SZNPG v Minister for Immigration & Anor
[2009] FMCA 1033
•25 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1033 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – applicant not believed – Tribunal not giving weight to documents submitted after the Tribunal hearing – Tribunal forming a concluded view before the documents were submitted –jurisdictional error found. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.422B, 424A, 425, 430 |
| Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 Singh v Minister for Immigration [2001] FCA 389 |
| Applicant: | SZNPG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1166 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 22 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2009 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal made on 16 April 2009.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1166 of 2009
| SZNPG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 16 April 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the Minister’s written submissions filed on 20 July 2009.
The applicant, a citizen of India, submitted written claims to be a refugee which were set out in his protection visa application (“PVA”): court book (“CB”) 27-29. The applicant claimed to fear persecution as a result of his practice of Christianity. He stated that he was a member of the Baptist church and that he preached Christianity and distributed the Bible. The applicant claimed that as a result of his practice of Christianity he was threatened with death and attacked. The applicant reported the attack to police, and claims to have been arrested and detained for two days. After his release, the applicant stated that his wife, father and child were beaten and his house ransacked by members of the BJP. Following this incident the applicant travelled to Tandoor where he distributed gifts and Christian literature to children, however he was attacked by a group of Hindus, injured and told that he would be killed if he remained in India.
In a decision dated 19 November 2008, the delegate of the Minister refused to grant the applicant a protection visa: CB 38-45. The delegate accepted that the applicant was a Christian and that he was harmed by fanatic Hindus in Andhra Pradesh, however he concluded that this amounted to private persecution and on the basis of independent country information considered that the applicant could obtain effective protection in India and that he could relocate: CB 43-45.
On 18 December 2008, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 46-49.
By a letter dated 2 February 2009, the Tribunal invited the applicant to attend a hearing on 13 March 2009 to give oral evidence and present arguments in support of his case: CB 52-53.
The applicant accepted the invitation to hearing (CB 54) and attended the hearing on 13 March 2009: CB 55. The applicant provided a copy of his passport to the Tribunal: CB 57-63.
Following the hearing the Tribunal sent the applicant a letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The letter outlined what the Tribunal saw as inconsistencies contained in the applicant’s evidence to the delegate at interview and to the Tribunal, regarding when he was baptised, his knowledge of Christianity and the number of times he was gaoled: CB 64-66. In response to the s.424A letter, the applicant forwarded to the Tribunal a copy of his Baptism certificate and a letter from the Australian Indian Christian Fellowship: CB 67-69.
The Tribunal’s decision was made on 16 April 2009. The Tribunal considered the applicant’s claims made to the delegate and the Tribunal and:
a)did not consider it plausible that the applicant could remember when he was baptised at interview with the delegate but could not remember when asked by the Tribunal: CB 79.9;
b)found that the applicant ‘did not display knowledge of Christianity or the Baptist church that is consistent with his alleged exposure to that religion or his alleged exposure to the Bible’. As a result of this finding the Tribunal was not satisfied that the applicant was a Christian or that he had been baptised. The Tribunal considered the Baptism certificate, but was ‘not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence’: CB 80.1;
c)found that the applicant’s evidence in his PVA, to the delegate and to the Tribunal in relation to when and how many times he was gaoled was inconsistent. As a result the Tribunal considered that the applicant was not a credible witness and had not been gaoled: CB 80.6; and
d)found that the applicant did not attend church at the “Glad Trading Assemble of Church” as claimed given his lack of knowledge of Christianity. The Tribunal considered the letter from the Australian Indian Christian Fellowship but found that the letter was not consistent with the applicant’s evidence and stated that the letterhead appeared to be “irregular”. As a result the Tribunal was ‘not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence’: CB 81.1.
As a result of these findings the Tribunal was not satisfied that the applicant was a Christian or that he had suffered any of the alleged harm. Accordingly, he was not a person towards whom Australia owed protection obligations: CB 81.3.
The application
These proceedings began with a show cause application filed on 14 May 2009. The applicant was at that time not legally represented. He subsequently engaged solicitors and they filed an amended application on 23 July 2009. On 16 October 2009 the solicitors notified the Court of their withdrawal from the record. I am satisfied that there has been adequate compliance with the Rules of this Court in that regard.
