SZITH v Minister for Immigration
[2008] FMCA 1111
•19 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1111 |
| MIGRATION – RRT decision – conduct of Tribunal hearing – questioning of applicant on prior statements – criticism of migration agent – no failure to observe required procedure – no reasonable apprehension of bias – no failure to take account of relevant matter – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 425 |
| Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | SZITH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 346 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 9 July 2008 |
| Date for Last Submission: | 14 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| 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
The applicant is a Bangladeshi seaman who deserted his ship in Brisbane in December 2005. He was soon taken into immigration detention, and while in Villawood detention centre he was referred to a migration agent, Ms Stotz, who assisted him to apply for a protection visa on 21 December 2005.
The applicant claimed to have been politically active in the Awami League from 1977 until 1985, when he commenced periodic employment as a seaman. He continued to be targeted by the BNP in 1991, when they made false allegations of murder about him. Further allegations were made in 2002, and in 2004 “I was unable to go to my house, because the members of that Party were always looking for me” after they heard he was attending a wedding reception. He was also told that the police had come to arrest him, and that they had arrested his son and questioned him for 3 days in late 2004. The applicant was then in hiding until leaving Bangladesh in October 2005 to join his ship.
A delegate refused the application on 3 January 2006. The delegate thought that the applicant would not be subject to persecution by the BNP government if he returned to Bangladesh, and that he could continue involvement with the Awami League in his home city of Chittagong which was under its control, “without any negative repercussions as long as he does not break the law”.
On appeal, the applicant continued to be represented by Ms Stotz. Two decisions of the Tribunal were set aside by orders of this court on 13 July 2006 and 31 July 2007. The present application for judicial review concerns a third decision affirming the delegate’s decision, handed down on 17 January 2008 by the Tribunal constituted by Mr Giles Short.
I have power to set aside that decision only if I am satisfied that it was affected by jurisdictional error. I do not have power to decide whether the applicant is a refugee, nor whether he should be granted a protection visa or any other permission to stay in Australia.
Mr Short took into account, as he was entitled to do, all the evidence previously given by the applicant to the Tribunal. This included his evidence to the two previous members of the Tribunal, given at hearings which he attended on 13 February 2006 and 3 October 2006. At those hearings, and at a hearing held by Mr Short on 2 November 2007, the applicant was accompanied by Ms Stotz and by “support persons”. He received the tape recordings of all of these hearings at, or shortly after, each hearing. As I shall indicate, he has tendered before me an incomplete transcript of the last hearing, and I have read this and listened to the full sound recording of that hearing.
Ms Stotz made written submissions to the Tribunal before it made each of its decisions, and also forwarded general information concerning Bangladesh and some documents which the applicant presented as corroboration of his claims. There were two s.424A letters sent to the applicant, including a very detailed invitation to comment on various concerns, which was sent after Mr Short’s hearing. No issue is now taken with the adequacy of this letter, and it is clear that all of the matters which Mr Short addressed in his reasons were clearly put to the applicant in the letter, and that he had full opportunities to respond to them. Most, if not all, of them had also been raised in the course of Mr Short’s hearing.
In a very detailed statement of reasons, Mr Short identified a series of points which explained his general conclusion that “there are good reasons for doubting that the applicant is telling the truth about his claimed involvement in the Awami League and the persecution he claims to fear for reasons of his political opinion if he returns to Bangladesh”. These were:
i)The applicant had first claimed to have become involved in political activities by joining the Awami League student “Chhatra League” in 1977 after finishing his Secondary School Certificate. However, he had later claimed that he had joined that organisation in earlier years, and had joined the Awami League itself in 1977.
ii)The applicant had given inconsistent descriptions of an official position he claimed to have held in the Awami League, and whether he took up that position in 1982, or in 1998 or 1999, and whether he held it only for three years until 1985, or until he came to Australia in 2005.
iii)The applicant had given inconsistent evidence as to the year or years when false allegations of murder where made against him.
