SZNHO v Minister for Immigration & Anor

Case •

[2009] FMCA 460

•

14 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 460

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – citizen of China claiming fear of persecution for reason of political opinion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – apprehended bias – no reviewable error.

PRACTICE & PROCEDURE – Audio recording of Tribunal hearing – where applicant requested that Court should listen to audio recording of Tribunal hearing.
Migration Act 1958 (Cth), ss.424A, 476
SZKOB v Minister for Immigration & Citizenship [2007] FCA 1949
SZMOO v Minister for Immigration & Citizenship [2009] FCA 211
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
Ebner v Official Trustee In Bankruptcy (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Vakauta v Kelly (1989) 167 CLR 568
Vaitaiki v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 114
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VFAB of 2002 v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 102
SZEOQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1171
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Applicant: SZNHO
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 525 of 2009
Judgment of: Scarlett FM
Hearing dates: 22 April and 14 May 2009
Date of Last Submission: 14 May 2009
Delivered at: Sydney
Delivered on: 14 May 2009

REPRESENTATION

Applicant: Appeared in person
Solicitors for the Applicant: No solicitor on the record
Counsel for the Respondents: Mr Reynolds
Solicitors for the Respondents: Clayton Utz (Mr Conomos)

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $8,400.00. 

  3. I allow six (6) months to pay. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 525 of 2009

SZNHO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is a case where recordings of proceedings have assumed some prominence. This issue arises in two ways. The Applicant has complained that he did not receive a recording or a transcript of his interview with a Departmental officer.  In the course of the hearing of his application for review the Applicant requested that the Court should listen to a recording of the Tribunal hearing. 

  2. This application is an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision by a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa. 

  3. The Applicant seeks a review of that decision and claims that the Tribunal fell into error when it did so.  He filed an amended application in which he set out one ground divided into two parts and at the hearing he sought leave to rely on another ground relating to an apprehension of bias. 

  4. The Applicant in his application seeks the issue of writs of certiorari, to quash the Tribunal decision and mandamus, requiring the Tribunal to determine his application according to law. 

  5. The Minister for Immigration & Citizenship, who is the First Respondent, opposes that application. 

Background

  1. The facts of the matter, so far as they are relevant, are that the Applicant, who is a citizen of China, arrived in Australia on 11th July 2008. He applied for a Protection (Class XA) visa on the 14th of that month.  A delegate for the Minister for Immigration & Citizenship refused the application for a visa on 22nd September 2008. Exactly one month later, on 22nd October 2008, the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.  

  2. The Applicant had claimed in his application for a visa that he feared persecution if he were to return to China owing to his active involvement in activities of protesting against the authorities of the People's Republic of China. He set out his claims in a statutory declaration which he provided with his application for a visa. This application was brought with the assistance of a migration agent. 

  3. In his statutory declaration the Applicant claimed that he was a farmer because he had held an agricultural household register. He claimed that he was involved in a construction project as a labourer and worked in Fujian province. He claimed that after the project was completed he and the other employees did not receive nearly the amount of wages that they had been promised. Their efforts to obtain justice in respect of their claim to recover those wages came to nothing. 

  4. The Applicant claimed that he involved himself in a sit-in protest in front of the Fujian provincial government building in Fuzhau city.  The protest was scheduled to take place on 1st March 2008, but the Applicant claims that he was arrested on 29th February 2008. He claimed that he was detained from 29th February to 11th April 2008 by the PSB. On 11th April 2008, after his family had paid a bribe to the police he was released on a bail to seek medical treatment.  But he was required to report to the police station once a week after he was released. His family made arrangements for him to contact with a person known as a snake head who is a person able to smuggle people out of the country.  He claimed that on 11th July 2008 he left China and has not returned.  He claims to have been put on a black list by the PSB and believes that he will be subject to persecution on his return. 

  5. The Department of Immigration & Citizenship wrote to the Applicant and invited him to attend an interview on 26th August 2008. The Applicant attended the interview and produced a copy of his passport.  However, the Department of Immigration & Citizenship refused the application for a Protection (Class XA) visa. 

  6. The delegate stated in the Protection (Class XA) visa decision record that the delegate did not accept that the Applicant had been arrested when in China.  The delegate said:

    At the end of the interview, I put it to the applicant again that it is hard to believe that he was the only one who was arrested out of the 23 of them and he was not even the leader of the group.[1]

    [1] See Court Book at page 55.

