applicant submitted that the evidence of the Applicant and his three witnesses was largely consistent in terms of the main features of the events which they described. The evidence showed that an incident occurred that the witnesses found shocking and was not consistent with appropriate behaviour, either by a judge or a Tribunal Member. He submitted that the type of behaviour described should not be condoned and that the whole point of the doctrine of apprehended bias is to ensure the highest standards of probity and to ensure public confidence in the administration of justice and public officials.
In his written submissions, Mr Prince of counsel submitted that the Tribunal made a series of findings which, in the context of the evidence as a whole, would support a reasonable apprehension of the possibility of bias. They included:
a)Findings if inconsistencies which were not in truth inconsistencies;
b)Failing to acknowledge evidence which was favourable to the Applicant’s credit and corroborated earlier evidence in circumstances where the Tribunal had earlier assumed an inconsistency; and
c)Making findings of recent invention based on matters of form rather than substance.
As to apprehended bias, Mr Prince referred the Court to Webb v R[50]; Johnson v Johnson[51]; R v Watson; Ex parte Armstrong[52]; Re Refugee Review Tribunal; Ex parte H[53]and NADH v Minister for Immigration and Multicultural and Indigenous Affairs[54].
[50] (1994) 181 CLR 41
[51] (2000) 201 CLR 488
[52] (1976) 136 CLR 248
[53] (2001) 179 ALR 425
[54] (20050 214 ALR 264
Submissions on behalf of the Minister
Counsel for the Minister has submitted that even if the evidence of the witnesses is accepted in full there is no evidence of apprehended bias. While that behaviour may have been regrettable, it does not when the hearing is considered in total provide evidence of apprehended bias. It was submitted that after the relevant exchange with Ms Stotz the hearing proceeded in a calm and orthodox manner and concluded without complaint by Ms Stotz or any other persons present.[55]
[55] First Respondent’s Written Submissions filed on 16 April 2009 at paragraph [7]
Again, counsel for the Minister referred the Court to the decisions in Re Refugee Tribunal; Ex parte H at [27]-[28], NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[56] at [13]-[21] to submit that for the Tribunal to have exhibited apprehended bias the Court would need to be satisfied that a fair minded observer might apprehend that the Tribunal was not impartial. The hypothetical observer is no more entitled to make “snap judgments” as to apprehended bias than is the Tribunal as to the merits of the Applicant’s case (Johnson v Johnson[57] at [14], [53]). The apprehended bias principle requires a logical connection between the conduct complained of and the ultimate decision (Ebner v Official Trustee in Bankruptcy[58] at [8]).
[56] Both supra
[57] Supra
[58] (2000) 205 CLR 337
It was further submitted that all a reasonable observer would apprehend was that the Member was temporarily irritated with Ms Stotz’s inability to assist him on an issue which the Member considered she should have been aware of. There is no logical connection between the displeasure exhibited by the Member and the suggested lack of impartiality to the Applicant himself. That conclusion is strengthened by the Tribunal’s subsequent s.424A letter setting out the Member’s concerns in detail. The letter is indicative that the Member did not have a closed mind to the Applicant’s case after the hearing although it had a number of specific concerns with the Applicant’s evidence.
In supplementary written submissions filed on 29th May 2009, Mr Reilly submitted that the only issue remaining to be decided is the Applicant’s claim that the Tribunal’s decision should be set aside on the ground of apprehended bias.
It was submitted that there is no reason why the Court cannot have regard to the views expressed by Smith FM in SZITH v Minister for Immigration & Anor[59] on the issue of apprehended bias and no reason why the First Respondent cannot adopt those views. Middleton J explicitly expressed no view as to the correctness of Smith FM’s conclusions (SZITH v Minister for Immigration and Citizenship[60] at [73]). Whilst Smith FM’s decision carries no precedential value as it has been set aside but the First Respondent considers those views to be correct and adopts and relies upon them by way of submission.[61]
[59] [2008] FMCA 1111
[60] [2008] FCA 1866; (2008) 105 ALD 541
[61] First Respondent’s Supplementary Written Submissions 29.5.2009 at paragraph [4]
It is unnecessary to repeat those paragraphs from the decision of Smith FM[62] upon which the First Respondent relies, but a short summary will possibly assist. His Honour said at [23]-[31] of SZITH:
[62] [2008] FMCA 1111 at [23]-[31]
a)A contention emerged during the Applicant’s submissions that the Tribunal’s decision was affected by an apprehension of a prematurely closed mind against the Applicant arising from some features of the hearing and the Tribunal decision. His Honour was referred to two exchanges between the Member and Ms Stotz in the partial transcript of the Tribunal hearing, which caused him to listen to full recording of the hearing and allow both parties to make further submissions;
b)The High court has identified the appropriate test of apprehended bias in Re Refugee Review Tribunal & Anor; Ex parte H[63];
c)In Ex parte H, the High Court pointed out that an assessment of ostensible bias in the present context must take into account the different nature of the Tribunal’s proceedings when compared to curial proceedings;
d)The Applicant’s written submissions claimed that the Member came to the hearing with a closed mind and was “very aggressive” in exchanges with Ms Stotz. The Applicant’s post-hearing submission asserted that the Member left his chair and proceeded toward Ms Stotz, shaking his forefinger at her and it appeared that he was about to strike her. His honour was unable to detect from listening to the sound recording any such incident occurring. The accusation was not foreshadowed prior to the hearing and the respondents were unable to respond to it.