At the trial of this matter I gave leave for the applicant to rely upon a further amended application filed on 20 October 2009. The grounds in that application are:
1. The Tribunal erred in law by relying on inaccurate and misstated facts in its notice issued to the applicant under Sec 424A of the Migration Act.
Particulars
The Tribunal in its decision (page 78 of CB para 33) states that a notice under 424A was issued. In relation to the first question on baptism the notice reads as below
“1. When you were baptised
At interview with the Department on 23rd Oct 2008 it is recorded that you stated you were baptised at “around 15 years of age”.
At hearing you stated you were [baptised] when you were young, you were not sure how old you were…
This is relevant because the Tribunal may find that it is not plausible that someone who stated when they were [baptised] to the Department could not be sure or not remember when they were [baptised] when asked by the Tribunal.”
The applicant respectfully submits that the requirement to give “clear particulars’ of the relevant information under Sec 424A(1) of the Migration Act 1958 implies that the particulars given must be accurate and must not be misleading or wrong.
In the present case the Tribunal has wrongly stated at the middle of the third paragraph that the applicant “could not be sure or not remember” when he was [baptised], whereas the earlier paragraph of the notice says that … the applicant has answered the Tribunal question by stating that “he was [baptised] when he was young”. The above observation is not only contradictory and misleading but it also makes the statement difficult to understand by the applicant who is unrepresented, thus violating the Sec 424A(1)(b) which requires the Tribunal to “ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review…”
2. The Tribunal made jurisdictional error as it denied procedural fairness and thus erred in law.
Particulars
The Tribunal in its decision (CB 80, para 38) states that “In reaching this conclusion the Tribunal has considered the alleged letter from the Australian Indian Christian Fellowship at Fairfield lodged after hearing and signed on 5th April 2009 stating that the applicant attends Church here… Its letter head also appears to be irregular in that it is fainter than the rest of the text and does not appear to have much space between it and the text. Given the Tribunal’s concerns with the applicant’s knowledge of Christianity it is not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence.”
The applicant respectfully submits that if the Tribunal had doubts about the authenticity or the evidentiary value of the document produced then it should let the applicant know about it so that the applicant would have requested the author of the document to testify or in the alternate the Tribunal itself could have made further enquiries as all the contact details of the author/source of the document is available in the letter head. To find fault with the applicant for the layout of the letter head and the manner in which the author of the document wrote the contents only vindicates that the Tribunal had prejudged the issue and … denied the procedural fairness to the applicant.
In this regard the applicant relies on the decision made in Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16 wherein Lee J with whom Tamberlin J agreed; Dowsett J dissenting, said at [76]:
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding.
The applicant also produced his baptism certificate from India for which the Tribunal in its decision ([CB page] 80 para 35) stated that “The Tribunal has considered the baptism certificate given its concerns that the applicant’s knowledge of his own baptism, it is not prepared to give this document sufficient weight to overcome its concerns with the [applicant’s] evidence”. The applicant respectfully submits that the Tribunal should have expressed the fact that it doubts the evidentiary value of the baptism certificate and should have provided him with an opportunity for the applicant to further prove the authenticity of the document and its contents or in the alternate the Tribunal should have made further enquiries based on details furnished.
Further the above documents are of vital importance and go to the core of the issue that the applicant belongs to Christianity and the fact the [applicant] belongs to the social group which propagates Christianity on account of which the applicant was persecuted.
3. The Tribunal erred in law in arriving at a decision without considering all the claims made by the applicant before the Minister’s delegate including the potential future harm that may be caused to the applicant if the applicant were to return to his home country.
Particulars
The Minister’s delegate in his decision (page 43 CB, para 5) states that “I accept the applicant’s claim he was harmed by fanatic Hindus in Andhra Pradesh. The information provided by the applicant supports the applicant’s claims of extremist attacks against Christians in Andhra Pradesh. I find it plausible that he was one of the victims of these extremists”. The Tribunal, based on minor inconsistenc[ies] in dates of detention while examining the applicant wrongfully rejected the claim of the applicant regarding the harm and disagreed with the Minister’s delegate finding in this regard.