  7. The delegate found the Applicant's evidence to be vague and inconsistent in some parts and did not accept that the Applicant had been arrested as he had claimed. The delegate referred to the Applicant's claim to have been involved in a construction project and noted that the Applicant had sought to correct the date when he said he was involved. The delegate said:

    If the applicant had actually been involved in the said project, it is unlikely that he would have made the error in stating the wrong year.[2]

    [2] See Court Book at page 56.

  8. The delegate referred in the decision record to other parts of the Applicant's evidence which were described as improbable or implausible. The delegate did not accept that the Applicant had been arrested and detained. The delegate considered country information, particularly about the Applicant's account that he was able to depart from China in a lawful manner using his own passport. 

  9. The delegate found that the Applicant's fear of Convention-based persecutory harm in China was neither genuine, nor well-founded, and refused the application for a visa.

Application to the Refugee Review Tribunal

  1. The Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.  He had the assistance of a migration agent in this regard. 

  2. The Tribunal wrote to the Applicant on 19th November 2008 inviting him to attend a hearing on 14th January 2009.  The Applicant attended that hearing and gave evidence with the assistance of an interpreter.

  3. The Applicant produced his passport issued by the People's Republic of China at the hearing. He also provided a copy of a document in Chinese translated into English described as a detention warrant which was issued by the Fuqing Municipality Public Security Bureau.   

  4. After the hearing, on 16th January 2009, the Tribunal wrote to the Applicant at the address of his migration agent.  The letter was headed "Invitation to comment on or respond to information in writing" and was clearly intended to comply with the requirements of s.424A of the Migration Act.

  5. In that letter the Tribunal invited the Applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response that he made, be a reason or part of the reason for affirming the decision that was under review.  The letter then set out the particulars of that information in 11 numbered paragraphs.  The Tribunal invited the Applicant to provide his written comments or response by 30th January 2009. 

  6. The Applicant with the assistance of his migration agent provided the Tribunal with a statutory declaration in answer to the letter. That document was sent through by fax on 30th January 2009.  The statutory declaration extends into three pages and contains 11 numbered paragraphs. In [9] the Applicant made this complaint:

    Again, I have not been provided recording tapes or CDs or transcripts in relation to the interview and thus I am unable to recall what I claimed at the interview exactly.

  7. Likewise, in [10] of the Applicant's statutory declaration, the Applicant said:

    Likewise, I'm really unable to recall what I have claimed at the interview. 

The Tribunal’s Decision

  1. The Tribunal signed its decision on 4th February 2009 and handed that decision down the following day. The Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa. 

  2. In its decision the Tribunal set out a statement of the relevant law, summarised the Applicant's claims taken from his application for a protection visa, taken from the interview with the delegate on 26th August 2008 and from the Applicant's evidence at the hearing.  The Tribunal stated:

    The applicant was interviewed by a delegate of the Minister on 26 August 2008.  The Tribunal has listened to an audio recording of the interview and the applicant's oral evidence to the delegate is summarised below.[3]

    [3] See Court Book at page 92.

  3. The Tribunal considered in its decision its letter to the Applicant under s.424A of the Migration Act and the Applicant's response of 30th January 2009. 

The Tribunal’s Findings and Reasons

  1. In its findings and reasons the Tribunal accepted that the Applicant is a national of China, having cited his passport at the hearing.  However, as to the Applicant's evidence, the Tribunal formed this view:

    The applicant did not impress the Tribunal as a reliable, credible and truthful witness.  In reaching this view the Tribunal has had regard to the inconsistencies between the evidence he presented to the Department and his evidence to the Tribunal, the implausibility of significant aspects of his claims, as well as other reasons detailed below.[4]

    [4] See Court Book at page 101.

  2. The Tribunal set out these reasons: 

    i)First, the Applicant introduced new claims and provided inconsistent evidence in relation to his wife's whereabouts and circumstances.

    ii)Second, the Applicant provided inconsistent evidence in relation to his father's health condition. 

    iii)Third, the Applicant provided inconsistent evidence in relation to his role in protesting against Mr Jia and demanding government action.

