SZMQV v Minister for Immigration
[2008] FMCA 1651
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMQV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1651 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Thailand claiming fear of persecution for reasons of religion and political opinion – relocation – credibility – whether the applicant received a fair hearing by the Tribunal – whether the applicant should have had legal representation – bias – merits review – whether the applicant's medical condition prevented him from receiving a fair hearing – no evidence of bias – no reviewable error. |
| Migration Act 1958 (Cth), ss.91X, 276, 277, 280, 474 |
| NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 140 Aronson, Dyer & Groves, Judicial Review of Administrative Action, Third Edition, Lawbook Co., Sydney, 2004 |
| Applicant: | SZMQV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2147 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 October 2008 |
| Date of Last Submission: | 19 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $6,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2147 of 2008
| SZMQV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Thailand, asks the Court to set aside a decision of the Refugee Review Tribunal made on 24th July 2008.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant, in his application filed on 19th August 2008, seeks writs of certiorari, prohibition and mandamus. He filed an amended application in which he claimed he did not receive a fair hearing because of:
(1)Medical reasons.
(2)Lack of access to a lawyer or other professional representation.
(3)The number of interruptions that he faced when he was speaking.
(4)The attitude of the member during the hearing.
(5)Factual errors in the Tribunal’s decision.
Background
The applicant arrived in Australia on 11th November 2007. He applied for a Protection (Class XA) visa on 24th December 2007. He claimed in a statutory declaration that he was a Muslim who feared being killed by the Thai Army or by anti-government terrorists from the PULO (Pattani United Liberation Organisation).
A delegate of the Minister for Immigration and Citizenship refused the application for a visa on 21st February 2008. The delegate found some of the applicant’s claims to be “inconsistent and/or ill explained”[1] and did not accept that he was of significant adverse interest to the authorities or the insurgents. The delegate also considered that even if the applicant’s claims were accepted in their entirety, he could reasonably be expected to relocate within Thailand. The delegate stated:
The applicant’s fear must be well-founded in relation to the country as a whole. If there are parts of the country in which the applicant would be safe from persecution, and the applicant can reasonably be expected to relocate to those parts, he will not have a well-founded fear of persecution in relation to the country as a whole. There remains freedom of movement within Thailand and the applicant is in his early forties with extensive independent business and trade experience and with no family commitments or responsibilities.[2]
[1] Court Book 112
[2] Court Book 113
After his application for a visa was refused, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal received the applicant’s application for review on
26th February 2008. The applicant was represented by a migration adviser, Michaela Byers of Migration Education Services.
The Tribunal wrote to the applicant on 25th March 2008, inviting him to attend a hearing to take place on 14th April. The applicant’s agent replied, forwarding a Response to Hearing Invitation that indicated he would require a Thai interpreter.
On 8th April 2008, the applicant’s migration adviser sought an adjournment of the hearing, on the basis that the applicant had suffered an injury. The Tribunal declined that request
The applicant attended the hearing, accompanied by three friends.
He produced his passport to the Tribunal. The Tribunal adjourned the hearing until 15th May 2008. The Tribunal hearing record for 14th April 2008 states:
Hearing adjourned because applicant appeared to be very uncomfortable. Due to have X rays on 15/4/08.[3]
[3] Court Book 150
The applicant attended the adjourned hearing on 15th May 2008 and gave evidence with the assistance of an interpreter in the Thai language. The Tribunal again adjourned the hearing, this time until
10th June 2008. The Tribunal noted in its Decision Record:
The applicant appeared uncomfortable and stated that he felt a little weak as he had taken medication for his shoulder injury.
The Tribunal decided to adjourn the hearing and proceed on another day.[4]
[4] Court Book 200
The applicant attended the hearing on the adjourned date and resumed his evidence. The Tribunal offered to the applicant the opportunity to make a further written submission by 17th June. On 16th June 2008 the applicant forwarded a lengthy document to the Tribunal being a post hearing submission.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 10th July 2008 and handed the decision on 24th July. The Tribunal affirmed the decision not to grant the applicant Protection (Class XA) visa.
