SZNNN v Minister for Immigration
[2009] FMCA 876
•7 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 876 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision is affected by bias or apprehended bias – whether the Refugee Review Tribunal made findings of fact that were irrational, illogical and based on unwarranted assumptions. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; pt.8 div.2 |
| Anthony David Craig v The State of South Australia [1995] HCA 58 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Minister for Immigration and Multicultural affairs v Eshetu (1999) 197 CLR 611 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZNNN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1001 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 August 2009 |
| Date of Last Submission: | 20 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ray Turner, Turner Coulson |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1001 of 2009
| SZNNN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 March 2009 and handed down on 24 March 2009.
The applicant claims to be a citizen of Uganda, a supporter of the political party known as the Forum for Democratic Change (“the FDC”) and of Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 6 July 2008 having departed legally from Entebbe Airport on a passport issued in her own name and a tourist visa issued on 3 June 2008.
On 15 August 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 12 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 19 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 23 March 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 28 April 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In her protection visa application the Applicant stated that she lived and worked with her uncle in Kasese and that her uncle was a strong member of the FDC. He strongly campaigned in the two residential elections of 2001 and 2006. The Applicant stated that her uncle involved her “with distribution of flyers, T-Shirts and posters to the party supporters during the 2006 election campaigns.” The Applicant stated that during the elections the Applicant and her uncle were arrested and accused of collaborating with the People’s Redemption Army (“the PRA”), a rebel group fighting against the government of Uganda. The Applicant stated that they were detained and tortured. The Applicant stated that she was raped by two men in the presence of her uncle during that detention. The Applicant stated she was released a day later, although her uncle remained in custody.
The Applicant stated that, on 14 September 2007, she was told that her uncle had escaped and she has never heard from him again. The Applicant stated that, following her uncle’s escape, government security agents arrested her on 25 September 2007 and accused her of aiding her uncle’s escape. The Applicant said she was subjected to further torture in an attempt to get information from her. The Applicant stated that two weeks later she was assisted by one of the guards who let her loose and told her to escape.
The Applicant stated that, following her escape, she trekked through the forest of Kasese and arrived in Fort Portal on 18 October 2007. The Applicant stated that on 12 November 2007 she left Fort Portal secretly and moved back to her village. The Applicant stated that security guards discovered where she was, so her aunt made the necessary travel arrangements to help her leave Uganda and attend the World Youth Day 2008 as a pilgrim.
The Delegate’s decision
On 2 October 2008, the Applicant attended an interview with the Delegate.
On 12 November 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate explored the Applicant’s claims with her at an interview. The Delegate found that her claims were marked with implausibility and inconsistency which led the Delegate not to be satisfied as to the “overall credibility of the Applicant’s claims”.
The Tribunal’s review and decision
On 19 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
In support of her review application the Applicant provided her passport, a map of Uganda, a Uganda travel planner and some information of the FDC from the internet.
On 16 January 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 20 February 2009 to give oral evidence and present arguments.
On 20 February 2009, the Applicant attended a hearing before the Tribunal. The Tribunal explored the Applicant’s claims with her at the hearing and put to her matters of concern it had about various claims and noted her responses.
In particular, the Tribunal put to the Applicant that her claims were “extremely similar to those of her sister”. In its decision record, the Tribunal identified those aspects of the Applicant’s claims that it found to be similar to those of her sister. The Tribunal found that it seemed “highly implausible that the sisters had experienced these similar events at the same time.”
The Tribunal found that the Applicant appeared to be unfamiliar with the slogan of the FDC with which she claimed to have been involved.
At the hearing, the Tribunal put to the Applicant that there were elements of her account that were hard to accept, such as: her apparent lack of familiarity with the FDC; the apparent failure of the authorities to look for the Applicant at the home of her relatives; and, the similarity of her story to that of her sister. The Tribunal noted the Applicant’s responses and said that it would write to the Applicant giving her a further opportunity to comment on those matters.
