SZKHL v Minister for Immigration
[2009] FMCA 356
•28 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 356 |
| MIGRATION – Review of RRT decision – where applicant claimed to have provided medical assistance to Falun Gong practitioners in China but not a practitioner herself – mischaracterisation of claim – whether the Tribunal incorrectly assumed the applicant was aligned with Falun Gong and ought to have associated with the movement in Australia – apprehended bias – where Tribunal said it did not believe the applicant – whether Tribunal had closed its mind against consideration of further probative evidence – expression of preliminary views considered. |
| NABE v Minister for Immigration (No 2) [2004] FCAFC 263 Htun v Minister for Immigration [2001] FCA 1802 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 SZMIA v Minister for Immigration [2008] FCA 1909 Refugee Review Tribunal; Ex Parte H [2001] HCA 28 Minister for Immigration v MZXPA [2008] FCA 185 VFAB v Minister for Immigration [2003] FCA 872 Minister for Immigration v Jia [2001] HCA 17 Minister for Immigration v SZGMF [2006] FCAFC 138 SZDFZ v Minister for Immigration [2008] FCA 390 |
| Applicant: | SZKHL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1513 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 April 2009 |
| Date of Last Submission: | 20 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari directed to the Second Respondent removing into this Court to be quashed the decision made by it on 29 April 2008.
A writ of mandamus directed to the Second Respondent to rehear and determine the Applicant’s application for review according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1513 of 2008
| SZKHL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 29 September 2006. On 6 October 2006 she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 10 November 2006 a delegate of the Minister refused to grant a protection visa and the applicant sought review from the Refugee Review Tribunal. On 26 January 2007 a first Tribunal affirmed the delegate’s decision but that affirmation was quashed by the Federal Magistrates Court on 16 November 2007 and the matter was remitted to be heard according to law by a second Tribunal. The second Tribunal interviewed the applicant and on 29 April 2008 determined to uphold the decision not to grant a protection visa. It handed that decision down on 15 May 2008.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are found in a series of statutory declarations, the first commences at [CB 30], the second at [CB 104] and the third at [CB 121]. The substance of those statutory declarations are not substantially dissimilar. They tell how the applicant, having been cured of an eye complaint in her youth by acupuncture determined to study that discipline and did so, finally qualifying in Chinese medicine and practising at a Beijing hospital as a doctor. She told how on a day that appears to be unspecified, but from the context appears to be either late 2005 or early 2006, she was about to treat a patient in the hospital suffering from lumbar disc herniation. She obtained the patient’s records and was asking her what her occupation was. The patient responded that she no longer had an occupation because she had been dismissed from her employment as she was a Falun Gong practitioner. It appears that this conversation was overheard by the applicant’s supervisor who told her that she could not give any treatment to the patient. The applicant was most concerned about this because she believed that every citizen was entitled to medical treatment and so she provided treatment to the patient in her home. The applicant claimed she had treated other Falun Gong practitioners and that she became so concerned about the failure to provide them with medical treatment that she wrote several letters to the government:
“As a doctor I cannot put the patients aside, looking after the patients is my responsibility. The government should respect their human rights and give them freedom. They need a normal life. We are human beings and also they are human beings, they have the same rights to see a doctor as us. The government said that is the anti-government argument and they also said we are complicity.” [CB 33]
The applicant claims that she was detained for 72 hours without reason and her employer was told to dismiss her. After her dismissal she attended a Falun Gong adherents meeting place every day. She claimed the government got wind of this and she was detained again for a period of a month during which time she was very badly treated. She said that her husband obtained a passport for her in May 2006, just prior to her second detention. After the second detention she determined to utilise it in order to come to Australia as her problems were very serious and impacting on her husband and child.
In her third statutory declaration the applicant said:
“I was arrested again in early July 2006 and this time I was clearly told that the detention was for the reason that I insisted on providing medical treatment and medical help to those Falun Gong practitioners every day. I was alleged to disobey their instructions but actually when I was detained for the first time I was only warned not to write to those government agencies again. However, the police did not listen to my explanation.”
At no time did the applicant claim to be a Falun Gong practitioner. Her grounds for assisting the Falun Gong practitioners was that she believed that every person had the right to medical treatment.