In its Decision Record, the Tribunal considered the applicant’s statutory declaration forwarded with his original application for a protection visa, statutory declarations by two friends of the applicant, a number of photographs submitted by the applicant, the applicant’s evidence at the Tribunal hearings on 15th May and 10th June 2008, and the applicant’s post-hearing submission made on 16th June 2008.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the applicant is citizen of Thailand. It noted the applicant’s claim to fear persecution because of his attempt to help his friend Amin. However, Amin was abducted and killed and the applicant claimed that if he were to return to Thailand he, too, would be killed.
The Tribunal stated:
The Tribunal accepts that there have been ongoing clashes between various factions in parts of Thailand and that persons have been seriously harmed. However, the Tribunal did not find the applicant to be credible on some key aspects of his claims as outlined below. The Tribunal is not satisfied that the applicant left Thailand because of a fear of persecution, as described in his application and evidence before the Tribunal.[5]
[5] Court Book 208
The Tribunal then set out a list of what it described as “inconsistencies and implausibilities”[6] that led it to conclude that the applicant was not truthful or credible. The Tribunal accepted that the applicant knew two people called Mamin and Amin in Thailand and that they were victims of harm, but it was not satisfied that he had attracted any adverse attention because of his connection to them.
[6] Ibid
The Tribunal also considered the applicant’s evidence that he had suffered a work injury and noted that it had conducted two hearings because it was of the view that the applicant “would not benefit from long hearings”.[7] The Tribunal stated that it organised breaks during the hearings.[8] The Tribunal also noted the applicant’s post-hearing submission that he may have made some small errors because of his physical and mental condition and asked the Tribunal to overlook them. The Tribunal found:
The Tribunal is satisfied that the applicant is not suffering from any health problems, such that they impeded his ability to give evidence before the Tribunal.[9]
[7] Court Book 210
[8] Court Book 199, 210
[9] Court Book 210
The Tribunal also considered the documents and photographs that the applicant provided, but made this finding:
In making the above findings, the Tribunal has had regard to the documents and photographs forwarded by the applicant to the Tribunal. However, given the degree of the credibility problems with the applicant’s evidence, the Tribunal cannot give any weight to the statements relating to the applicant’s material claims as set out in these documents and photographs. In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements relating to the applicant’s material claims in these documents and photographs are true.[10]
[10] Ibid
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees convention and therefore did not satisfy the criterion set out in s. 36(2)(a) of the Migration Act for a protection visa.
Application for Judicial Review
The applicant commenced proceedings in this Court on 19th August 2008. He filed an amended application, to which he had attached a transcript of the Tribunal hearings on 14th April and 10th June 2008 and some medical documents and receipts going toward his claim of having sustained a work injury.
The applicant attended Court on 29th October 2008 and made oral submissions. Although an interpreter in the Thai language had been ordered, no such interpreter was available. The applicant elected to proceed with the hearing in English, which he speaks quite well. However, because of this disadvantage in not having an interpreter,
I decided to permit him to file and serve a further outline of submissions after the hearing, which he did on 12th November 2008. The solicitors for the Minister filed a submission in reply on
19th November 2008.
The applicant claims in his amended application that he did not receive a fair hearing and set out five grounds of review:
(1)Medical reasons;
(2)Lack of access to a lawyer;
(3)Interruptions during the hearing;
(4)Attitude of the Tribunal Member; and
(5)Errors in the Tribunal Decision.
The applicant submitted that he was sick during the Tribunal hearing, was half asleep and unable to concentrate properly. He complained of having been “pressurised” by the Member. All of this, he claimed, impacted on his ability to present his case properly and respond to questions appropriately.
The applicant complained that he had not at any stage been able to afford legal representation. He was referred to a lawyer on the RRT legal advice panel, but he complained that he had not received the lawyer’s memorandum of advice before the time required to file and serve his amended application. This does not appear to be relevant to his claim of unfairness by the Tribunal.
The applicant complained that when he was speaking at the hearing, either when he was presenting his case or answering questions from the Tribunal, that he was continually interrupted. He referred to the transcript of the hearing on 15th May 2008 at pages, 52, 62 and 63.