iv)The applicant had not applied for refugee status when his ship went to Europe after 2002, but had returned to Bangladesh in January 2004, and this cast doubt on his claims, in particular that the police had been looking for him since 2002. It cast doubt also on whether he genuinely feared that he would be persecuted for a Convention reason if he returned to Bangladesh.
v)The applicant had given inconsistent evidence as to when, during 2004, the BNP had known of his return to Bangladesh, and the duration of his son’s claimed detention by police in November 2004.
vi)A purported police “general diary” record of a complaint by the applicant’s wife in March 2004 complained of threats to kill the applicant, but did not mention a bomb attack on his home which he claimed had occurred shortly before that time.
vii)The applicant gave evidence at the 13 February 2006 hearing that his son could not return home at that time and was in hiding, because the police were looking for him. However, at the hearing in October 2006, he claimed that his son had been kidnapped in February 2006, and that he had told this to Ms Stotz before the earlier hearing. There was no record of this, and in a letter to the Tribunal received by the Tribunal on the day of the hearing on 13 February 2006, she had said only that “[the applicant] is extremely distressed and anxious because of bad news he received a few days ago from his country regarding his son” (see CB 195). Mr Short thought that the inconsistencies in the applicant’s claims about his son’s situation in February 2006 cast doubt on those claims.
viii)The applicant’s passport contained a visa to travel to the USA granted on 11 April 2005 and valid until 14 September 2006, but he had not used this to apply for refugee status in the USA. This cast doubt on whether he was living in hiding and in fear of being persecuted in Bangladesh at the time when the USA visa was issued.
ix)When interviewed twice after being taken into immigration detention in December 2005, the applicant made no mention of a claimed fear of returning to Bangladesh because of his involvement in the Awami League and the bringing of false charges against him. Mr Short did not accept that the applicant did not know that he could apply for protection in Australia, nor his claim that he feared that he would be put in gaol and tortured in Australia if he mentioned these things.
x)A purported “warrant of arrest” submitted by the applicant had patent defects in its stamps, and was not accepted as a genuine document. Having regard to the availability of forged or fraudulently obtained documents in Bangladesh, Mr Short did not accept that the corroboration afforded by the applicant’s other documents outweighed the general credibility problems arising from his own evidence.
xi)Evidence from two witnesses did not provide corroboration for the applicant’s evidence in relation to his involvement in the Awami League in Bangladesh, nor cause Mr Short to believe the applicant.
Having regard to Mr Short’s general adverse opinion of the applicant’s credibility, he did not accept the applicant’s claimed involvement in the Awami League or the Chhatra League, nor the claimed persecution of him and his family. Mr Short therefore did not accept that there was a real chance that the applicant would have any involvement in political activity if he returned to Bangladesh, nor that he would be persecuted for reasons of real or imputed political opinion. Mr Short concluded that the applicant did not have a well‑founded fear of being persecuted for one or more of the five Convention reasons if he returned to Bangladesh.
The application to this Court was listed at a first court date on 4 March 2008. The applicant attended, and had the assistance of a Bengali interpreter. I made orders, which I explained to the applicant, giving him an opportunity to file an amended application and evidence by way of affidavits before 2 May 2008, after receiving the Court Book documents. The applicant was also given a referral for free legal advice, and received advice on 20 May 2008. He was given a written copy of my orders. In my orders, I appointed a final hearing on 9 July 2008.
The listing report for the first court date indicates that an Australian helper was also in attendance, but it is unclear who this was. Ms Petersen, who had previously accompanied the applicant to the hearing before Mr Short, was assisting the applicant at a directions hearing before me on 1 July 2008, when I confirmed my earlier directions. She also assisted him, and made submissions on his behalf, at the final hearing. I consider that the applicant and his helpers were given more than enough time properly to identify his arguments and to prepare and properly present the evidence he intended to rely upon at the hearing.