On 20 February 2009 the Tribunal then wrote to the Applicant inviting her to comment on information it identified that may be part of the reason that it may affirm the decision under review (“the s.424A Letter”). On 16 March 2009, the Applicant responded to the Tribunal’s letter and the Tribunal noted the Applicant’s responses in its decision record.
The Tribunal ultimately did not believe the Applicant and comprehensively rejected all her claims. The Tribunal found the Applicant’s explanations of concerns that it put to her to be unsatisfactory and was not satisfied that she has a well-founded fear of persecution in Uganda for a reason of her political opinion or imputed political opinion or for any other Convention reason.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented at the hearing before this Court by her solicitor, Mr Turner.
At the commencement of the hearing, Mr Turner sought leave of the Court to file an amended application and submissions in support. By consent, that leave was granted. The grounds of the amended application are as follows:
“1. The Tribunal’s decision is affected by apprehended bias
PARTICULARS
a.the Tribunals decision was based on reasoning which was irrational, illogical and based on unwarranted assumption
b.the Tribunal misrepresented and exaggerated the Applicants evidence
c.the Tribunal failed to acknowledge that it had the Applicant’s sister’s file(s) before it
2.The Tribunal’s reasoning was irrational, illogical and based on unwarranted assumptions
PARTICULARS
a.a fair reading of the evidence before the Tribunal does not support the Tribunal’s findings.”
The Applicant’s solicitor tendered two documents in support of the Applicant’s claims before this Court. The first document was a protection visa application in the name of the Applicant’s sister. That document was marked Exhibit 1A. The second document was a copy of the Refugee Review Tribunal’s decision record in respect of the sister’s application for review. That document was marked Exhibit 2A. Exhibit 2A made clear that the same Tribunal member reviewed the Delegate’s decisions in respect of each of the Applicant and her sister. Both decisions were dated 23 March 2009.
At the heart of Mr Turner’s submission to this Court on behalf of the Applicant was a contention that the Tribunal, having conducted the Applicant’s sister’s review, formed a view that the similarity between the claims of the Applicant and those of her sister led the Tribunal to form a view that coloured the Tribunal’s consideration of the Applicant’s claims and evidence. Mr Turner submitted that, having formed that view, the Tribunal then misrepresented or exaggerated the Applicant’s claims in his decision record to fit in with this view.
Mr Turner identified the Tribunal’s misrepresentations of evidence as follows:
i)The Tribunal’s description of a statement in the Applicant’s response to the Tribunal’s s.424A Letter as “new claims.”
ii)The Tribunal’s statement that a “kindly guard” helped the Applicant escape from detention; whereas the Applicant had told the Tribunal at the hearing that she had to beg and bribe the guard who assisted her to escape although he did seem “a bit more human than the others.”
iii)The Tribunal’s statement that the Applicant’s account of events was “extremely similar, in its broad outline, to that of her sister”; whereas a fair reading of the Tribunal’s decision record and the evidence before the Tribunal did not support such a finding.
In support of ground 1, Mr Turner contended that because of the misrepresentations, or one of them, a fair minded lay person may think that the Tribunal had failed to bring an open mind to its consideration of the Applicant’s claims.
In support of ground 2, Mr Turner submitted that the Tribunal’s findings and conclusions were irrational, illogical and based on unwarranted assumptions thereby constituting jurisdictional error. Again, the particulars in support of those submissions were the same as those misrepresentations at paragraph 34 above.