The Tribunal decision commences at [CB 130]. At [35] and [36] the Tribunal deals with the applicant’s actions in Australia:
“[35] The Tribunal asked the applicant if she had contact with the Falun Gong associations in Australia since her arrival a year ago. The applicant stated that she has no contact with any Falun Gong association in Australia. The Tribunal asked the applicant why this was the case. The applicant stated that she is a Buddhist and not Falun Gong practitioner and she does not participate in the activities of Falun Gong.
[36] She stated that she is afraid to have any association with Falun Gong. She stated that she is afraid because there are Chinese government spies in Australia who could monitor her activities. The Tribunal asked the applicant whether she participated in any activities such as demonstration or distributing leaflets about the Chinese government’s treatment of Falun Gong practitioners. The applicant stated that she did not participate in any public demonstrations, distribution of leaflets or any such activities in Australia. She stated that she is afraid to participate in such activities as spies here would take photos of her and that this could result in harm to her husband and son back in China.
[37] The Tribunal asked the applicant whether she had approached the Falun Gong Association here in Australia privately to tell them about her experiences and her knowledge of the treatment of Falun Gong practitioners in China. The applicant stated she was afraid to do this. She stated that she was just intending to tell the Tribunal.”
These matters were taken up again at [47 – 49]:
“[47]The Tribunal asked the applicant what she thought would happen to her if she was to go back to China. The applicant stated that she would be persecuted because of her previous record, that is, because she had already been arrested twice, she feared that she would be re-arrested. She stated that she now has a police record for anti-government activity and therefore she was afraid that she would be arrested.”
[48]The Tribunal raised with the applicant the following issues. The Tribunal put to the applicant that it seemed rather unusual that she would engage in the activities she claims to have engaged in China but on arrival in Australia she did not continue with any of these activities either by way of approaching the Falun Gong Association or participating in demonstrations, leaflet distribution etc exposing the Chinese government’s treatment of Falun Gong practitioners. The Tribunal noted that the Falun Gong Association documents the mistreatment of Falun Gong practitioners and engage in activities such as taking petitions to the United Nations to try and pressurise the Chinese government to desist.
[49]The Tribunal put to the applicant that it seemed rather unusual that she would be prepared to engage in the activities she claims to have engaged in China but does not do so in Australia. The applicant responded that she did not engage herself in such activities in Australia because she was fearful of spies.”
At [51] [CB 136] the Tribunal discussed with the applicant the obtaining of her passports.
“[51] The Tribunal noted that the applicant must have, on her own account, had concerns earlier than her detention in May 2006. The Tribunal noted that the applicant in her statement states that her husband had already organised a passport for her at the beginning of May 2006 because he was already concerned for her safety. The Tribunal put to the applicant given that she had already acquired a passport in May 2006 because she believed that she was no longer safe, but she continued to assist Falun Gong practitioners even after detention. Thus is seemed incongruent that she was now saying that she did not have anything to do with Falun Gong here in Australia out of fear that spies might contact or know about her.” [emphasis added]
The Tribunal concluded the hearing with the following statement:
“[52]The Tribunal put to the applicant, that the Tribunal did not believe the applicant’s claims and did not consider that she had engaged in the activities she so claimed to assist Falun Gong.”
The Tribunal’s Findings and Reasons commence at [55] [CB 136]. The Tribunal did not accept that the applicant engaged in activities in support of Falun Gong either by writing letters or providing medical treatment. It found that the applicant’s claims lacked credibility and then proceeded to give reasons for that finding:
“[59]The Tribunal found the applicant’s evidence about her motivation for her claimed activities to be unpersuasive. As set out above, the applicant indicated that she is not a follower of Falun Gong but she engaged in her claimed letter writing campaign on behalf of Falun Gong and provided free medical treatment to Falun Gong practitioners because of her longstanding commitment to human rights and her belief that medical treatment should be equally available to all.
[60]In her oral evidence to the Tribunal the applicant indicated that prior to her claimed letter writing in February 2006 she had not at any time written to or complained to any government organisation about human rights abuses in China. More importantly since her arrival in Australia she has not pursued in any manner her advocacy for human rights of Falun Gong practitioners.
[61]When it was put to the applicant at the hearing that given her claimed commitment to human rights it seemed unusual that she had not on any previous occasion engaged in any advocacy about human rights, the applicant initially stated that she considered that the Chinese government had a good track record and that it was not until she encountered Falun Gong practitioners that she felt the need to take action such as writing to the authorities. When pressed about this, the applicant then claimed that she had always provided free medical treatment to various persons and felt that although the Chinese government was in the past generally good there was room for improvement.