However, the applicant did not file any amended application, nor any written submission or argument, and, belatedly, indicated reliance only upon an incomplete transcript of the hearing conducted by Mr Short. Ms Petersen, in her submissions on the applicant’s behalf, revealed no comprehension of my previous directions and the need for evidence to be properly foreshadowed to the Minister’s representatives. She made unfocused allegations about Mr Short’s hearing, and, when pressed for evidence, requested that I should listen to the full sound recording. I reluctantly agreed to do so, and have spent many hours comparing the recording with the partial transcript, and gaining an impression of the fairness of the hearing. I have also considered the points made by the applicant in a written submission addressing the issue of apprehended bias, which I allowed to be filed after the hearing. As I shall indicate, this exercise has persuaded me that the hearing afforded to the applicant by Mr Short fairly gave him a full opportunity to address all issues in the matter, and that it was conducted in a manner which would have left no doubt in the mind of a fair‑minded lay observer that Mr Short was striving to give genuine and thorough consideration to the truth of the applicant’s refugee claims.
The application to this Court claims that there was a denial of procedural fairness or other jurisdictional error, because:
i)The Tribunal failed to take into consideration the applicant’s psychological state as disclosed in a report of Dr Tyagi Ph.D on letterhead of “Transcultural Mental Health Centre” dated 30 September 2007, which had been presented in support of an adjournment of a hearing originally appointed for 10 October 2007. In this report, Dr Tyagi opined that the applicant was suffering from reactive depression with anxiety features, but thought that improvement in his mental state would occur in the next 2‑3 weeks.
ii)The Tribunal failed to take into account and implement the requests of Ms Stotz in a pre‑hearing submission dated 1 November 2007 that it should put in place a list of strategies to assist the applicant at the hearing, including by framing its questions simply, giving the applicant free access to documents upon which he was questioned, and providing written transcripts of his previous evidence.
iii)In the course of the hearing, the Tribunal did not provide a copy of transcripts of previous hearings nor play relevant parts of the tapes to the applicant, before questioning him about inconsistencies in his evidence. No particular instances of unfair questioning about his earlier evidence are identified.
iv)In the course of the hearing, the Tribunal “did not provide me with a clarified question nor an opportunity to make further comments before he made his final decision”. No particular instances of this defect are identified.
v)Concerning “the issue of my son”, the Tribunal “should have, but did not, provide me with the opportunity to fully discuss this important issue. He did not treat it as a credibility issue”.
In my opinion, none of these criticisms has been shown to have substance.
The Tribunal undoubtedly read and took into account Dr Tyagi’s report. It postponed the hearing for the period requested, until 2 November 2007. No further adjournment was requested, and no evidence was presented to show an incapacity to participate normally in that hearing. The Tribunal noted the report and Ms Stotz’s covering submissions in its statement of reasons at CB 542, and again at CB 552. It gave the applicant ample opportunity to address matters of concern both during the hearing and by way of written response to a written invitation for comments.
In particular, the Tribunal’s concerns about the applicant’s evidence concerning his son were clearly identified and put to the applicant during the hearing, and in its subsequent written invitation for comments (see CB 506‑507). The letter identified credibility issues in relation to this evidence, and foreshadowed the possibility of the Tribunal arriving at the conclusions on credibility which, taking into account the applicant’s responses, it ultimately reached.
I did not detect when listening to the sound recording of the hearing any significant or continuing difficulties by the applicant in understanding or responding to questions. All of Mr Short’s questions to the applicant were framed slowly, quietly, and with precision. The intervention of the interpreter resulted in the applicant having ample opportunity to understand, consider, and respond to questions, without being rushed. Where his responses suggested that questions might have not been fully understood, the questions were repeated by Mr Short in simple language. The applicant expressed no general difficulties in understanding the questions, nor with the interpreter, and sometimes responded quickly in English. At the end of his evidence, Ms Stotz was invited to identify further questions to be addressed to the applicant.
From listening to the sound recording, I formed a clear impression that it was open to the Tribunal to have regarded some of the applicant’s responses to matters which were fairly put to him as reflecting upon the truth of his claimed history. I was unable to identify any matter unfairly put to the applicant in Mr Short’s questioning.
Mr Short appears on the sound recording to have been meticulous in framing his questions about the applicant’s past statements clearly, and in taking the applicant to relevant parts of documents upon which he wished to question the applicant.