In support of his submissions, Mr Turner referred the Court to:
a)Anthony David Craig v The State of South Australia [1995] HCA 58 per the court at [14]:
“…If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
b)Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Gummow and Hayne JJ at [38]:
“…but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.”
c)WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437 per Lee and RD Nicholson JJ at [54]:
“The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it…”
I shall first deal with the alleged misrepresentations or exaggerations of evidence. In considering Mr Turner’s particulars of alleged misrepresentations and exaggerations, the question for this Court is, whether or not the Tribunal’s characterisation and findings were open to it on the evidence and material before it.
i) “New claims”
In describing the Applicant’s statement in her response as “new claims”, the Tribunal stated as follows:
“The Tribunal has considered the applicant’s explanation for the similarities between the claims made by her and her sister, however, it does not accept the proffered explanation, which, firstly, relies on new claims not previously made, namely that the applicant and her sister were both active supporters of the FDC who took a leading role in FDC activities. The applicant previously stated that she was hardly involved with the FDC at all, but merely assisted her uncle.” (emphasis added)
In relation to the Tribunal’s finding that the Applicant made “new claims” in her response to the Tribunal’s s.424A Letter, one must consider the totality of the evidence and material before the Tribunal.
In her protection visa application, the Applicant stated clearly that it was her uncle that was the active member of the FDC and that he involved her in the distribution of flyers, T-Shirts and posters during the 2006 election campaign.
At the interview with the Delegate, the Applicant said that she was asked about her involvement in her uncle’s campaigning for the FDC. The Delegate noted that the Applicant replied that for one week she took over distributing the flyers and T-Shirts to FDC supporters who came to her uncle’s hardware store when her uncle went on a business trip in February 2006. The Delegate noted that it was put to the Applicant that her activities and that of her uncle appeared to be as quite minor supporters of the FDC and that such a low level of involvement in campaigning for the party seemed disproportionate to the actions the Applicant claimed the government took against her uncle and herself. The Delegate noted that the Applicant responded that their support for the party did not appear minor to the government.
The Tribunal noted that, at the Tribunal hearing, it asked the Applicant about the FDC and found her to have a lack of knowledge of information about the FDC. The Tribunal put its concerns to the Applicant in the s.424A Letter. The Tribunal noted in its decision record the Applicant’s response that she and her sister “were both supporters of the FDC and… took a lead in the campaign and every political activity for the FDC in my village.” (emphasis added)
Mr Turner submitted that to describe the Applicant’s response about her involvement with the FDC as “new claims” misrepresented her response. Further, Mr Turner also submitted that the Tribunal left out of its statement referred to above at paragraph 39 that the Applicant’s activities with the FDC were limited to “in my village”. Mr Turner submitted that such an omission also misrepresented the Applicant’s response.
In relation to the Applicant’s response, the Tribunal stated as follows:
“The Tribunal has considered the applicant’s written explanation in the s.424A response for her apparent lack of knowledge of information about the FDC. The Tribunal accepts that, while it is possible that party membership cards or letterhead are not commonly used, a person with the level of involvement claimed by the applicant (either the lower level claimed in the protection visa application and at the hearing, and certainly the more extensive activity described in the s.424A response) would be aware of the FDC slogan and symbol. The Tribunal does not accept that these would only appear on the website for the benefit of overseas supporters of the FDC, but would not be known to supporters involved with the distribution of party materials inside the country. In these circumstances, and in view of the applicant’s overall lack of credibility, the Tribunal does not accept that she was an actual or imputed supporter of the FDC, or that she has a well founded fear of persecution for that reason.” (emphasis added)
The Tribunal’s decision record makes clear that the Tribunal appreciated that the Applicant was limiting her activity to conduct in her village. The Tribunal’s decision record quotes in particular that part of her response in the ‘Claims and Evidence’ section of its decision.
The paragraph in its decision record where the Tribunal characterises the Applicant’s response as “new claims” and omits the reference to “in my village” is to be fairly read as a summary of the evidence upon which the Tribunal was relying in not being satisfied that the Applicant was a supporter sufficiently involved in the FDC such that she was an actual or imputed supporter of the FDC or has a well-founded fear of persecution for that reason.
The Applicant had not before referred to her sister at all prior to her post hearing written response to the Tribunal’s s.424A Letter. Moreover, the Applicant’s evidence of her and her sister’s involvement with the FDC in her written response to the s.424A Letter as active FDC supporters who took leading roles was in contradistinction to her oral evidence to the Delegate and the Tribunal and her written claims in her protection visa application.