The applicant complained of bias on the part of the Tribunal Member. He stated in his amended application that he was accompanied at the first Tribunal hearing by a refugee activist, a Ms Chaikin, who rang the Tribunal after the hearing and made a complaint about the Member:
…because her behaviour and attitude was[11] inappropriate.
This included interrupting me when I was speaking, poor verbal and body language, expressing doubt about my Thai nationality (which had already been established) and not allowing me to fully put my case forward. She also made comments based on her personal stereotypes rather than following protocol – for example when I said that I was drunk, she commented ‘Oh, you are a drinking Muslim’. In a free country, this is irrelevant.
[11] sic
The applicant submitted that, in his opinion, the Tribunal’s negative decision in his case amounted to the Member taking revenge because of the complaint against her.
The applicant further submitted that basic facts of his case were misquoted in the Tribunal decision. He gave these examples:
(1)The Tribunal mistakenly said that two persons with his friend Amin were selling batik.
(2)The Tribunal stated that the applicant’s friend Mameen was shot on 5th February 2007 instead of 5th April 2007.
(3)
The Tribunal stated that that the applicant went to Bangkok on
2nd April instead of 4th April 2007.
(4)The Tribunal stated that Amin was abducted on 13th March 2007 instead of 29th March 2007.
(5)The Tribunal stated that the applicant claimed that he could not apply for an Australian visa from Malaysia and Thailand when he had obtained a visa in Bangkok.
The applicant submitted that the Tribunal hearing was unfair. He asks that:
(a)His case be revisited;
(b)He be provided with a lawyer;
(c)He be provided with “proper access to the services and facilities” that would enable him to have a fair hearing; and
(d)The opinion in the course of preparation by his RRT legal panel lawyer be considered by the Tribunal.
The applicant made a written submission to the Court which was filed on 12th October 2008. He annexed to that submission a number of pages from the transcript of the Tribunal hearing, with relevant passages marked in green highlighter.
The applicant submitted that:
(a)The Tribunal did not understand his perspective about his organisation, so he wrote in detail about it in the post-hearing submission that the Tribunal invited him to make;
(b)The Tribunal should have contacted the Australian Embassy in Thailand to investigate his claims;
(c)He was sick during the Tribunal hearing on 15th May, which impacted on his ability to present his case. At the first Tribunal hearing he presented a medical certificate which the Tribunal rejected straight away;
(d)The attitude of the Tribunal member was biased for the reasons he previously stated – constantly interrupting him, poor verbal and body language, expressing doubt about his Thai nationality not allowing him to put his case forward fully, and making “sarcastic and taunting comments”; and
(e)Making factual errors in the decision.
The First Respondent’s Submissions
Mr Cleary of counsel, who appeared for the Minister, submitted that:
(a)The applicant had not served any evidence in support of his claim of being unable to present his case properly due to his poor health and, in any event, the Tribunal adjourned the first hearing date on 14th April due to the applicant’s medical condition and adjourned the second hearing on 15th May after the applicant complained of feeling weak;
(b)The Tribunal acted according to law by granting the adjournments (NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[12]) and there is no evidence that the applicant did not receive a fair hearing on the final hearing date (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[13]);
(c)The Tribunal is not obligated to provide access to a lawyer and in any event the applicant was represented by his own registered migration agent;
(d)The pages of the transcript do not support the allegation that the applicant was constantly interrupted when giving evidence;
(e)The complaint of bias is unfounded, whether it is actual or apprehended bias;
(f)To establish actual bias, the applicant would need to establish that before a conclusion could be reached the Tribunal Member had made up her mind and was incapable of being persuaded differently (Minister for Immigration and Multicultural Affairs v Jia Legeng[14]) and that the Tribunal Member had an intentional state of mind adverse to the applicant’s case (SCAA v Minister for Immigration and Multicultural Affairs[15]);
(g)Making an adverse credit finding against an applicant is not a basis for establishing bias (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs[16]);
(h)The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge or Tribunal member might not bring an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H[17]) and there is no evidence of apprehended bias;
(i)There is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact (Abebe v Commonwealth[18]);
(j)The Court has no jurisdiction to undertake a merits review of the applicant’s factual claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[19]; and
(k)The review by the Court is to ensure that the Tribunal, which was charged with the responsibility of investigating the applicant’s claims, acted according to law (SZHZT v Minister for Immigration and Citizenship[20] at [7]).