As is usual, the Tribunal did not have, and could not provide, a written transcript of the previous hearings. Nor did it play to the applicant the relevant parts of the tapes of the earlier hearings, when questioning him about some aspects of his earlier evidence. However, in my opinion, there was no requirement of the Migration Act, including by implication of s.425, that it should do either of these things.
As Mr Short pointed out to Ms Stotz in an exchange which I shall consider further below, the Tribunal did not have transcripts of previous hearings, and he relied upon his own notes from listening to the tapes and on the previous members’ descriptions of their hearings in their published statements of reasons. The applicant’s previous evidence which was put to him had been noted in the previous decisions, and the points raised by Mr Short about it should have been unsurprising. Ms Stotz and the applicant had the tapes of the earlier hearings, and could have refreshed their memories of his previous evidence on critical issues, when preparing for the hearing. The applicant was given the opportunity during the hearing to challenge Mr Short’s recollections from his listening to those tapes, and was also given that opportunity after the hearing when the relevant earlier evidence was again put to him in writing. I did not identify any particular unfair questioning by Mr Short of the applicant about his earlier statements, and none was identified in the applicant’s submissions to me.
In short, in my opinion, Ms Stotz’s written submission to the Tribunal attempted to insist upon a procedure in relation to the questioning of the applicant about his past oral statements which is usually unnecessary for an administrative tribunal, and which would not have been required in cross‑examination in most adversarial proceedings. I am not persuaded that the Tribunal’s failure to comply with her requests for transcripts was unreasonable, nor that it led to any unfairness in the Tribunal’s procedures, nor that it was in breach of a requirement of the Migration Act.
In the course of the applicant’s submissions to me, which were amplified by Ms Petersen, a contention emerged, in effect, 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 conducted by Mr Short on 2 November 2007 and from his decision handed down on 17 January 2008. In particular, I was referred to two exchanges between Mr Short and Ms Stotz shown in the partial transcript tendered by the applicant, which caused me to agree to listen to the full recording of the hearing, and to allow both parties to make further written submissions.
The High Court has identified the appropriate test of apprehended bias in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 at [27]‑[32]. Their Honours held that the test of “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” was applicable to proceedings in the Tribunal, and suggested that, in view of its administrative and inquisitorial nature, the test might be formulated “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”.
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. Their Honours said:
[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 layperson 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.
The applicant’s written submission argued:
i)Mr Short “came to the hearing with a closed mind” because “he was only interested in determining that I was not a credible witness”.
ii)Throughout the hearing Mr Short “had extremely long pauses”, which “only added to my nervousness”.
iii)Mr Short was “very aggressive” in exchanges with Ms Stotz at one point of the hearing concerning the applicant’s evidence given at earlier hearings about the official position he held in the Awami League. He spoke to Ms Stotz “in a very rude, dismissive voice”. He “became distracted by his dislike of Ms Stotz, rather than focusing on my case itself”. The applicant was ignored, when Mr Short “shouted” at Ms Stotz and criticised her preparation for the hearing.
iv)At a later point, Mr Short “shouted” at the applicant when drawing his attention to a document to which he referred.
v)A lay person would have felt that Mr Short’s questioning of the applicant about the applicant’s knowledge of the Awami League’s official objectives and its flag was “unfair and intimidatory” because “the Member would have known that I only participated in Awami League politics at a village level”.
vi)At a later point, Mr Short again “began berating my representative”, and asked her questions “in a very menacing tone of voice”. It is unclear from the submission when this is said to have occurred, but on my listening to the sound recording I can only find a second exchange with Ms Stotz. This arose from her intervening when Mr Short put to the applicant that he had not claimed at the first Tribunal hearing in February 2006 that his son had recently been kidnapped.
vii)The applicant’s post‑hearing submission asserts that “[Mr Short] left his chair and proceeded towards Ms Stotz, shaking his forefinger at her. It appeared that he was going to strike her. My witnesses and I were very worried and frightened”. No affidavits from any of these persons had been filed before the hearing, to support this accusation, and I consider that it should be shortly dismissed as completely lacking any foundation in admissible evidence. I was unable to detect from listening to the sound recording any such incident occurring at any point. The accusation was not foreshadowed prior to the hearing, and the respondents were unable to respond to it. It should not have been made in the applicant’s post‑hearing submissions.