A fair reading of the Tribunal’s decision record does not support the allegation that the Tribunal misrepresented or exaggerated the Applicant’s evidence of her involvement in the FDC as it emerged first from her written claims in her protection visa application through to her oral evidence to the Delegate, then to the Tribunal and finally in her written response to the s.424A letter.
In the circumstances, it was open to the Tribunal on the totality of the evidence and material before it to characterise or describe the Applicant’s information in her response to the s.424A Letter in relation to her and her sister’s activities with the FDC, as “new claims”.
“kindly guard”
In relation to Mr Turner’s contention that the Tribunal misrepresented the Applicant’s evidence in describing the guard that allowed her to leave as “a kindly guard”, the context in which that statement is made by the Tribunal is “that both were helped to escape from detention by a kindly guard”. The assistance each sister had from a guard to escape was one of the similarities that the Tribunal found in respect of the sisters’ claims.
Mr Turner submitted that the Applicant’s oral evidence to the Tribunal made clear that the Applicant claimed that she had to beg and bribe the guard to allow her to escape and that at its highest, she described the guard as “a little bit more human than the others.” However, Mr Turner’s submission ignores the fact that in the Applicant’s written claims there is no mention of her begging and bribing the guard to allow her to escape.
The sister’s claims in her protection visa application state that “one female guard sympathised with me and she helped me escape on 14 December 2007.”
In the circumstances, having regard to the totality of the evidence and material before the Tribunal, it was open to the Tribunal to characterise the sisters’ escapes as having been facilitated by “a kindly guard”. I accept the submission of counsel for the First Respondent that to read anything further into the use of that description by the Tribunal is to approach the Tribunal’s reasons with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J).
Similarities in the sisters’ claims
Mt Turner submitted that a fair reading of the evidence and material before the Tribunal does not support the Tribunal’s finding that the Applicant’s claims were similar to that of her sister and were therefore false. The Tribunal addressed the possibility that one or other of the claims made by the sisters may be correct. However for reasons it gave, it was not persuaded that the Applicant’s account was plausible.
In relation to the similarities in the sisters’ claims:
a)The Applicant’s uncle was said to be an active member of the FDC in Kasese; the sister’s fiancé was said to be an active member of the FDC was in Gulu;
b)The Applicant’s uncle accused of collaborating with the PRA; the sister’s fiancé was accused of collaborating with the Lord’s Resistance movement;
c)The Applicant was arrested on 25 September and escaped shortly thereafter and was assisted by an aunt to come to Australia; the sister was arrested very shortly after 4 October 2007 and then escaped a week later;
d)The Applicant’s sister stated she escaped and went to an uncle; whereas the Applicant claimed she escaped and went to an aunt;
e)Both sisters somehow obtained passports and arrived in Australia on the same day both attending the World Youth Day.
A fair reading of the totality of the evidence and material before the Tribunal support the Tribunal’s finding that the Applicant’s claims were “extremely similar, in its broad outline, to that of her sister”,. In relation to the relevant similarities the Tribunal stated as follows:
“…the relevant similarities in the claims of the two sisters lie not in their claimed political activity, but rather, in the critical incidents which they say led to their departure, namely: both claim to have lived in rural Uganda; both claim that the person with whom they lived supported the FDC; that those persons were suspected by the security authorities of supporting a militant guerrilla group (different in each case); that they were detained but escaped from detention; that they were each detained as a consequence and questioned as to the whereabouts of their associate; that both were helped to escape from detention by a kindly guard; that both then hid with different relatives in different parts of the country, and these relatives facilitated the obtaining of visas to travel to world Youth Day.”