e)The Tribunal did not take into account that the Applicant came from a different social and cultural environment;
f)The attack on the Tribunal Member for being interested in determining whether the Applicant’s claimed history in Bangladesh could be accepted as true was misconceived;
g)The fact that the Tribunal Member sought to test the Applicant’s credibility by addressing the consistency with which he had presented important elements in his evidence would not come as a surprise to a fair-minded observer of the hearing or reader of the decision;
h)The fact that an adverse conclusion on credibility was arrived at in the Tribunal’s ultimate decision, with reference to logical and supported reasons which had previously been put to the Applicant, does not suggest that there was any predetermination of the outcome;
i)His Honour did not find anything in the Tribunal Member’s questioning of the Applicant at the hearing, nor the subsequent s.424A invitation for comments, nor in his ultimate statement of reasons, which persuaded his honour that the Member prematurely closed his mind to a proper assessment of the Applicant’s refugee claims.
j)The Member’s pauses in framing his questions to the Applicant and when reflecting upon the Applicant’s responses do not show bias against the Applicant or a closed mind, but the contrary. Listening to the sound recording, his Honour could find nothing in the manner in which the Member questioned the Applicant which would give rise to any concern:
…such as unfair or irrational questions, intimidation, unfair interruption, harassment, or discouragement, which have been found in cases where a ground of apprehended bias has been made out (e.g. VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102).[64]
[63] supra
[64] [2008] FMCA 1111 at [31]
Mr Reilly submitted that it was most likely that Ms Stotz’s account of the incident was correct, as she is a migration agent and more familiar with the Tribunal. Accepting the correctness of Ms Stotz’s account, it was submitted that the most likely reason the Member left his desk was to point out to the Applicant a passage in the second Tribunal’s decision. The only basis for the suggestion of apprehended bias arising from this 30 second incident was evidence from witnesses that the Member had a red face and looked angry, and that Mrs Petersen feared that it was possible that the Member might strike Ms Stotz and the Applicant feared that fighting may occur.
Counsel for the Minister submitted that the suggestion that a reasonable observer might apprehend that the Member might strike Ms Stotz or that fighting might occur can be dismissed out of hand. Ms Stotz herself did not claim that she feared she would be struck.
Thus, it is submitted, the Court is left with the witnesses’ observations that the Member’s face was red and that he looked angry. The recording of the hearing was before the Court and in fact played in open Court. The tone of voice of the Member, it is submitted, displays no more irritation than that of Ms Stotz.
Ms Reilly submitted:
The incident when the member left his chair, and the surrounding exchange with Ms Stotz is at its highest an isolated incident of irritation or ill-temper by member, after which the hearing progressed without incident. This provides no basis to infer apprehended bias.[65]
[65] First Respondent’s Supplementary Written Submissions at paragraph [9]
Further, Mr Reilly submitted that none of the other matters raised by counsel for the Applicant, whether taken together or cumulatively, provide any basis for the allegation of apprehended bias.
Apprehended bias is a serious matter that must be “firmly established” (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Epeabaka[66] per Kirby J at [90]).
[66] (2001) 206 CLR 128
Mr Reilly submitted that the Tribunal hearing and decision in this case are ‘a far cry” from the situation in Re Refugee Review Tribunal; Ex parte H, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs or VFAB v Minister for Immigration and Multicultural and Indigenous Affairs, because each of those cases involved the Tribunal displaying a strong disbelief of the Applicant during the hearing combined with sustained and unfair questioning such that a reasonable observer could well infer that there was nothing that the Applicant could say that would alter the Tribunal’s views. Also, in NADH there was a decision that the Court regarded as perverse and indefensible.
Again, in both NADH and VFAB the applicant’s representative had complained about the Tribunal’s conduct shortly thereafter, which is not the case here. The lack of complaint is a relevant matter in assessing a claim of apprehended bias (Re Minister for Immigration and Multicultural Affairs; ex parte AB[67] at [13]).