[62]The Tribunal considers the marked contrast between the applicant’s claimed behaviour in China with her behaviour in Australia to belie her claim to have advocated on behalf of Falun Gong followers. That is, that when in China she writes letters to various government bodies criticising their treatment of Falun Gong followers and act contrary to government policy despite warnings about this and a detention. When in Australia she avoids any protest action or even private contact with Falun Gong claiming that she fears Chinese spies in Australia may note her actions and that ramifications may flow for her husband and child back in China.
[63]The Tribunal considers that applicant’s claimed willingness to engage in the activities she claims she did in China with the associated risks to be incongruent with her caution and care in Australia.
[64]Considered collectively, the points set out above, lead the Tribunal to reject the applicant’s claim that she engaged in letter writing on behalf of Falun Gong or that she assisted Falun Gong practitioners as she so claims.”
It is this reasoning which has led the applicant to claim that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. In an Amended Application filed on 1 February 2009 the applicant’s grounds were stated to be:
“1.The Tribunal failed to review the delegate’s decision as required by s 414 Migration Act
Particulars
(a)The Tribunal failed to assess the Applicant’s claimed fear of persecution on the basis of the claims that she actually made.
Further Particulars
(i) It incorrectly assumed that she was aligned with Falun Gong, such that she would engage in protests with Falun Gong practitioners.
(ii) It suggested, incorrectly, that the Applicant had obtained a passport for herself in May 2006 because she was concerned for her safety, whereas the evidence was that it was her husband who obtained the passport for her because he was concerned for her safety.
(iii) It acted upon the premise that the Applicant had “a longstanding commitment to human rights” whereas she had a longstanding commitment, not to human rights in general, but to the principle that medical treatment should be available to all.
(iv) It failed to consider the Applicant’s claim that she had come to be in fear of persecution only after her second detention.
2.There is a reasonable apprehension that the Tribunal prejudged the Applicant’s credit.
Particulars
(a)The Tribunal records itself as stating, before the conclusion of the hearing, and before final submissions had been made and evidence given, that it did not believe the Applicant.”
Before dealing with the law in relation to these matters I should set out my findings as to whether the allegations made are correct.
The Tribunal incorrectly assumed that the applicant was aligned with Falun Gong
Although the Tribunal acknowledges that the applicant is not a follower of Falun Gong the impression obtained from a reading of the whole of the decision is that it expected that a person who had acted in the manner the applicant had would have a natural inclination to continue an association with Falun Gong practitioners upon her arrival in Australia. So strong was that presumption that it is the incongruity of her not doing so that forms the basis for the Tribunal’s findings on credibility. It is most unfortunate that the Court was not provided with a transcript of what occurred at the Tribunal hearing because the manner in which the applicant’s responses are recorded could as easily be referable to continuing questioning by the Tribunal as to the voluntary provision of extra information in relation to her reasoning. The important point is that she commences her reasons for not associating with Falun Gong in this country by reiterating that she was not a Falun Gong practitioner. It is only thereafter that there appears the information that she was concerned about spies in the Chinese community in Australia. Even if that information was provided voluntarily and not as the result of further questioning from the Tribunal, which might have led an applicant to believe that she was required to continue to say more when her first answer would otherwise have been sufficient, I am unable to see what the incongruity is. It seems to me that in total there is a very good explanation for why the applicant is not associating with Falun Gong practitioners in Australia. The only basis upon which the applicant might have associated with Falun Gong practitioners in Australia is if she was sympathetic to their cause. She has never claimed to be sympathetic to their cause. She has only claimed that they have the same basic human rights as other people, particularly the basic human right to be provided with medical assistance. I am of the view that the manner in which the Tribunal has expressed itself in these paragraphs would seem to indicate that it has misconstrued the applicant’s claims.
The incorrect passport suggestion
The gravamen of [51] of [CB 136] is that the applicant was making plans to leave the country before she suffered the second detention although she says that it was the persecution of the second detention that caused her to wish to leave. This redounds against her credibility. In fact, as noted by the Tribunal, the applicant said that it was her husband who had organised the passport because he believed that there were concerns for her safety. What the Tribunal put to the applicant as recorded in that paragraph was therefore incorrect and it is of concern because it formed the basis for an adverse credibility finding.