In the circumstances, it was open to the Tribunal to find that the events referred to are sufficiently similar that they cannot be explained away on the basis only that the sisters had similar political views and were therefore treated the same way by the government; or that the accounts are similar because the events represented a common pattern of human rights abuses in Uganda; or because they were both able to escape in similar circumstances because guards are easily bribed. The Tribunal specifically considered those possibilities and found that it was “far fetched and improbable in the extreme that the two sisters would find themselves in such similar, yet unrelated, circumstances, at the same time, and in the lead up to an event which would enable them to leave Uganda. The Tribunal has considered the possibility that one of the sister’s accounts may be true, but finds the account of this applicant problematic and implausible in other respects.”
The Tribunal went on to identify those other aspects of the Applicant’s claims with which it had difficulties and concluded that the Applicant’s evidence and explanations were implausible.
The Tribunal appears to have been particularly concerned at the development in the Applicant’s claims to seek to explain the similarities in her claims with those of her sister when the Tribunal put its concerns to the Applicant in the s.424A Letter. The Tribunal stated as follows:
“In any case neither the applicant’s nor her sister’s claims were initially put squarely on the basis that they were supporters of the FDC or that they came from an FDC family. To claim at this late stage that they were does not serve to explain the relevant similarities in their respective accounts.”
Whilst there may be an innocent explanation for these coincidences, it was open to the Tribunal to find that the coincidences were of sufficient concern to lead to the adverse conclusions that the Tribunal made, particularly, where the Applicant did not seek to rely on any evidence from her sister as corroborative of her claims or call her sister as a witness in support of her claims before the Tribunal.
Counsel for the First Respondent, Mr Smith, submitted that a fair reading of the claims of the Applicant and her sister would lead a fair minded reader to conclude that they supported each other. However, neither sister sought to call the other as a witness to support her claims. Nor did either sister refer in any way to her sister’s predicament as corroboration for her own.
Mr Smith submitted that the Tribunal’s finding that the similarities in the claims caused it to disbelieve both stories was not based on reasoning that was irrational and illogical.
Mr Smith submitted that if the Applicant herself did not think that her claims supported those of her sister and vice-a-versa, why would one expect a fair minded reasonable bystander to have a different view.
Mr Smith thereby submitted that the Applicant’s allegation of apprehended bias fails on that ground. I agree.
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per Von Doussa J).
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72] per Gleeson CJ and Gummow J and [127] per Kirby J).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J).
Moreover, I accept the submission of counsel for the first Respondent that it is difficult to conclude that a fair minded bystander would consider the similarities in the sister’s claims as corroborative of each other where neither of the sisters did.
Accordingly, the allegation of bias or apprehended bias is rejected.
For the same reason, I do not accept the Applicant’s submission that the Tribunal’s finding was based on reasoning that was irrational or illogical or based on unwarranted assumptions. Disagreement with the Tribunal’s process of reasoning on an issue of fact does not inevitably lead to the conclusion that the reasoning is so unreasonable that no reasonable person could adopt it (Minister for Immigration and Multicultural affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
In the circumstances, the Applicant’s complaint that the Tribunal’s findings were illogical, irrational and based upon unwarranted assumptions is no more than a disagreement with the Tribunal’s findings of fact. Such a disagreement invites merits review which this Court cannot undertake (Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
I shall deal briefly with ground 1(c). The Tribunal decision record makes clear that the Tribunal put to the Applicant, both at the hearing and in the s.424A Letter, that her claims were “extremely similar to those of her sister”. The Tribunal particularised this information and in its s.424A Letter explained the relevance. What the Tribunal was required to give to the Applicant was information that may be part of its reasons for affirming the decision under review. This it did. There was no broader obligation on the Tribunal as alleged in ground 1(c) to “acknowledge that it had the Applicant’s sister’s file(s) before it.” Neither would its failure to do so in the circumstances of its detailed s.424A Letter giving the Applicant the relevant information and inviting comment, which it considered, support an allegation that the Tribunal approached its task with a mind other than open to persuasion.
Accordingly, none of the grounds of the amended application are made out.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 7 September 2009