[67] (2001) 177 ALR 225
Counsel for the Minister submitted that the hearing in this case was marked by no more than “isolated displays of irritation” by the Tribunal and that isolated displays of irritation provide no basis for a claim of apprehended bias. Allegations of bias must be firmly established and have regard to the fact that decision makers are human beings with their own characteristics who will often exhibit robust individuality.
He submitted that apprehended bias had not been firmly established and that, as there is no jurisdictional error, the Tribunal decision is a privative clause decision within s.474 of the Migration Act and the application should be dismissed.
Conclusions
In my view, a foundation has been made for a finding of apprehended bias.
Whilst I have been referred to the decision of Smith FM in SZITH v minister for Immigration & Anor on the basis that the Minister adopts the reasoning in that decision, I am in a somewhat different position than his Honour was when that matter was heard.
For a start, the Applicant was unrepresented in the proceedings before his Honour, whereas he was represented by counsel, acting pro bono, I understand, in the proceedings before me. Thus, the application was properly prepared with appropriate affidavits from witnesses who were available for cross-examination.
Importantly, too, the allegation about the actions of the Tribunal Member at the hearing was very much the focus of the proceedings before me and not raised, without admissible evidence, in the Applicant’s post-hearing submission, which was the situation faced by his Honour.[68]
[68] [2008] FMCA 1111 at [26]
After hearing and reading the evidence of the witnesses, whose evidence was tested by cross-examination, I am of the view that the Tribunal Member did rise from his chair at one point during the hearing and move quickly towards the Applicant and Ms Stotz, in a way that caused concern to the Applicant, Ms Stotz and the Applicants’ two witnesses.
Like Smith FM and Middleton J, I have listened to the recording of the hearing, which was played in open Court. It was not necessary for the entire recording to be played as counsel for the parties agreed that the relevant part of the recording had been played.
The recording of the hearing and the transcript do not of themselves provide any foundation for a finding of apprehended bias. The matter stands or falls entirely on the evidence of the Member’s actions during a short period of time, estimated to be of no longer than 30 seconds to a minute at most.
In my view, the witnesses were not shaken in cross-examination by counsel. The Applicant and Mr Monsur, who gave their evidence with the assistance of an interpreter, were not able to pin-point the time on the recording of the hearing when the alleged incident occurred, but to my mind nothing turns on that.
Ms Stotz gave clear evidence of the incident and provided an explanation as to why she did not make a complaint at the time, or afterwards. She described how she felt “concerned and shocked” by the incident. She deposed that she had never seen a Member behave in that way before and she stated that such behaviour “was particularly very uncharacteristic of” that particular Tribunal Member.[69]
[69] Affidavit of B.T. Stotz 10.3.2009 at [13]
This description of the circumstances and her reaction to something that was outside her previous experience at the Tribunal gives credibility to Ms Stotz’s account of the incident.
Mrs Mairi Petersen’s evidence was very credible. I noted at the hearing that she was a good witness. She gave her evidence calmly without appearing to exaggerate any details. Mrs Petersen appeared to be an intelligent, articulate woman who was endeavouring to give an accurate account of the events of the day. She explained that as a lay person she was unaware at the time she was able to complain about the Member’s behaviour at the hearing.
In my view, the evidence of the Applicant and the three witnesses shows that the behaviour of the Tribunal Member was more than just a momentary display of irritation or ill-temper. It was highly unlikely that the Member ever intended to strike Ms Stotz, but it is noteworthy that both the Applicant and Mrs Petersen referred to a fear, even if only momentary, that there might be some violence.
The incident itself was short in duration, 30 seconds to a minute at most, but it clearly had a dramatic effect on the balance of the hearing. The hearing may have proceeded without incident from then on, but the Member’s behaviour had had such an effect on Ms Stotz and the Applicant that they were fearful of a repetition of the incident.
The incident was inexcusable. It is an inappropriate way for a Tribunal Member to behave, and it is far more serious than a momentary outburst of irritation or ill-temper. The hearing was doomed from that point on. A hypothetical lay observer, properly informed as to the nature of the proceedings and the matters in issue, would have formed a reasonable apprehension of bias by the Tribunal Member against either the Applicant or his migration agent, notwithstanding Ms Stotz’s evidence that she did not feel that the Member was biased against her. Ms Stotz gave evidence that she was not calm but fearful throughout the balance of the hearing.
The appearance of procedural fairness in the hearing was irretrievably damaged by the Tribunal Member’s aggressive actions in leaving his desk and approaching the applicant and his migration agent in the way he did. Tribunal proceedings cannot be conducted in a way that leads to their participants being in fear of the Tribunal Member.
I find that there is jurisdictional error and orders in the nature of certiorari and mandamus will issue accordingly.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 September 2009
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