    The applicant also provided inconsistent evidence regarding his activities, specifically in relation to whom he had approached in order to recover the money owed to him by Mr Jia. 

    iv)Fourth, in describing his activities the Applicant stated that he and other people were all involved in preparing for a demonstration that he had planned to stage on 1st March 2008, but at the interview he contradicted this claim by stating that at least seven or eight members of the group were involved in the preparation activities. 

    v)Fifth, the applicant claimed at the interview that he was the only one arrested by the authorities and that his colleagues ran away after being warned by the Applicant's family.  Later, however, when he was asked to explain this inconsistency he shifted his evidence by stating that his colleagues did not run away but were temporarily fined. 

    vi)Sixth, the Applicant's claim that he was the only person who was targeted for arrest and detention by the authorities did not appear to be credible to the Tribunal. 

    vii)Seventh, the Applicant's claim that he and his colleagues had planned their demonstration for 1st March 2008 was described by the Tribunal as "devoid of credibility"[5]. 

    viii)Eighth, the Applicant's evidence to the Department and Tribunal was inconsistent with the contents of the documentary evidence he submitted in support of his application for review. 

    ix)Ninth, the Applicant departed China on a passport issued in his own name, which based on Independent Country Information was inconsistent with the claim that he was a person who had come under adverse notice. 

    [5] See Court Book at page 104.

  3. Accordingly, the Tribunal made this finding:

    For all of the above reasons, the applicant did not impress the Tribunal as a credible witness. The totality of the applicant's evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose.[6]

    [6] See Court Book at page 105.

  4. 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

  1. The Applicant sought judicial review of that decision by means of an application and an affidavit in support filed on 5th March 2009. The application came before the Court on its First Court Date on 23rd March 2009.  At that stage directions were made for hearing and those directions included arrangements to file any amended application and written outline of submissions. 

  2. The Applicant filed an amended application on 20th April 2009, which was some five days after the application should have been filed.  That document had been prepared for the Applicant by a barrister on the Refugee Review Tribunal Legal Advice Panel. Unfortunately, the lawyers for the Minister had filed a written outline of submissions on 17th April 2009, some three days before the amended application was filed.  Thus, the outline of submissions addressed the grounds in the original application but did not address the grounds in the amended application. 

  3. At the hearing on 22nd April 2009 the Applicant sought and was granted leave to rely on the amended application. In the amended application he sets out one ground alleging a breach of s.424A of the Migration Act, but it is divided into two parts. The ground says:

    The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise, jurisdiction, by reason it erred in law in that it failed to comply with the Migration Act 1958, s.424A.

    Particulars:

    a)  The RRT failed to provide to the Applicant a copy of the audio recording of his interview with a delegate of the First Respondent held on 26 August 2008 prior to the hearing of the Second Respondent held on 14 January 2009 and/or in conjunction with the provision of its s.424A letter dated 16 January 2009. 

    b) The RRT failed to properly inform the Applicant in its s.424A letter dated 16 January 2009, of the relevance of particulars of information contained in paragraphs 1 to 10 of that letter.

Submissions

  1. The Applicant did not file a written outline of submissions but made oral submissions to the Court.  In his submissions he sought to refer to matters in his original application which had of course been superseded by the amended application.  He set out what appeared to be three separate grounds. 

    1) In assessing my specific case the Refugee Review Tribunal failed to take into account the special conditions in China.  For example, my contact with my wife and my family members in China. 

    2) As an applicant for refugee status I myself am a total stranger in this new land.  I got no understanding of the local law system.  When I dealt face-to-face with the Department of Immigration & Citizenship and the Refugee Review Tribunal I was quite nervous and frightened.  I was not used to speaking through an interpreter.

    3) The Refugee Review Tribunal had used the evidence when I had the interview with the Department of Immigration & Citizenship as a ground to reject my case. At the Refugee Review Tribunal some of the material put to me was not material that had been given by myself.  The Refugee Review Tribunal was not able to prove what I had said at the interview.

  2. Mr Reynolds of counsel, who appeared for the Minister, in oral submissions put that the first and second grounds were in effect an attempt to persuade the Court to engage in merits review of the factual decision of the Tribunal. He submitted that the Tribunal had made an adverse credibility finding against the Applicant and it was open to the Tribunal to do so on the material before it. 