In this regard the applicant respectfully submits he relies on the [judgment of] Dranichnikov v Minister for Immigration (2003) 197 ALR 389 wherein the High Court accepted that the Tribunal had an obligation to deal with the claims made by an applicant and that the failure to do so was a failure to exercise jurisdiction.
Further the Tribunal in its decision did not at any place consider the important aspect o potential harm that may be caused to the applicant if he were to return to the home country on account of the applicant having associated himself with preaching the Christian religion, a separate social group involved in the propagation of Christianity.
Evidence and submissions
I have before me as evidence the court book filed on 17 June 2009.
The applicant did not take up the opportunity afforded him to prepare written submissions but did make oral submissions. He submits that he put before the Tribunal everything that was relevant to the review but that he was not believed. He conceded that the Tribunal had written to him to invite comment on adverse material pursuant to s.424A of the Migration Act but said that he was too distrustful to provide written comments (I understand this to mean that he doubted the impartiality of the Tribunal) and he thought that the provision of additional documents to answer the Tribunal’s concerns would be sufficient.
The Minister’s written submissions were directed to the original show cause application. However, paragraphs 3.4 to 3.6 of those submissions have some continuing relevance:
In relation to the third ground this is a decision to which s.422B applies. The applicant was invited to attend the hearing, by letter dated 2 February 2009, to give evidence. The applicant attended the hearing and the Tribunal raised the concerns it had with his evidence. For example, it raised with him that it may not accept that the applicant was a Christian on the basis of his lack of knowledge of Christianity (CB 77.6); and his inconsistent evidence about when his father was attacked (CB 77.7) and when and how many times he had been in gaol: CB 78.1. As the Tribunal raised with the applicant at the hearing the concerns it had with his evidence, it ensured that he was on notice of the determinative issues on the review. The Tribunal is not required to give an applicant a running commentary upon what it thinks about the evidence that is given.[1]
Further, the Tribunal gave the applicant an opportunity to respond to its concerns in a s.424A letter: CB 64-65. The applicant responded to this letter by sending a baptism certificate and a letter from the Australian Indian Christian Fellowship: CB 68-69. There was no requirement on the Tribunal to offer the applicant a further hearing or provide him with a further s.424A [letter] following the receipt of his documents. The Tribunal had made it abundantly clear to the applicant that it had difficulty believing he was a Christian and he had been given an opportunity to give evidence and provide documents on this issue.[2] For these reasons the third ground is misconceived and cannot be established.
The basis for the Tribunal’s decision was its factual findings concerning the applicant’s lack of knowledge of Christianity and the credibility of the applicant’s claims and his credit as a witness. The Tribunal’s adverse credibility findings were open to it for the reasons given and as findings of fact that fall exclusively within the jurisdiction of the Tribunal to make, should not be disturbed by the [C]ourt.[3]
[1] SZBEL v Minister for (2006) 228 CLR 152 at 48
[2] See Minister for Immigration v SZMOK [2009] FCAFC 83.
[3] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67].
In her oral submissions, counsel for the Minister submitted that no jurisdictional error arises in this case. The Tribunal provided the applicant with clear particulars of its concerns both at the hearing conducted by the Tribunal and in its subsequent s.424A letter. The Tribunal was under no duty to enquire in relation to the additional documents provided by the applicant in response to the invitation to comment and did not need to give weight to those documents because the applicant’s credibility had been effectively destroyed at the hearing conducted by the Tribunal and the applicant did not take up the opportunity afforded to him to comment on the Tribunal’s concerns in writing, other than to provide two additional documents without comment. The Minister submits that the additional documents submitted by the applicant were considered but were discounted in the light of the Tribunal’s overriding credibility concerns.
Counsel for the Minister discounted a query raised by me whether the approach taken by the Tribunal might give rise to an apprehension of bias in circumstances where the Tribunal issued an invitation to comment where it was apparent that the well had already been poisoned at the Tribunal hearing before that invitation to comment had been sent.