[12] [2003] FCA 140
[13] [2003] FCAFC 126
[14] (2001) 205 CLR 507; [2001] HCA 17
[15] [2002] FCA 668
[16] (2003) 131 FCR 102
[17] (2001) 179 ALR 425
[18] (1999) 197 CLR 510
[19] (1996) 185 CLR 259
[20] (2007) FCA 1661
In reply to the applicant’s further submissions, Mr Cleary submitted for the Minister that:
(a)The Tribunal did not misunderstand the applicant’s claim, but considered and rejected the claim that the applicant was involved in setting up the organisation to which he referred;
(b)Any argument about the Tribunal’s findings about the applicant’s delay in departing from Thailand should be rejected as those findings (at page 209 of the Court Book) were open to the Tribunal;
(c)The applicant has not served any evidence in support of his claim that he was sick during the Tribunal hearing and the Tribunal did in fact adjourn the hearing on two occasions;
(d)There is no evidence that the Tribunal was biased, either because the applicant was interrupted in giving his evidence or because the Tribunal asked him questions about his nationality and religion; and
(e)There is no error of law in making a wrong finding of fact; and
(f)The Tribunal did not in fact make two of the factual errors that the applicant claims that it made.
Conclusions
The applicant relies on five grounds of review in support of his claim that the Tribunal did not provide him with a fair hearing:
(1)Medical reasons;
(2)Lack of access to a lawyer;
(3)Interruptions by the Tribunal during his evidence;
(4)The attitude of the member during the hearing, i.e. an allegation of bias; and
(5)Factual errors in the Tribunal decision.
The applicant’s Ground 1 refers to medical reasons that prevented him from receiving a fair hearing. The evidence before the Court comes from the transcript and the Tribunal’s hearing records, the Decision Record and other documents in the Court Book.
The hearing on 14th April 2008
The applicant’s migration adviser wrote to the Tribunal on 8th April 2008, enclosing some medical documentation and asking for a postponement of the hearing on 14th April.[21] The Tribunal declined to postpone the hearing and advised the applicant’s migration adviser on 10th April.[22]
[21] Court Book 137-143
[22] Court Book 144-145
The applicant attended the hearing on 14th April, accompanied by one Lynette Chaikin, described as a refugee activist, a talkative taxi driver called Toryalay, both of whom attended as observers, and another person who had come as a witness. That person, whose name will not be published in case he is an applicant for a protection visa himself,[23] said he had arrived in Australia a couple of weeks previously from Afghanistan via New Zealand. The proposed witness said that he had recently been to Thailand and could give evidence about the problems there.
[23] Migration Act 1958 (Cth) s 91X
Ms Chaikin offered to be a witness or an observer and said that she wished to stay in the Tribunal hearing room because the applicant was “not very well”.[24] The Tribunal Member permitted Ms Chaikin and the taxi driver to stay in the hearing room.
[24] Transcript 7
The applicant told the Tribunal that he had suffered an industrial accident on the 18th March. The Tribunal then had a discussion with the applicant as to whether he was in a fit state to commence the hearing, saying:
Some of my observations of you, I don’t think your[25] in a position to actually undergo an examination by me at this time. You look extremely uncomfortable…I know your[26] unfit to work but looking at you, you look actually unfit to have a hearing…
But I’m, I’m not very happy about your condition. You seem to be in an awful lot of pain. You look very uncomfortable. And…
I can put it over…and …to another day if you would think you would feel better.[27]
[25] sic
[26] sic
[27] Transcript 8-9
After a discussion the Tribunal decided to adjourn the hearing, saying:
Anyway, we’ll talk about it on the next occasion. I’ll…I’ll just the hearing for now. And when I hear from you through my case officer and from your doctor, we’ll then look to new dates. Okay. Alright. And your friend…if you can bring him. Okay?[28]
[28] Transcript 11
The Tribunal later said:
I’m just…er…I’ve just made a decision we are…we are not going to go ahead with this hearing today because your friend is…looks too uncomfortable. He’s said he has taken a tablet and that probably will affect his concentration so I think it’s best if he comes when he is feeling a little healthier. I’ve been able to observe him now and I’m satisfied by what I have seen that he is not well…so…we’ll fit in with a day when we can hear the matter again…[29]
[29] Transcript 13
The above passages, from the applicant’s own transcript, do not support any claim that the Tribunal failed to have regard to the applicant’s medical condition on 10th April. It was the decision of the Tribunal not to proceed with the hearing on that day, based on the Tribunal Member’s observation of the applicant. The Tribunal Member appears to have been extremely considerate of the applicant’s welfare and to have shown a concern for the applicant’s ability to give evidence on his own behalf.