  3. In respect to the third ground, Mr Reynolds submitted that the Tribunal had put in its s.424A letter and at the hearing the things that it would rely on. He further submitted that the s.424A issue did not apply because the matters relied upon fell within either s.424A(3)(a) or (3)(b).

  4. The Applicant was offered the opportunity to make a submission in reply. During that submission he made an allegation of a further ground of review, namely ground of apprehended bias.  The Applicant said that he just felt that the Tribunal from the very beginning to the end was approaching the matter in a presumptive and doubtful way. Every question was phrased as doubtful.  If everything was approached in a doubtful frame of mind, it was just not right. 

  5. I have taken the view that this is a ground of apprehension of bias.  The Applicant sought to tender the three compact discs containing the recording of the Tribunal hearing. I have considered that request and, notwithstanding the fact that the request was made towards the end of the hearing on 22nd April 2009 and that it related to a ground that had been brought for the first time at the hearing and not foreshadowed in the amended application, I took the view that as the Applicant had brought the compact discs to the hearing that it would be appropriate for the discs to be played and heard by the parties. 

  6. Rather than play the discs in open court, which I considered to be unnecessary, I adjourned proceedings. Counsel for the First Respondent informed me that the Minister's lawyers were in possession of a duplicate set of discs and that he would arrange for the recording of the hearing to be listened to shortly after the adjourned date.  I was of the view that in all the circumstances it was appropriate for the Minister's lawyers who had not heard the hearing to listen to the compact discs before the Court did.  Several days later the solicitor for the Minister contacted my Associate to advise that the discs had been played. 

  7. A supplementary submission dealing with that additional ground was filed on 29th April 2009.  As I have said today, I consider that this was an appropriate step to take as the ground had not been foreshadowed prior to the hearing and the compact discs were not the subject of any discussion prior to the hearing. I am informed that a copy of the supplementary outline of submissions was forwarded to the Applicant in the usual way, although I was told that he claimed not to have received them and that a further copy was provided to him today and translated into English by the interpreter provided by the Court. 

  1. I have played the three compact discs, which form Exhibits 1, 2 and 3 respectively, in my Chambers.  Indeed, I have played them twice. 

  2. The hearing resumed today. The Applicant reiterated his claim that the conduct of the Tribunal Member during the hearing led to an apprehension of bias as he said that the Member was "very picky" and "harsh".  He submitted that the Tribunal did not genuinely wish to assess his case fairly but purposely picked and chose and purposely tried to find the inconsistencies in his story. 

  3. The Applicant then dealt with some aspects going to the factual basis of his claim and went on to tell the Court after that that at both the Departmental interview and the Refugee Review Tribunal hearing he was nervous and fearful.  He could not express his claims clearly and he reiterated his complaint that the Tribunal did not provide him with the record of interview with the Department. 

  4. In its submission in reply the Applicant covered a number of factual matters going to his claim, reiterated his claim about the Tribunal Member expressing doubt throughout the hearing and for the first time referred to the Tribunal Member's body language. I have no evidence of the Tribunal Member's body language.  I listened to a compact disc which provided audio.  It was not a video disc. 

  5. The Applicant claimed that the Tribunal did not take into account his particular circumstances, which is that he was under enormous pressure and psychologically fearful because:

    a)first, he had heard about his father's illness, and

    b)second, he was in an unusual situation because he was a refugee applicant in a foreign country who did not speak the language and was in a very strange situation being interviewed:

    i)first of all, by an officer of the Department of Immigration & Citizenship, and

    ii)secondly, attending a hearing of the Refugee Review Tribunal. 

  6. In relation to that last point first, it should be noted that many applicants for refugee visas in Australia are in a difficult situation.  Some of them do not speak English at all.  Many of them have never been interviewed by an officer of the Australian Government or have ever appeared before a Tribunal of any description, whether in Australia or elsewhere. 

  7. It is certainly a matter within the knowledge of the Refugee Review Tribunal that people would feel nervous and ill-at-ease when appearing before it. I accept the fact that Tribunal Members would have dealt with such people on many occasions, but at the same time a hearing before the Refugee Review Tribunal was something that was a first-time experience for this Applicant. There is no evidence, however, before this Court that the Tribunal did not give the Applicant appropriate consideration for that situation in which he found himself. 