viii)Mr Short listened to the applicant’s two witnesses “but did not ask questions of them”, so that “it appeared that he was not really interested in what they had to say, or how their evidence was significant to my case”.
ix)The Tribunal did not take into account that the applicant came from a different social and cultural environment and might experience bewilderment and anxiety. Nor did it take into account that the applicant’s educational, social and cultural background might affect the manner in which he provided his evidence. These requirements were found in the Tribunal’s published guidelines on the assessment of credibility.
The attack on Mr Short for being interested in determining whether the applicant’s claimed history in Bangladesh could be accepted as true is, in my opinion, misconceived. I consider that in the present case Mr Short correctly identified in an exchange with Ms Stotz at the end of the hearing (not included in the tendered transcript), in his subsequent invitation for written comments, and in his ultimate statement of reasons, that the assessment of the applicant’s refugee status turned upon the applicant’s credibility. Certainly, it was open to him to approach his decision‑making task with issues of credibility at the forefront of his consideration.
In this situation, the fact that Mr Short sought at the hearing, and in arriving at his decision, to test the applicant’s credibility by addressing the consistency with which he had presented important elements in his evidence over the three hearings held by the Tribunal and in his written evidence, would not come as a surprise to a fair‑minded observer of the hearing or reader of the decision. Rather, in my opinion, it revealed no more than a genuine effort to perform a statutory decision‑making responsibility. Listening to the sound recording, I was impressed by Mr Short’s anxious effort to hear how the applicant responded to his concerns about points of difficulty in his previous evidence. This suggested to me that he still had an open mind about the applicant’s credibility during the hearing, not the converse.
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 that outcome. It shows no more than the performance of statutory duties. Nor, in my opinion, would it cause a fair‑minded observer to think that Mr Short prematurely closed his mind to considering the possibility that the applicant’s history might be true or, at least, that it might contain sufficient truth to allow a finding of a well‑founded fear of persecution in Bangladesh.
I have not found anything in Mr Short’s questioning of the applicant at the hearing, nor in the subsequent s.424A invitation for comments, nor in his ultimate statement of reasons, which persuades me that he prematurely closed his mind to a proper assessment of the applicant’s refugee claims. I do not consider that a fair‑minded lay observer might have formed any reasonable apprehension about this, taking into account the Tribunal’s usual inquisitorial procedures which are referred to by the High Court in Ex parte H.
In this context, I find it odd that Mr Short’s pauses when framing his questions to the applicant, and when reflecting upon the applicant’s responses, are suggested to show bias against the applicant or a closed mind. In my opinion, they show the contrary. Listening to the sound recording, I could find nothing in the manner in which he 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).
As I have indicated above, I consider that the Tribunal’s procedures when putting matters of concern to the applicant were completely fair, and were designed to give him the opportunities required under ss.424A and 425 of the Migration Act. It is possible that the applicant and Ms Petersen might have misunderstood that this procedure was intended to afford, rather than deny, procedural fairness. However, I do not consider that a fair‑minded observer who was properly informed about the Tribunal’s responsibilities and procedures might have had that concern.
Mr Short’s first exchange with Ms Stotz in the course of the hearing occurred when she objected to his putting to the applicant a clear inconsistency in his evidence given at an earlier hearing. She maintained that the applicant should first be given the relevant transcript or part of the tape, and be allowed an adjournment to consider how to respond. Mr Short expressed in firm language his belief that this was not a usual procedure for the Tribunal, and that it was not required by judicial authorities. He said: “I don’t think it unreasonable to ask someone about things they’ve said previously”, and indicated that he intended to continue to do so. Having listened to the sound recording of this passage, I did not find his tone, nor the content of his responses to Ms Stotz’s objection, inappropriate nor unfairly intimidating for Ms Stotz or the applicant. There is no evidence from Ms Stotz that she perceived it that way.