The hearing on 15th May 2008
The Tribunal hearing recommenced on 15th May 2008. Although the applicant made no comment about his condition at the commencement of the hearing, the Tribunal offered him a chance to take a break:
Okay…now, I am going to ask you some questions about you(r) life and about your claim. If you need to take a break, let me know. Alright?[30]
[30] Transcript 17
The applicant asked to take a break a little later on in the hearing.
Can I take a short break please?
Member: Hmm.Hmmm.
You want to go outside?
Okay.
10 minutes?
Applicant: Er…15 minutes please.
Member: Okay.
We need to take a break.[31]
[31] Transcript 44
The hearing was adjourned for fifteen minutes at 12:41 pm. It resumed at 1:06 pm.[32] Later, the applicant asked to take a three minute break. The Tribunal agreed, and then asked the interpreter about her availability:
[32] Transcript 45
Member: How are you going for time madam interpreter?
Interpreter: You need another hour?
Member: I don’t know if I’ll go another hour…I may call it to a close and get the applicant to come in on another day…he is probably getting tired now.[33]
[33] Transcript 73
The Tribunal decided to adjourn the hearing:
Member: Alright so I am going to adjourn for another day, we’ll let you know what day…Is it better for you to come in the morning?
Applicant: Because…actually…my condition is same worse like past…and a little bit better…but my physio[34] time is some new exercises which make me worst and I didn’t sleep past 48 hours.
Member: Well, you see that’s no good.
Applicant: So…But I come here I take double dose…which my friend knows it and my medicine in my bag…but I don’t know next time how long it will be.
Member: Well…It won’t be as long next time. We should be able to finish it off in a couple of hours next time. Okay but I think it’s best we take a break right now?
[34] The spelling has been corrected from the Transcript
Applicant: If we continue now…how long it will take time?
Member: It could take another couple of hours.[35]
[35] Transcript 74-75
The hearing was adjourned at 2:24 pm[36].
[36] Transcript 78
Again, this a case where it was the Tribunal Member who decided to adjourn the hearing based on her concerns for the applicant’s health and comfort. The passages quoted above do not support the proposition that the applicant did not receive a fair hearing on 15th May because of his medical condition or because the Tribunal did not take his health into account. Clearly, the reverse is true. The Tribunal appeared to be quite concerned about the applicant’s health situation and made a decision to adjourn the hearing because the applicant was “probably getting tired”.
The hearing on 10th June 2008
The Tribunal hearing resumed at 11:40 am on 10th June 2008.
The Tribunal immediately asked the applicant how he was feeling:
Member: And how are you feeling, feeling any better?
Applicant: Today I didn’t take any medicine…
Member: That’s good
Applicant: Not any tranquilizer because sometimes I cannot understand when question and answering…but I done my CT scan.
Member: And how did that go?
Applicant: uh, they sent report to doctor, so tomorrow I will go to doctor.
Member: And was there anything you wanted to say about the last attendance, anything else that you were concerned about?[37]
[37] Transcript 78-79
The hearing proceeded to its conclusion. The applicant gave evidence and appeared to be able to answer the Tribunal’s questions without difficulty. He did not ask to take a break or complain of any discomfort.