Considerations

Grounds from the Applicant’s Amended Application:

Ground 1(A)

  1. Dealing with the Applicant's various grounds, first, there is the claim in the amended application that the Tribunal failed to comply with s.424A of the Migration Act in two ways. The first claim is that the Tribunal failed to provide to the Applicant a copy of the audio recording of his interview with the delegate held on 26th August 2008 prior to the hearing.

  2. It is well-established that there is no obligation upon the Tribunal to provide to an applicant a copy of transcript or recordings of a Departmental interview. True it is that there is a requirement that the Tribunal provide a copy of a recording of its own hearing, but it is under no obligation to provide an applicant before it with a transcript or a recording of the Departmental interview.  I refer to SZKOB v Minister for Immigration & Citizenship[7] where Flick J said at [12]:

    First, it is not considered that there was any requirement to provide the Appellant with transcript or recording of the interview.  In some circumstances fairness may require a transcript of proceedings to be provided: see National Companies & Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217.  There is, however, no immutable requirement to do so: see Adler v Cantwell (1988) 14 ACLR 658.

    [7] [2007] FCA 1949

  3. His Honour went on to consider procedural fairness at common law and referred to the provisions of s.422B of the Migration Act. He then went on to say at [14]:

    Even in the absence of s.422B, it is not considered that the common law rules of procedural fairness require the provision of a transcript or a tape recording of the interview on 10 October 2006.

  4. That decision was followed by the Honourable Reeves in SZMOO v Minister for Immigration & Citizenship[8]. Those decisions are both appeals from decisions of this Court.  They are binding on this Court and following both of them I find that the Refugee Review Tribunal was under no obligation to provide to the Applicant a copy of the audio recording of his interview with the Minister's delegate on 26th August 2008 prior to the Tribunal hearing or at any time. Accordingly, that part of the ground must fail.

Ground 1(B)

[8] [2009] FCA 211 at [39]

  1. The second part of the Ground 1(B) claims that the RRT failed to properly inform the Applicant in its s.424A letter dated 16th January 2009 of the relevance of the particulars of information contained in paragraphs 1 to 10 of that letter. This claim is puzzling and misconceived because a reading of the copy of the letter, which appears at pages 71 to 73 of the Court Book, shows that the Tribunal did exactly that.  In the second paragraph the Tribunal said:

    You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decision that is under review.[9]

    [9] See Court Book at page 71.

  2. The Tribunal then set out particulars of that information in [1] to [11].  At the end of [9] the Tribunal said:

    The information contained in each of the above paragraphs is relevant because on the basis of inconsistencies between your evidence to the Department and your evidence at the review stage, the Tribunal may disbelieve your claims and find that you have not been truthful and/or credible.[10] .

    [10] See Court Book at page 72.

  3. The Tribunal then at [10] referred to the Applicant to the statement that he made at the Departmental interview that he was the only one arrested and that his colleagues had run away after being warned by his family.  The Tribunal canvassed that information and then said:

    The above information is relevant because on the basis of shifts, changes and inconsistencies in your evidence as presented at various stages to the Department, as well as the inconsistencies between your evidence to the Department and your evidence to the Tribunal, the Tribunal may disbelieve your claim and find that you have not been truthful and/or credible.[11]

    [11] See Court Book at page 72.

  4. Whilst no such claim is made in respect of the information set out in [11] of the letter, I would comment that at the end of that paragraph the Tribunal said:

    This information is relevant because the document, which was issued on 29 February 2008, expressly states that you were to be detained from 29 February 2008 to 11 April 2008. This contradicts your claim throughout the process that you were unaware of your period of detention and that you were released on 11 April 2008 only because your family paid a substantial bribe.  On the basis of the inconsistencies between your claims and the information contained in the Detention Warrant, the Tribunal may disbelieve your claims and find that you have not been truthful and/or credible.  The Tribunal may also find that the Detention Warrant is fraudulent and not a genuine document.[12]

    [12] See Court Book at page 73.

  5. In my view, the Tribunal's letter under s.424A of the Migration Act did set out clearly and precisely the relevance of the particulars of information contained not only in [1] to [10] but [11] of that letter and, in my view, the letter does not contravene the requirements of s.424A of the Migration Act in any respect. It follows that the second part of Ground 1 has not been made out.

