SZLMW v Minister for Immigration
[2008] FMCA 1402
•2 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1402 |
| MIGRATION – Review of RRT decision – matter referred for pro bono assistance – no appearance by applicant – whether Tribunal misunderstood its duties – whether apprehended bias. |
| SZLGP v Minister for Immigration [2008] FCA 1198 WADE of 2001 v Minister for Immigration [2002] FCAFC 214 SAAK v Minister for Immigration [2002] FCA 367 Guo Wei Rong v Minister for Immigration (1996) 135 ALR 421 Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 v Minister for Immigration [2004] FCAFC 328 |
| Applicant: | SZLMW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3222 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 October 2008 |
| Date of Last Submission: | 2 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2008 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed pursuant to Part 13 rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3222 of 2007
| SZLMW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This matter first came on before me for hearing on 27 June 2008. At the time, I was so concerned about the manner in which the Tribunal appeared to have reached its decision that I recommended the applicant for pro bono legal assistance. In accordance with this court's usual practice when offering legal assistance, it is explained to the applicant what is involved and, in particular, his obligation to communicate with the chosen legal practitioner once that legal practitioner has indicated that he will accept the reference. In this particular case, a reference was made on 27 June 2008 and shortly thereafter, the solicitor involved informed the court, through my associate, that he would be prepared to take the matter on. After some time, the court was informed that the applicant had not contacted the solicitor and a letter was sent by my associate to the applicant asking him to contact the solicitor as soon as possible, on 27 August 2008. It would seem that the applicant did not respond. In those circumstances, on 23 September 2008 the court wrote again to the applicant, informing him the matter would be restored for hearing today but that if he wished he could still contact the solicitor who had indicated his willingness to be of assistance.
At 10.15am today the applicant was not in attendance. Neither was he in attendance at 10.30am when his name was called outside the court, and the Minister seeks that I dismiss the matter pursuant to Part 13 r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
Although I think that administratively it is best that I do dismiss the matter, I think I should make it quite clear that I retain some serious doubts about the manner in which the Tribunal reached its decision in this case and would, subject to anything that Ms McWilliam might have told me, have found against the Minister. The grounds upon which I believe that the Tribunal fell into jurisdictional error have only come to me as a result of seeing the transcript of the Tribunal hearing which the Minister himself provided to me in an affidavit of Juliet Hoad dated 2 July 2008.
The matters about which I have concern are these. Firstly, the Tribunal says to the applicant at the beginning of the hearing the following:
“Now that means that it is very important that I be convinced that you are entitled to a protection visa. I can only make a decision on the basis of the information that you present to me plus any other information I have access to. It is very important that anything - that I have confidence in anything you say to me. In other words that I am sure that everything you say to me is true. Because if I lose confidence in what you’re telling then that will affect everything that you are trying to persuade me to accept.”
Whilst I am sensible of the fact that the use of the word “convince” in relation to an application may not indicate that the Tribunal has misunderstood its duties (see: SZLGP v Minister for Immigration [2008] FCA 1198; WADE of 2001 v Ministerfor Immigration [2002] FCAFC 214) the use of the words by the Tribunal in this case that it “had to be sure that everything the applicant said to it was true” seems to me to go against the views expressed by Hathaway and articulated by the Full Bench (North, Goldberg and Healy JJ) in SAAK v Minister for Immigration [2002] FCA 367; Guo Wei Rong v Ministerfor Immigration (1996) 135 ALR 421 where quoting from Guo (supra) at 460, his Honour Foster J said:
“In my view, a proper application of the definition does not require that all applicants be, as it were, pinned irrevocably to the establishment in toto of all allegations made in support of their claims. Although resort to exaggeration or even fabrication is distinctly unwise, the findings of either cannot necessarily mean that the claim is doomed. There must always remain the possibility that, notwithstanding such blemishes, there is nevertheless a significant basis of truth in the material which can establish a real chance of persecution. The procedure is inquisitorial, not adversarial. It is not a matter of the applicant making out a case; rather, the interrogator should seek to ascertain the truth.”
That is the first point.
The Tribunal then goes on to question the applicant about the company which employed him. The company was a media company, and he was employed as an editor. The Tribunal says [T3]-[T4]:
T: Where is your company based?
A: 12304 North Tower.
T: No, I don't need the full address, in which city is it?
A: In Guan Xo.
T: In Guan Xo. In any other city?
A: No, no other cities.
TM:Okay. Now do you remember, at the beginning I said to you that it was very important that everything you tell me be absolutely true. Now are you telling me that everything you have just told me is absolutely true?
A: Yes. All is true.
TM:Okay. Well if I tell you that the Australian Consulate in Guan Xo has talked to Mr Hu Bin and most of what you have told me is not true would you like to change what you are now telling me?
A: No.
TM: You don't want to change anything?
A: No.
TM:Well then I will have to tell you that I don't believe what you've just told me.
A: Then sorry. I have no other ways.
TM:I mean there are some things which you’ve told me which are not important from the point of view of your claims but which are not true and I don't know why you've told me things that are not true. When you’re [sic] company for example is in 2 cities and is about to open in a third city. Why tell me its [sic] only in one city when it's in 2. And you must have known that.
A:It is impossible our company is just a small company, its [sic] not possible.
TM:Alright, well you’re - - when you go back you will find lots of surprises because I have the address here of their Shen Xung [I believe he means Shen Zhen] office.” [emphasis added]
Leaving aside the fact that any questions that may have been asked of the Australian Consulate have not been produced in writing, the comments of the Tribunal, at that stage in the proceedings, before any real questions have been asked about the applicant's claims to be a person to whom Australia owed protection obligations, seem to me to provide an excellent example of apprehended bias. In Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at 434 [27], the High Court said:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”
In NADH of 2001 v Minister for Immigration [2004] FCAFC 328, the Full Bench (Moore, Tamberlin and Allsop JJ) said:
“[17] First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof.
…
[20] At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question.” [internal citations omitted]
A fair-minded lay observer sitting at the back of the Tribunal's room, and hearing the Tribunal make the remark, which I have extracted from the transcript, would, to my mind, be in little doubt that the Tribunal had made up its mind then and there that the applicant was not going to be successful in his claim. This was done before there was any real discussion with the applicant about the nature of that claim.
I also have some criticisms of the discussion by the Tribunal with the applicant in regard to the claim, but I will not address them here because, subject to anything the Minister might have put in argument, I believe the two grounds on which this matter should have been referred back to the Tribunal to be heard and determined according to law are quite sufficient. I am now left with the situation where the applicant has not appeared. It may well be that he has left the country. On the other hand, there may be a reasonable explanation that he can put to this court by way of a further application. It would be best if I did dismiss the proceedings, but note that if the applicant does come back to the Court and provides a reasonable explanation for his absence today, the prospects are that subject to hearing argument from the Minister he will be successful.
In the light of the views expressed about the Tribunal's decision, I do not think it is fair to award any costs in the matter.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 October 2008
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