The transcript of the hearing does not show that the applicant was impeded from giving evidence or presenting arguments because of his health. The Tribunal was mindful of the applicant’s situation and made a decision on two occasions to adjourn the hearing until another day so that the applicant would be in a fit state to present his case.
The applicant raised in his post-hearing submission dated 16th June 2008 his concerns that he was “mentally absent” in the hearing because of his use of tranquilizers, which is the reason he gave for asking the Tribunal:
And I am pretty much sure that I had made some more small mistakes in the hearing that’s why I want to make a request by saying due to my physical and mental conditions overlook the small mistakes I made during the hearing should not be considered.[38]
[38] Court Book 184
The Tribunal took this submission into account but said:
The Tribunal is satisfied that the applicant is not suffering from any health problems, such that they impeded his ability to give evidence before the Tribunal.[39]
[39] Court Book 210
I am satisfied that the Tribunal gave more than adequate consideration to the applicant’s health situation and took steps to ensure that he was able to give evidence and present arguments in support of his case.
The applicant’s first ground of review has not been made out.
The applicant’s Ground 2 complains that he did not receive a fair hearing because of lack of access to a lawyer or other professional representation.
There is no right to legal representation before the Refugee Review Tribunal (Migration Act, s. 277). A registered migration agent may give immigration assistance by representing an applicant before a review authority, being the Migration Review Tribunal or the Refugee Review Tribunal (ss. 276, 280).
In this case, the applicant used the services of a registered migration agent who is also a solicitor. However, the migration agent did not attend any of the hearings. This was entirely a matter between the applicant and the migration agent and the Tribunal had no obligation to provide any representation to the applicant at the Tribunal hearing.
The applicant’s second ground of review has not been made out.
The applicant’s Ground 3 complains that he did not receive a fair hearing because of “the amount of interruptions I faced when I was speaking which meant I could not explain my situation clearly.”
The applicant claims that during the hearing he was continually interrupted, which made him either lose his place or prevented him from speaking at all. A reading of the transcript of the hearing, over the three days, does not bear out that claim at all.
The applicant refers to two passages in the transcript in support of that proposition. He refers to page 52 of the transcript, “When I was told that I am not looking Thai, and when I started answering her questions I was interrupted several times”. The transcript says:
Member: Hmmm hmmm…maybe not Bolivian. But you don’t look Thai.
Applicant: Right now a lot of people is same like me in Thailand. Because you know…
Member: Do you speak any Pakistani languages?
Applicant: No…little bit that I learn about…basically when we say welcome salam maliqum[40]…this is a Islamic word…everyone can say this.[41]
[40] sic
[41] Transcript 52
The most that can be said about that passage is that the Tribunal interrupted the applicant once.
The applicant referred to the transcript at pages 62 and 63 where again he claims that he was interrupted and prevented from presenting his case. However, whilst the two pages contain some examples of the Tribunal Member and the applicant speaking across each other, it is quite apparent that the applicant was able to communicate his point of view. There is no evidence to show that the applicant was prevented from speaking at all or even that he was forced to lose his place.
The transcript contains many examples of the applicant giving lengthy answers to the Tribunal’s questions.
The applicant’s Ground 3 has not been made out.
The applicant’s Ground 4 complains that the applicant did not receive a fair hearing because of the attitude of the Tribunal member during the hearing.
Essentially, this is a claim of bias. The applicant claims that Ms Chaikin, the refugee activists who accompanied him to the hearing on 14th April 2008:
…rang the RRT and made a complaint about the member because her behaviour and attitude was inappropriate. This included interrupting me when I was speaking, poor verbal and body language, expressing doubt about my Thai nationality (which has already been established) and not allowing me to fully put my case forward.
The applicant expressed the view that the negative decision by the Tribunal “amounts to the member taking revenge because of the complaint against her”. This claim needs to be addressed firmly.
There is no evidence of poor verbal and body language by the Tribunal Member. Had Ms Chaikin witnessed such matters, she could have deposed to such things in an affidavit. There is no affidavit.