Consideration
The applicant asserts a breach of s.424A of the Migration Act, a denial of procedural fairness and a failure to consider all of the applicant’s claims. The applicant attempts to draw a picture of confusion concerning his claims, particularly in relation to his baptism, and asserts that the letter written pursuant to s.424A failed to give clear particulars of the relevant information. I reject that contention. The s.424A invitation relevantly stated (CB 64):
1. When you were baptised
At interview with the Department on 23 October 2008 it is recorded that you stated you were baptised at ‘around 15 years of age’.
At hearing you stated you were baptised when you were young, you were not sure hold old you were, however your father said you had been baptised. When asked if you were a baby when you were baptised, you stated you did not remember.
This is relevant because the Tribunal may find that it is not plausible that someone who stated when they were baptised to the Department could not be sure or not remember when they were baptised when asked by the Tribunal. This may lead the Tribunal to find you are not credible and have not been baptised.
In my view, the particulars of the information given by the Tribunal and the significance of the information were clear. The applicant is simply now seeking to comment on the inconsistency identified by the Tribunal in terms which he could have put to the Tribunal in response to the s.424A letter but did not.
I accept the Minister’s characterisation of this case as one in which the applicant’s credibility had been rejected at the time of the Tribunal hearing. There is a question whether it was necessary or appropriate for the Tribunal to issue the s.424A invitation in circumstances where the applicant’s credibility had been rejected at the Tribunal hearing, having regard to his inconsistent evidence and his lack of knowledge of Christianity. The difficulty is that in those circumstances it is reasonable to assume that nothing the applicant could have said in response to the s.424A invitation would have made any difference. Indeed, that may have been a factor in the applicant’s failure to comment in response.
In my view, while the invitation issued may not have served a useful purpose, in circumstances where the Tribunal considers itself to be under an obligation to issue such an invitation, having regard to the requirements of the procedural code under which the Tribunal operates, the issuing of the invitation to comment cannot and should not be used against the Tribunal to support an allegation of jurisdictional error by reason of that fact alone. However, that is not the end of the matter. If the Tribunal is under a duty to invite comment pursuant to s.424A it is also under a duty to consider what it receives in response to its invitation. That consideration requires an active intellectual process. The absence of an active intellectual process of consideration may itself be a jurisdictional error[4]. The peremptory rejection of information provided in response to an invitation to comment also leaves the Tribunal open to accusations of pre-judgement: ie bias. These issues can conveniently be considered in the context of the second ground of review.
[4] Singh v Minister for Immigration [2001] FCA 389
The second ground relates to the two documents the applicant submitted to the Tribunal in response to the invitation to comment. Those documents are reproduced on pages 68 and 69 of the court book. The first documents purports to be the applicant’s baptismal certificate prepared on 19 May 1994 and verifying that the applicant was baptised by full immersion on 20 March 1979. The second document from the Australian Indian Christian Fellowship at Fairfield purports to certify that the applicant is a member of that congregation.
It is obvious from the Tribunal’s reasons that the provision of those documents by the applicant did not allay the Tribunal’s credibility concerns and, indeed, in relation to the second document, it added to them.
In relation to the issue of baptism, the Tribunal said (CB 79-80):
At interview with the Department on 23 October 2008 it is recorded that the applicant stated he was baptised at ‘around 15 years of age’ however at hearing he stated he was baptised when he was young, he was not sure how old he was, he did not remember if he was a baby, however his father said he had been baptised. After the hearing, the applicant provided the Tribunal with an alleged baptism certificate, stating that he had been baptised on 20 March 1979 (that is when he was 15). The Tribunal finds that it is not plausible that someone who stated when they were baptised to the Department could not be sure or not remember when they were baptised when asked by the Tribunal. At hearing, the applicant stated he was Baptist. He was not aware if his church originated from overseas and he was not aware of any other Baptist groups in Andra Pradesh. Although the applicant did state one miracle that Jesus performed at hearing, he was not able to state more. When asked what events he celebrated during the year, he stated Christmas on 25 December and fasting. When again asked if he celebrated anything else, he stated he had lots of meetings. It was put to him there was a really important day in the Christian calendar which was celebrated each year. He stated that was when Jesus came back however he did not know the name of that event. The Tribunal finds that at hearing the applicant did not display knowledge of Christianity or the Baptist church that is consistent with his alleged exposure to that religion or his alleged exposure to the Bible. This means that the Tribunal is not satisfied that the applicant is Christian or has been baptised. The Tribunal has considered the baptism certificate given its concerns with the applicant’s knowledge of his own baptism, it is not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence.