The Tribunal acted on the premise that the applicant had a long standing commitment to human rights
The applicant argues that her commitment to human rights as articulated in the three statutory declarations and her evidence appearing was a commitment to the human right that all persons should be entitled to receive medical treatment. I am not as sanguine about this submission as I was about the two previous ones. I think that the way in which the applicant has expressed herself in her statutory declarations e.g. [12] [CB 106] could justify the Tribunal’s remarks about her commitment to human rights although whether it constitutes “a long standing commitment” must be open to doubt. If there was a long standing commitment of any sort it was a long standing commitment to the provision of medical services for all.
The Tribunal failed to consider the applicant’s claim that she had come to fear persecution only after her second detention
This ground appears to be put forward because the Tribunal mistakenly associated the applicant’s husband’s obtaining of a passport for her with her own fears. I have accepted that the Tribunal appears to have misconstrued the evidence but I think that its effect upon the decision is as related in [11] of these reasons.
The Tribunal’s statement that it did not believe the applicant
The Respondent does not deny that this statement was made. It suggests that it was indicative only of a preliminary conclusion at the time it was made. The Respondent points out that the Tribunal offered the applicant an opportunity to make further representations notwithstanding the views expressed.
The result of this analysis is that I believe that as a matter of fact the applicant could make the arguments contained in (i) and (ii) of the first ground of the application and that it can make the argument contained in ground 2. I now turn to whether these objections constitute jurisdictional error on the part of the Tribunal.
Discussion
All parties agree that the substantive authority to be considered in this case is that of NABE v Minister for Immigration (No 2) [2004] FCAFC 263 but it as well to recall the views expressed by the Full Bench, Spender, Merkel and Allsop JJ in Htun v Minister for Immigration [2001] FCA 1802 where at [42] Allsop J said:
“The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend[1986] HCA 40; (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs[1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.”
The High Court accepted that the Tribunal had an obligation to deal with the claims made by an applicant and that the failure to do so was a failure to exercise jurisdiction in Dranichnikov v Minister for Immigration (2003) 197 ALR 389. In NABE, the Full Bench Black CJ, French and Selway considered, under the heading “Error of Fact and Jurisdictional Error in the Refugee Review Tribunal” the difference between making an error of fact and failing to deal with a claim because of an error of fact. At [63] it said:
“It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.”
I have found that the Tribunal did misconstrue the applicant’s claims in the two areas referred to in the Amended Application 1(i) and 1(ii). It seems to me that the error of the Tribunal in misunderstanding the applicant’s evidence in relation to her passport is not a failure to consider a claim to a protection visa. A misunderstanding of the evidence, whilst mistaken, went to her credibility not her claims. The mistaken finding of fact was used to bolster the Tribunal’s opinion that the applicant’s failure to associate with Falun Gong practitioners in Australia was incongruent to her claims. It is therefore best treated as part of the substantive allegation in 1(i).
I am satisfied that even though the Tribunal indicated at [59] [CB 137] that the applicant did not claim to be a follower of Falun Gong its reasoning process proceeded upon the basis that she had such an affinity with the adherents that she would naturally gravitate to them upon her arrival in this country. That was never her claim and whilst there is no evidence that the remarks which she made about her fear of associating with those people because of spies in their midst was the result of continued questioning from the Tribunal there is equally no evidence that it was not. On that basis one can take a neutral view of those comments and look at what the applicant said in her original documents which was that she was not a Falun Gong practitioner, she was a Buddhist and thus not a person who had any propensity to associate with Falun Gong adherents. To consider the claim on the basis that the Tribunal did was not to consider the claims made by the applicant but some other claim which appears to have been constituted in the mind of the Tribunal. Rares J more elegantly put the point in SZMIA v Minister for Immigration [2008] FCA 1909 when he said at [33]:
“[33] I am of opinion that in the consideration of an applicant’s application for review it is essential for the tribunal first, to identify what the applicant has claimed when seeking a protection visa. Mischaracterisation of a claim is not a mere error of fact. It is a failure to identify that which the applicant for review is putting forward as the basis upon which he sought a protection visa.”