Grounds from the Applicant’s Oral Submissions:

  1. The Applicant did, as I mentioned, refer to three grounds during his initial submission, which Mr Reynolds of counsel described as either merits review and not therefore grounds of jurisdictional error or had been covered by what was put by the Tribunal in its s.424A letter.

Ground 1

  1. The first ground was that in assessing his specific case the Tribunal failed to take into account the special conditions in China, including his contact with his wife and his family members in China. I am quite satisfied that is an attempt to cavil at the Tribunal's factual findings and it is in fact an attempt at merits review. 

  2. Accordingly, that is not a matter in which a Court conducting judicial review can or should interfere.  That ground is not made out. 

Ground 2

  1. Secondly, the Applicant claimed that as an applicant for refugee status he is a total stranger in Australia and has no understanding of the local legal system. When he dealt with the Department of Immigration & Citizenship and the Refugee Review Tribunal he was nervous and frightened and not used to speaking through an interpreter.

  2. That may well be true. Many applicants are not used to speaking through an interpreter and it can be a most daunting prospect, just as appearing in an interview before a Departmental officer or attending a hearing of the Refugee Review Tribunal hearing can be daunting for many people.

  3. However, as I have said, there is no evidence that the Tribunal failed to take those matters into account and, in any event, the claim is no more than an attempt at merits review and no jurisdictional error is made out.

Ground 3

  1. The third claim referred to in the Applicant's submission was that the Tribunal used the evidence of his interview with the Departmental officer as a ground to reject his case, that he was not provided with a transcript or information about what he said at the interview.  Indeed, in his statutory declaration forwarded to the Tribunal on 30th January 2009 the Applicant made it clear that he could not remember what he said at the interview and had complained that he had not been given recording tapes or CDs or transcripts of it. 

  2. However, the Tribunal s.424A letter of 16th January 2009 in [1] to [10] set out clearly the particular matters of the Applicant's interview with the Department which were found to be inconsistent or implausible and certainly inconsistent with what he said at the hearing. 

  3. In my view, the inconsistencies were made perfectly clear to the Applicant in the Tribunal s.424A letter. It follows that that ground has not been made out.

Apprehended Bias

  1. That then brings the Court to the complaint of apprehended bias. It was because of that claim having been made and the Applicant's request, which I granted, to tender the compact discs of the Tribunal hearing and have the Court listen to them that brought about, in effect, the reopening of the hearing and the adjourning of the proceedings until today so that that issue could be considered. 

  2. As I said, I have listened to the discs. There are three of them, Exhibits 1, 2 and 3. They were played twice in my Chambers over the past couple of days. It is quite clear from listening to those discs that the Tribunal hearing was conducted by the Tribunal Member in a quiet and calm and very polite manner. 

  3. The Tribunal Member did not raise his voice. He did not speak abruptly or impatiently to the Applicant.  He did not speak in an offensive or an insulting way.  Indeed, Exhibit 1, which is the first disc of the Tribunal hearing, contains an excerpt where the Tribunal Member asks the Applicant about the fact that he appeared to be injured.  The Applicant referred to the fact that he had had an injury at work in Court today where he had not been able to make a workers compensation claim.  Playing the disc showed the Tribunal Member asking the Applicant about the injury, asking if it was a work injury and, more importantly, before the hearing had even started, asking the Applicant if he was "right to give evidence today".  That is hardly the attitude of someone on the part of a Tribunal Member who had approached the matter with a closed mind. 

  4. True it is that the Tribunal Member put questions to the Applicant, queried the claims that were made and indeed raised a concern about a particular document provided by the Applicant and questioned its genuineness. It was that document that was in fact referred to in the Tribunal's s.424A letter at page 73 of the Court Book. Certainly the Tribunal Member questioned the Applicant over a period of some time. The Tribunal did, however, adjourn the hearing so that people could take a break for a few minutes. It is hard to see that there is anything oppressive about the way that the Tribunal hearing was conducted.

  5. The Applicant complained that the hearing was conducted in a doubtful way as if the Tribunal was constantly querying everything that he put. It should be remembered that if the Tribunal had accepted everything about the Applicant's claim on the papers there would not have been a hearing. Section 425 of the Migration Act makes it quite clear that the Tribunal should not invite the Applicant to attend the hearing if it is in a position to grant the application. Section 425 relevantly says:

    (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)  Subsection (1) does not apply if:

    (a)  the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it.