The Tribunal was not satisfied that the applicant had been baptised even though he provided documentary evidence of baptism. The Tribunal did not find that the documentary evidence was a fabrication. It simply did not give the document “sufficient weight” to overcome its concerns with the applicant’s evidence. The Tribunal’s reasoning is problematic in that it fixes on what the Tribunal saw as an inconsistency in the applicant’s oral evidence (which might have been explicable) rather than documentary evidence of baptism. There is a want of logic in the Tribunal’s reasoning. There was no necessary inconsistency between the applicant telling the delegate that he was baptised “around 15 years of age” and him telling the Tribunal that he was baptised “when he was young” – but that he was not sure of his age. It is apparent that at the hearing the Tribunal asked the applicant if he was baptised when he was a baby. The applicant could not remember. That is unsurprising. The applicant had been told by his father that he had been baptised in his youth but he had no knowledge of whether he had been baptised in infancy. He might have been baptised twice. There was no necessary inconsistency. On its face the baptism certificate furnished in response to the Tribunal’s invitation to comment provided a complete answer to the Tribunal’s concern. Yet the Tribunal, by not giving weight to the document, effectively disregarded it.
I find the Tribunal’s approach on the issue of baptism to be troubling. It would have been open to the Tribunal to find, on the basis of the documentary evidence of baptism, that the applicant had been baptised in his youth but to reject his claims that he has been a practising Christian more recently. It is difficult to understand why documentary evidence of baptism does not carry sufficient weight to overcome concerns with the applicant’s oral evidence as to when he was baptised, at least where there is no attack on the authenticity of the document. The Minister’s answer to that concern is that because the applicant’s credibility had been destroyed at the Tribunal hearing, the Tribunal did not have to pay regard to further documents provided by him.
The applicant raises this issue as an issue of procedural fairness and suggests pre-judgement, which amounts to a suggestion of an apprehension of bias. I do not see this as an issue of compliance with the statutory code of procedure. The Tribunal met its obligations to provide the applicant with a fair hearing under s.425 of the Migration Act (by ensuring that the applicant understood the issue of his credibility on which the review would turn) and the Tribunal met any additional obligation it had to invite comment pursuant to s.424A by inviting comment on the particulars of the Tribunal’s concerns. The applicant had the opportunity to comment on the Tribunal’s concerns about his evidence and provided documents but no comment. The Tribunal met its obligations under the procedural code. The applicant contends that he should have been given a further opportunity to make submissions about the additional documents provided. In Minister for Immigration v SZKTI[5] at [51] the High Court considered the circumstances in which an additional hearing might be required in circumstances like the present. The need for a further hearing opportunity will only arise where there is a new issue – not when additional evidence is furnished in relation to an extant issue. I think this case is indistinguishable and no further hearing opportunity was required: see also Minister for Immigration v SZMOK[6].