Mr Short then asked Ms Stotz whether she accepted that the applicant had said something at an earlier hearing, as noted by the member who had conducted that hearing. She said she was not sure, and Mr Short then strongly put to her that, if she had listened to the tapes – as she claimed to have done, she should know whether what was being put to the applicant as to his earlier evidence was correct or not. The point was significant and simple, since the applicant’s attention was being drawn to his earlier statements in which he had given both 1982 and 1998 or 1999 as the year when he assumed his claimed position of publicity secretary for his branch of the Awami League.
I do not accept that there was any behaviour by Mr Short towards Ms Stotz in the course of this exchange which should be characterised as “very aggressive”, nor as unreasonably “rude” or “dismissive”. The exchange between them was in English and was not translated to the applicant. There are points in it where Mr Short’s voice was raised briefly, and where he would have appeared strongly critical of her preparation for the hearing and ability to assist the Tribunal. In hindsight, some elements in the exchange might have appeared unnecessary and regrettable by both of them, as in similar exchanges between a judge and a legal representative. In my experience, such exchanges are not unknown, both in courts and administrative tribunals. A lay observer would normally appreciate that the criticisms are directed at the representative and not the client, and that the judge or decision‑maker will usually have the capacity to detach himself or herself from feelings of irritation with the representative.
A similar tone was never used in questions to the applicant, and Mr Short’s questioning of the applicant continued after this incident to be fairly and appropriately framed to test his responses to the inconsistencies detected by Mr Short. The tone of his questioning remained quiet, deliberate, and non‑intimidating.
The degree of irritation shown towards Ms Stotz would, in my opinion, have appeared to a fair‑minded observer to have indicated that Mr Short felt frustrated by her inability to assist him fairly to put matters to the applicant. It would not have caused the observer to apprehend that he had closed his mind to considering the applicant’s responses to the matters which were being put to him.
I do not accept that Mr Short’s concern about Ms Stotz’s competence as a migration agent became a distraction to Mr Short at this point, or any other point, such that it prevented him from properly conducting the hearing.
An alleged incident when Mr Short “shouted” at the applicant was not identified in the applicant’s submissions. When listening to the sound recording I was unable to identify any point in the hearing where it occurred, and I do not accept this allegation.
I could detect nothing unfair or intimidating in Mr Short’s questions directed at assessing the applicant’s knowledge of the Awami League. It is clear that the applicant was given a full opportunity to respond, including by explaining his ignorance about some elementary matters. It was open to the Tribunal not to accept his explanations as credible or complete answers to its concern. Listening to the sound recording, it seemed to me that the applicant’s responses to questions about the Awami League’s flag were unconvincing, and I consider that it was open to the Tribunal to take that view. No reasonable apprehension of bias could arise from this section of the hearing.
The second exchange between Mr Short and Ms Stotz occurred later in the hearing, after it was put to the applicant that he did not tell the Tribunal at the first hearing in February 2006 that his son had been kidnapped, but, rather, had said that he was in hiding from the police. The applicant then asserted that he had told Ms Stotz that his son had been kidnapped. Ms Stotz intervened by asserting that “certainly there is correspondence which I could find for the Member” in which she had informed the Tribunal, but she could not identify it. Mr Short responded by pointing out that her only letter at that time had not done so. Ms Stotz then said she was not able to comment on the matter without being able to listen to the tape, and said she was confused about her correspondence with the Tribunal. At this point, Mr Short became critical “about your professionalism as a migration agent”, because she was saying “that you can’t help me at all”, and “you do not seem to be in the position to assist the applicant in any way and yet you are his representative”.
The exchange ended when Mr Short quietly and clearly put to the applicant, through the interpreter, his concern that the claim that the son had been kidnapped had not been made to the Tribunal until its second hearing in October 2006. Ms Stotz requested:
Alright so will I be able OK so given that this is such a crucial issue would the Tribunal allow me to listen to the tapes again and look at all the correspondence that took place so that I can perhaps may be of assistance. If I did not raise that issue and I really need to check Mr [applicant] my understanding was it was raised at the hearing and so because that’s my understanding and we need to have time because my understanding is we did raise it at the hearing or in connection with the hearing in correspondence.