And:
[38]Indeed, the delegate had no problem in identifying that claim as being one of the issues for review: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163 [35]. The delegate was correct to have done so. And the delegate’s identification of that issue for review emphasised the error of characterization which the tribunal made. That error of characterisation had a substantive effect on the way in which the tribunal proceeded to assess the claim. The tribunal either took into account an irrelevant consideration, by considering a claim that was not made, (namely that the appellant had not put forward a claim based on his anti-government activities in the period from March 2007 to 21 July 2007) or it failed to consider a relevant consideration (being the claim he had made).
This Tribunal’s mischaracterisation is to my mind a jurisdictional error for which relief should be granted.
The apprehended bias claim
The applicant argues that the Tribunal by its own account told the applicant that it did not believe her claims and did not consider that she had engaged in the activities which gave rise to them. This was done prior to the completion of the determinative processes and would therefore raise in the minds of the hypothetical fair minded lay person properly informed as to the nature of the proceedings an apprehension of bias; Refugee Review Tribunal; Ex Parte H [2001] HCA 28 at [28]. The question before me is how such a fair minded lay observer would see the remark. If the remark was seen as the expression of a preliminary view it is unlikely that it would be considered in law to amount to bias. In Minister for Immigration v MZXPA [2008] FCA 185 Sundberg J at [13] said:
“The hypothetical fair-minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant…
Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [23] and SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 965 at [15]- [16].
Both of the cases cited by Sunberg J contained comments on the expression of preliminary views in relation to actual rather that apprehended bias. In VFAB v Minister for Immigration [2003] FCA 872, Kenny J at [23] noted Minister for Immigration v Jia [2001] HCA 17 as authority for the principle that actual bias is not made out simply by showing that a decision-maker reached a preliminary view, even on a critical matter. It appears that Sunberg J has treated these authorities as applying equally to claims of apprehended bias. He continued:
“[14] An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister forImmigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]- [18]. The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [30].
Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view.”
In the instant case the Tribunal expressed its view and the applicant requested a further hearing. The Tribunal declined a further hearing but allowed further representations to be made. A similar scenario was considered in Minister for Immigration v SZGMF [2006] FCAFC 138 where at [21] the Full Bench Branson, Finn and Bennett JJ said:
“…there is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate’s decision. What is critical is that the member not close his or her mind against any additional material that might possibly prove probative. In our view there is no reason to think in this case that the Tribunal member, after the first hearing, had closed his mind against additional material that might possibly prove probative.”
In that case a request for further time to make comments was made; at [24] the Court said:
“His Honour considered the paragraph ‘indicative of a strong view held by the presiding member at the time the extension of time was sought that the false cases claim was false’. Having regard to the advice from the Australian High Commission in Dhaka that the documents said to support the respondent’s false cases claim were not genuine, we do not consider that the Tribunal is to be criticised for forming a strong view that the false cases claim was itself false – provided that it remained open to persuasion that it should modify or alter its view. Indeed, the Federal Magistrate himself observed that ‘[t]here can be little quarrel with the proposition that the second report from DFAT about the court documents seriously undermined the [respondent’s] credibility.’ We see no reason to conclude that the Tribunal had closed its mind against consideration of any further probative material that the respondent might have placed before it.”
Returning to the instant case, it seems to me that if the Tribunal’s expression of disbelief was a preliminary view, the fact that the applicant had a further opportunity to present submissions would indicate to the fair minded lay observer that the Tribunal did not at that stage have a mind not open to persuasion. I think it more likely, however, that a fair minded lay observer would take the view that the Tribunal, having heard all the evidence and considered the papers, had expressed its view on all the issues. In other words that at that stage (before the offer of the additional submissions was made) the Tribunal had reached a conclusion. There is no prohibition upon a Tribunal reaching a conclusion at the end of a hearing or even of giving a decision at the end of a hearing. If the Tribunal had done that there could be no objection made. Does the fact that the Tribunal then grants the applicant a further indulgence bring into play the possibility of apprehended bias because of what has just previously been said? In the absence of a transcript there is no reason to assume that the offer was not genuinely made. The decision record indicates that the representations were considered even if they were not accepted. The mere fact of an unsatisfactory decision from the point of view of an applicant does not constitute apprehended bias; SZDFZ v Minister for Immigration [2008] FCA 390 at [40]. I am unable to find for the applicant in this regard.
In the light of the finding which I have made I shall grant the constitutional writs sought and order that the First Respondent pay the Applicant’s costs which I assess in the sum of $5,000.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 28 April 2009
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