[5] (2009) 258 ALR 447
[6] (2009) 257 ALR 427
The issue is one of procedural fairness under the general law. The review process under the general law will not be fair where there is an apprehension of bias. Section 422B of the Migration Act provides no protection against an allegation of bias. In my view, the Tribunal did demonstrate pre‑judgement by refusing to give weight to the documentary evidence of baptism submitted by the applicant. In many circumstances that would be sufficient to establish a reasonable apprehension of bias. There is, however, an exception in a case where the well has already been poisoned before the additional material was submitted. The Minister submits that the Tribunal regarded the applicant as a person of no credibility following the hearing on 13 March 2009. In Re Minister for Immigration; ex parte Applicant S20/2002[7] at [49] their Honours McHugh and Gummow JJ said:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
[7] (2002) 198 ALR 59
The issue was considered further in WAIJ v Minister for Immigration[8] where the appellant in that case complained that the Tribunal failed to have regard to certain documents because the Tribunal was not convinced that the documents could overcome the difficulties it had with the appellant’s evidence. Their Honours Lee and Moore JJ said at [27]:
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
[8] (2004) 80 ALD 568
The circumstances in which a case falls within the category of “poisoned well” cases identified by the High Court in Applicant S20/2002 are (and should be) confined. The Tribunal needs to make comprehensive findings of untruthfulness against an applicant in order to avoid having to grapple with corroborative evidence bearing upon the credibility of the applicant. While I accept the Minister’s submission that the Tribunal formed the view, after the hearing conducted by it, that the applicant’s claims lacked credibility, and those concerns were expressed in the letter sent to the applicant pursuant to s.424A, there is a real difficulty in this case that there were no comprehensive findings of untruthfulness against the applicant in the Tribunal’s reasons for its decision. Indeed, it is hard to identify in the Tribunal’s reasons any finding at all of untruthfulness against the applicant. The closest the Tribunal gets to such a finding in its reasons is a finding at [37] (CB 80) that the applicant was not credible in connection with his claim about the number of times he was put in gaol. Further, the Tribunal’s decision is internally inconsistent. At that point (dealing with how many times the applicant was put in gaol) the Tribunal states that it had found that the applicant is not a Christian, but that was not what the Tribunal found. In dealing with that issue at [35] (CB 80) the Tribunal simply found that it was not satisfied that the applicant is a Christian or had been baptised. It made no positive finding that he was not a Christian and had not been baptised. It made no finding of untruthfulness against the applicant either overall or in relation to that aspect of his claims. Neither did the Tribunal make any adverse finding in relation to the baptismal certificate. It simply stated that it was “not prepared” to give the document “sufficient weight” to overcome its concerns with the applicant’s evidence. The Tribunal gives no reasons as to why it was so unwilling. While the allocation of weight to particular evidence is a matter for the Tribunal, the Tribunal must engage in an active intellectual process. It cannot simply make an unexplained reference to weight in relation to a document which, on its face, provided a complete answer on an issue of substance.
In my view, by failing to deal in any meaningful way with the corroborative evidence of the baptismal certificate on the issue of whether the applicant had been baptised, the Tribunal fell into jurisdictional error. In the absence of comprehensive findings of untruthfulness against the applicant, which the Tribunal did not make, the Tribunal needed to deal in a meaningful way with that document.
In relation to the second document, the Tribunal relevantly found (CB 80-81):
At hearing the applicant stated he went to Glad Trading Assemble of Church about a month or two after he came to Australia but did not go regularly because he lived in Blacktown and the Church was in Liverpool. The Tribunal finds that given his lack of knowledge of Christianity, it is not satisfied he has attended even for the periods claimed. In reaching this conclusion the Tribunal has considered the alleged letter from the Australian Indian Christian Fellowship at Fairfield lodged after hearing and signed on 5 April 2009 stating that the applicant attends Church there. This letter is not consistent with the applicant’s own evidence at hearing which is that he was attending another Church but did not go regularly. Its letterhead also appears to be irregular in that it is fainter than the rest of the text and does not appear to have much space between it and the text. Given the Tribunal’s concerns with the applicant’s knowledge of Christianity it is not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence.
In this case, the Tribunal did have concerns about the document provided and explained them. The explanation is, to say the least, curious, as the document reproduced at CB 69 does not on its face appear to be a fabrication. The letterhead is fainter than the text presumably because it is a photocopy of an original in which the letterhead is printed partly in a colour other than black. The reference to the lack of space between the letterhead and the text of the letter is completely mystifying. The Tribunal does point out that the document on its face was inconsistent with the applicant’s oral evidence in that he said he attended a different church. But the flavour of the Tribunal’s reasons is suggestive of a decision maker searching for reasons to avoid having to deal with a material document.