Mr Short agreed to a break, and the applicant, Ms Stotz, and his supporters left the room to confer. They returned some eight minutes later, and neither the Tribunal, the applicant nor Ms Stotz raised this topic again. They had ample opportunity to do so at that time, or at the end of the hearing when Ms Stotz was invited to indicate further matters to be raised with the applicant. The applicant himself was asked twice whether there was anything further which he wished to mention immediately before the hearing was closed.
After the hearing, the inconsistencies and delays in the applicant’s claims, including those about his son, were fairly put to the applicant in the Tribunal’s written invitation for comments. The applicant’s response to the invitation did not challenge what Mr Short had put to the applicant at the hearing, as to his and Ms Stotz’s statements to the Tribunal in February 2006. In my opinion, it is clear that none of his questions to the applicant at the hearing on this matter were falsely premised or otherwise unfair.
Mr Short’s tone of voice throughout this second exchange with Ms Stotz was even and quiet, although a note of controlled irritation with her can be detected. As with the first exchange which is criticised by the applicant, I do not consider that it shows him being distracted by concerns about her competence, nor that it would have caused a reasonable apprehension that he was not bringing an open mind to the consideration of the applicant’s evidence. I do not accept the suggestion that there was an inappropriate display of bad temper, nor any conduct reflecting on the fairness of the hearing at this point.
Although the applicant’s written submissions asserted that similar criticisms were made of Ms Stotz “throughout the hearing”, I could identify only the two passages which I have discussed, where Mr Short was critical of Ms Stotz’s representation of the applicant. His questioning of the applicant continued after the second exchange in an unexceptionable manner. He then received the evidence of the two witnesses, before receiving Ms Stotz’s oral submissions, and giving the applicant a final opportunity to address the Tribunal.
At no point during the hearing did Ms Stotz voice concern about Mr Short continuing to conduct the hearing or the review, and no request that Mr Short should disqualify himself was made at the hearing or subsequently. As I have indicated, there is no evidence before the Court showing Ms Stotz’s perceptions of the conduct of the hearing. In my opinion, the allegations of apprehended bias arising from Mr Short’s exchanges with Ms Stotz are not established on the evidence before me.
The contention that an apprehension of bias arises from the manner in which Mr Short received the evidence of the two witnesses has no substance. In fact, neither of them was able to give direct evidence supporting the credibility of the applicant’s refugee claims.
As the Tribunal elicited through appropriate questioning, the first witness had come to Australia in 1992, had no knowledge of the applicant’s involvement in politics in Bangladesh, and said: “I really didn’t talk about politics with him”.
The second witness, Ms Petersen, presented a written statement recounting her connections with Bangladesh, and then also was permitted to read it verbatim to the Tribunal. She was listened to patiently, and was also permitted to repeat points she wished to emphasise. Her evidence, and that of the other witness, was summarised in the Tribunal’s statement of reasons, and good reasons were given explaining why it did not persuade the Tribunal to accept the applicant’s credibility. Essentially, this submission criticises the Tribunal for not accepting Ms Petersen’s personal opinion that the applicant should be believed. However, it was not bound to do so, and a fair‑minded lay observer would not think that the fact that it arrived at a different conclusion provided any evidence of a closed mind.
The applicant’s submission which made reference to the Tribunal’s guidelines on the assessment of credibility does not persuade me to find that its proceedings in the present case are affected by an apprehension of bias. I can find no evidence that Mr Short’s questioning of the applicant, or his consideration of the applicant’s evidence in his decision, failed to appreciate the points made in the guidelines. Listening to the sound recording, I was impressed by the care with which Mr Short endeavoured fairly to raise his concerns with the applicant, and to ensure that they were properly understood by him. I have found no reason to conclude that Mr Short did not bring a proper appreciation of cultural and other factors to his consideration of the evidence bearing on the applicant’s credibility.
After carefully considering all the points made by the applicant and Ms Petersen, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 19 August 2008
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