The evidence before the Court is that Ms Chaikin attended the hearing on 14th April only, and there is no evidence in the transcript of the Tribunal:
(a)interrupting the applicant when he was speaking;
(b)expressing doubt about the applicant’s Thai nationality; or
(c)not allowing the applicant to put his case forward fully.
The question of the applicant’s Thai nationality was not even discussed at the hearing on 14th April. The transcript largely deals with the Tribunal’s concerns about the applicant’s state of health and the decision not to proceed with the hearing on that day because the Tribunal had formed the view that he was not well enough. If it is the case that Ms Chaikin telephoned the Refugee Review Tribunal and complained about the Member’s attitude and actions on 15th May and 10th June she could only have been repeating what the applicant told her, because there is no evidence whatsoever that she was present on either of those dates.
It is hardly a criticism of the Tribunal Member’s attitude to claim that the applicant was unable to present his case properly because the Tribunal adjourned the hearing because the applicant was not well enough.
The allegation of bias is an allegation of actual bias on the part of the Tribunal. It is a serious allegation which should not be made lightly.
It must be clearly alleged and strictly proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[42] at [43]). In their text Judicial Review of Administrative Action[43] the authors, Messrs Aronson, Dyer and Groves, state at page 565:
The core of the test for bias for decision-makers exercising public power is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision-maker.
[42] [2002] FCAFC 361
[43] Aronson, Dyer & Groves, Judicial Review of Administrative Action, Third Edition, Lawbook co., Sydney 2004, p.565
There is no evidence to show that the Tribunal Member showed any lack of impartiality in deciding this matter. The transcript of the hearing, provided by the applicant in support of his case, contains strong evidence that the Tribunal was most considerate of the applicant’s health situation and, if anything, bent over backwards in order to ensure that the applicant was able to present his case. It is a most regrettable accusation to accuse the Tribunal of bias without any foundation.
The applicant complained that the Tribunal questioned his Thai nationality. This is based entirely on the comment made during the hearing “You don’t look Thai”. Whilst that may not have been the most useful comment for the Tribunal Member to have made, nothing turns on that fact, because the Tribunal accepted that the applicant was a citizen of Thailand and assessed his claim against Thailand as his country of nationality. Had the applicant’s migration adviser attended the Tribunal hearing, the adviser could have informed the applicant that it is a part of the function of the Refugee Review Tribunal to make a finding as to an applicant’s nationality in order to assess the applicant’s claims against that country.
The allegation of bias is baseless and Ground 4 fails.
The applicant’s Ground 5 complains that the Tribunal made a number of factual errors. It is well established, as counsel for the Minister has submitted, that there is no error of law let alone a jurisdictional error in the Tribunal make a wrong finding of fact (Abebe v Commonwealth[44]).
[44] (1999) 197 CLR 510
The applicant, in his post-hearing submission to the Court, refers to “critical mistakes” of fact made by the Tribunal. The claims of error made by the applicant include:
The member wrote about the very important character of my claim Mameen that he was shot on 5th February 2007 that he was shot on 5th of February 2007 but I have clearly mentioned in my statement that Mameen was shot in April 2007.
In the verdict the member had written about the second important character of my claim Ameen he was kidnapped on 13th March 2007 while I have clearly mentioned in my statement that Ameen was kidnapped on 29th March 2007.
The discrepancy in dates does not, to my mind, have any bearing on the Tribunal’s decision. The exact dates can hardly be said to be jurisdictional facts. In any event, in its Findings and Reasons, the Tribunal says:
He referred to his friend Amin being abducted on 29 march 2007 and also to the murder of his friend Mamin in April 2007.[45]
[45] Court Book 208
The Tribunal accepted that the applicant knew Mamin and Amin in Thailand and that they were the victims of harm. What it was not satisfied about was that the applicant attracted any adverse attention because of his connection to those two men.[46] This was a finding open to the Tribunal on the evidence. Any discrepancy in dates, if there was such a discrepancy, is of no relevance.
[46] Court Book 209-210
In any event, there is no error of law, let alone jurisdictional error, in errors of fact.
The applicant has not shown any jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision (Migration Act, s. 474(2)) and it is final and conclusive.
The application will be dismissed with costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 8 December 2008
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