This raises an issue of whether the Tribunal decision is vitiated by a reasonable apprehension of bias. The test for apprehended bias was established by the High Court in Ebner v Official Trustee in Bankruptcy[9] at [6] and reiterated in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[10]. The test is generally put as formulated in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ[11]:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[9] [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277
[10] [2006] HCA 55
[11] Ebner v Official Trustee in Bankruptcy at [8]
The test was modified slightly in relation to the Tribunal in Re Refugee Review Tribunal; ex parte H[12] at [28]:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[12] (2001) 179 ALR 425
The Full Federal Court recently restated the relevant principles in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd[13] at [70]-[74]. At [70] Greenwood J (with whom Emmett J agreed) said:
| The basic principle upon which the common law system of adversarial trial rests is that the Tribunal is independent and impartial. So important is the principle that even "the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7], per Gleeson CJ, McHugh, Gummow and Hayne JJ ("Ebner")). The apprehension of bias principle finds expression in this test (Ebner at [6]) (leaving aside any question of waiver or necessity): |
... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[13] [2009] FCAFC 8
As noted above, in considering an issue of an apprehension of bias, two steps are required. The first is the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits and secondly, the articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits[14]. The test is an objective one based upon the consideration of a hypothetical fair-minded lay observer. The observer is taken to be “reasonable”, and must be neither complacent nor unduly sensitive or suspicious.
[14] See Ebner v Official Trustee in Bankruptcy at [8]
In the present case, the s.424A letter sent by the Tribunal on 16 March 2009 identified three areas of the applicant’s evidence about which the Tribunal was concerned. These were when he was baptised, his knowledge of Christianity and how many times he had been in gaol. The applicant was put on notice that the Tribunal might find that his evidence was not credible and that he was not a Christian, which might lead the Tribunal to conclude that he had not suffered any of the harm he had alleged. On the basis of the oral submissions made by counsel for the Minister, this letter was reflective of a concluded view by the Tribunal as to the applicant’s lack of credibility which was so comprehensive that it relieved the Tribunal of the need to consider any corroborative evidence that might be advanced subsequently. However, as I have already pointed out, the Tribunal in its ultimate reasons, was unwilling to characterise the applicant as being wholly untruthful so as to place the case within the parameters of the “poisoned well” class of case identified by the High Court in Applicant S20/2002. Having declined to so characterise the case, the Tribunal needed to engage in an active intellectual process of considering the corroborative material produced in response to the invitation to comment so as to avoid the apprehension that the Tribunal’s mind was prejudiced. This the Tribunal failed to do. First, it failed to engage in any meaningful consideration of the purported baptism certificate which, on its face, provided a complete answer to the Tribunal’s concern about the applicant’s evidence as to when he was baptised. Secondly, the Tribunal appeared to be searching for reasons to discount the letter from the Australian Indian Christian Fellowship in order to avoid engaging with the proposition that the applicant might have become a practicing Christian in this country. The technical basis upon which the Tribunal sought to justify discounting that letter was not only unconvincing but was, in part, inexplicable.
The combination of the Tribunal’s unwillingness to make comprehensive findings of untruthfulness against the applicant, its unwillingness to engage in a proper consideration of the corroborative evidence advanced on his behalf and the Tribunal’s apparent determination to adhere to its view that the applicant had never been baptised and was not at any stage a Christian, in my view supports a conclusion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias would apprehend that the Tribunal may not have brought an unprejudiced mind to bear on its decision.
The applicant contends that the Tribunal should have made further enquiries about the documents. I reject that contention. The Tribunal might have made further enquiries about the documents submitted by the applicant but the mere fact that it did not do so does not point to jurisdictional error[15].
[15] Minister for Immigration v SZIAI [2009] HCA 39
There is no substance in the third ground of review. The Tribunal, having not accepted the applicant’s factual claims to have been a practising Christian in India, did not need to make a forward looking assessment of the risk he might face in India as a practising Christian. In this ground, the applicant is simply cavilling with the merits of the Tribunal decision.
In view of my finding of apprehended bias and the Tribunal’s failure to engage in a meaningful consideration of the baptismal certificate, the applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 November 2009
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