  6. It was this very point that the Full Court of the Federal Court dealt with in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN[13]. In that case Heerey and Kiefel JJ in a joint judgment considered the question of bad faith and where it may manifest itself in the form of actual bias and went on to deal with actual bias, but further and relevantly to this proceeding, their Honours went on at [11] to point out this important fact about Refugee Review Tribunal hearings:

    In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s.425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.

    [13] [2002] FCAFC 431

  7. In my view, having listened thoroughly to the CDs of the hearing, I am not of the view that bias whether actual or apprehended, has been made out. In doing so, I have considered various tests set out in such authorities as Ebner v Official Trustee In Bankruptcy[14], Galea v Galea[15], Vakauta v Kelly[16], Vaitaiki v Minister for Immigration & Multicultural & Indigenous Affairs[17]. 

    [14] (2000) 205 CLR 337 at [6]

    [15] (1990) 19 NSWLR 263

    [16] (1989) 167 CLR 568

    [17] [2003] FCA 114 at [38]

  8. The conduct of a Tribunal itself, which can necessitate the playing of compact discs or other recordings of the Tribunal hearing, has been considered in the well-known case of Re Refugee Review Tribunal; Ex parte H[18] where the test for apprehended bias is set out in [27] and [28] and in such decisions as VFAB of 2002 v Minister for Immigration & Multicultural Affairs[19] and SZEOQ v Minister for Immigration & Multicultural Affairs[20]. 

    [18] (2001) 179 ALR 425

    [19] (2003) 131 FCR 102

    [20] [2006] FCA 1171 at [25]

  9. There is nothing in the recording of the Tribunal hearing that I have heard that shows that the Tribunal Member said anything that would cause a hypothetical layperson who is properly informed about the issues to have formed any apprehension that the Tribunal did not approach the matter with an open and impartial mind. 

  10. Indeed, having listened to the Tribunal hearing, I am of the view that rather than it being the subject for criticism, it stands as almost a copybook example of how a proper hearing should be conducted.  The calm, measured nature of the Tribunal Member reflected to my mind a careful and responsible approach to the conduct of Tribunal hearings.

  11. The Tribunal was mindful of the Applicant's welfare in respect of his apparent injury and giving a break during proceedings, but considered in some detail various aspects of the Applicant's claim and made quite clear or what should have been clear to the Applicant that there were inconsistencies and implausibilities in his  evidence leading to the adverse credibility finding.

Conclusion

  1. I am mindful of the fact that even though the Applicant has had legal advice from a barrister on the RRT legal panel, the Applicant was not legally represented at the hearing on the last occasion or today. 

  2. I am not able to discern any arguable case of jurisdictional error, whether it appears in the Applicant's amended application or was raised in grounds for the first time on the last occasion. The Applicant was properly invited to a hearing under s.425 in more than sufficient time and the Notice of Invitation complied with the requirements of s.425A. There was no breach of s.424A of the Migration Act contrary to the Applicant's claims. Indeed, it seems to have been complied with scrupulously.

  3. There was no procedural unfairness during the hearing of issues being raised for the first time or not being considered in a way that the High Court has noted in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[21].  In short, I find no jurisdictional error. 

    [21] [2006] HCA 63

  4. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. As such, it is not subject to orders in the nature of certiorari or mandamus in any Court on any account. It follows that the application will be dismissed.

Costs

  1. There is an application for costs on behalf of the First Respondent Minister.  This is a matter that was originally set down for half a day.  It was adjourned part-heard when the case was essentially re-opened due to the request by the Applicant to play the CDs of the Tribunal hearing and I acceded to that request. Both the Court and the Minister's lawyers listened to the CDs of the recording at different times and counsel for the First Respondent, quite properly in my view, prepared an outline of submissions directed to the particular ground of apprehended bias that had been raised.  In my view, the sum of $8,400.00 is an appropriate figure in all the circumstances. 

  2. The Applicant says he does not have the money to appeal. That of course is a matter for him.  But if he is in a position where he is short of funds, that is a matter I will consider as far as time to pay is concerned.  

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  15 May 2009


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Cases Citing This Decision

2

WZATR v Minister for Immigration [2019] FCCA 2847
SZNRW v Minister for Immigration [2009] FMCA 1184