SZNSF v Minister for Immigration - [2009] FMCA 1208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1208

MIGRATION – RRT decision – Indian applicants fearing persecution by followers of guru – claim to have been driver of guru disbelieved by Tribunal – procedures followed by Tribunal – no evidence of mistranslating at hearing nor supporting an apprehension of bias – application dismissed.

Migration Act 1958 (Cth), s.427

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195
Perera v MIMA (1999) 92 FCR 6
Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal & Anor; Ex Parte H [2001] HCA 28
SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

First Applicant:

SZNSF

Second Applicant:

SZNSG

Third Applicant:

SZNSH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1542 of 2009

Judgment of:

Smith FM

Hearing date:

24 November 2009

Delivered at:

Sydney

Delivered on:

24 November 2009

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1542 of 2009

SZNSF

First Applicant

SZNSG

Second Applicant

SZNSH

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicants are a husband, his wife, and their very young son, who arrived in Australia in August 2008. On 26 September 2008, they applied for protection visas assisted by a registered migration agent. Although all three put themselves forward separately as refugees, it became clear from the nature of their claims, and was conceded by the wife before the Tribunal, that their claims to be refugees relied upon acceptance of the history claimed by the husband. I shall, therefore, refer to him as, “the applicant.”
A statement attached to his application said that he was a Sikh, who in 2004 had joined a religious organisation run by a religious leader or ‘guru’, which was which was based in Haryana. He said that “after I joined the organisation …I was offer a job for driving the car of (the guru)”. He claimed to have been the personal driver of the guru until July 2008. He said:
Basically this man is a gangster in holy robes. Whole time while I was running I knew most of his secrets as I was his personal driver. He has so many dangerous people with him, most of them are involved in drugs or army ammunition dealing.
The applicant referred to an allegation that the guru had raped a woman in June 2007, and to other notorious circumstances in which the guru incurred the anger of Sikhs when he “tried to do like the 10th master of Sikhs, Guru Gobind Singh did 300 years ago” by dressing and acting like that guru. The applicant said:
Many Sikhs tried to attack him for doing the copy of 10 masters of Sikhs…In March 2008, some people attacked on car of (the guru) which I was driving. Bullets shots were fired on our car and we had a narrow escape from death. From that period I refused to drive his car and gave up my job from him.
The applicant said that he was then threatened by the guru’s men, and was kidnapped in July 2008 and taken in front of the guru, who “insisted me to again remain in his Dera, (organisation) and join job”. When the applicant refused, he was held for two days in a dark room and threatened with death. He only avoided death when he was helped to escape. He said that when he escaped “I was very weak. I even could not walk. I had no power in my body”. When he tried to make a complaint to a police station and seek protection, the police refused to help him because the guru was an influential person. The applicant said he had no option but to hide, and that he then arranged to get a visa to come to Australia.
The applicant presented a short statement by a village official in support of these claims, and two illegible medical records concerning a treatment in July 2008.
The applicant was interviewed by the delegate on 1 December 2008. Complaints about the interview which were later made by the applicant’s agents were rejected by the delegate, who made a decision on 2 December 2008 refusing the protection visa applications. The delegate was not satisfied by the applicant’s responses at the interview that he was “ever in the employ of (the guru)”. The applicant did not have knowledge of the sect and events affecting the guru, which the delegate expected if his story was true. Some of the events concerning the guru were notorious and had been reported in the press, and the applicant appeared not to have any better knowledge.
The applicants appealed to the Refugee Review Tribunal. They did not present further evidence to corroborate their story, but attended a hearing on 18 February 2009. This was preceded by correspondence with the agent concerning the adjournment of this hearing, to which I shall refer below. After the hearing, the agent complained about the refusal of the Tribunal to adjourn the hearing, and about the interpreter provided at the hearing. I shall refer to these matters further below.
After the hearing, the applicant was invited to comment on various concerns which had also been put to him at the hearing orally. A submission in response to these matters was presented by the applicant’s agent, which repeated various concerns, and made an application for disqualification which I shall consider below.
The Tribunal made a decision on 26 May 2009, affirming the delegate’s decision.
In its statement of reasons, the Tribunal carefully set out the claims made by the applicant, and the procedures which had been followed before the delegate and before it. It included a summary of the interview held by the delegate, prepared after listening to the recording. It also set out a lengthy description of the hearing held by it. The applicant has not presented to the Court any transcript or other evidence as to what happened at either the interview or the hearing, and I accept the Tribunal’s description of these. I shall refer to relevant parts of the hearing further below, when I consider the grounds of review. Generally, I note that all the matters upon which the Tribunal subsequently decided the case were very fairly raised with the applicant at the hearing and in the subsequent written invitation for comments.
In its statement of reasons, the Tribunal explained its procedural decisions which had been criticised by the applicant’s agent. I shall extract those parts of its statement below.
In relation to the merits of the refugee claims, the Tribunal said that it “finds that the applicant is not a credible witness and that his story has been fabricated. The Tribunal does not accept that the applicant had any involvement with [the Dera] as a driver and so the Tribunal rejects his claims in their entirety”. The Tribunal then identified significant reasons for arriving at that adverse conclusion.
The first reason was that the applicant had given inconsistent evidence as to when the assassination attempt on the Guru had occurred. His visa statement had claimed that it occurred in March 2008, but at the hearing he referred to it as occurring in July 2008. The Tribunal considered the applicant’s explanation, which was that “he forgot a few things and cannot remember the exact date”. However, the Tribunal did not accept his explanations, and thought that “it is reasonable to expect the applicant to remember such a critical aspect of his claims”. The Tribunal concluded:
The inconsistent evidence concerning this incident leads the Tribunal to conclude the applicant had no personal experience of such an incident, that it is fabricated, and he is not a credible witness.
The Tribunal referred to the fact that the applicant’s passport had been re-issued in April 2008, and thought that this suggested that he was making plans to leave India before the time when he claimed to have decided to flee India.
The Tribunal then referred to the applicant’s evidence concerning other attempts on the guru’s life. There were press reports that the guru had been the subject of a bomb attack in February 2008, and that several other plots to assassinate him had been prevented by police before they occurred. Although the applicant claimed to have a memory of the bomb attack, he said that he thought it had occurred at the end of 2007. The Tribunal had been unable to find any information confirming his claims that there had been other actual attacks on the guru. The Tribunal said: “His placement of the incident in 2007 leads the Tribunal to conclude he did not recall the incident from personal experience”. The Tribunal said that his inadequate testimony concerning other attempts on the guru’s life reinforced the Tribunal’s concerns that he “had no personal experience of driving the guru”.
The Tribunal also found this to be confirmed by the applicant’s knowledge of the Dera, in relation to its history, involvement in Indian politics, and principles. The Tribunal concluded that “the applicant showed basic knowledge of the Dera which reasonably was no more than general knowledge of Sikhs living in Haryana (in light of the widespread condemnation of the Guru by the Sikh community there)”. It said that his general knowledge showed “scant knowledge of the history of Dera including anything about the Sects’ founder”, and he “showed no knowledge of the 47 principles laid down by the current guru”. The Tribunal did not accept the applicant’s submission that he had given satisfactory testimony in relation to its principles, because “he did not enunciate any of the principles which are specific in nature” at the hearing, and “sources indicate that Dera followers take an oath to observe them”. The Tribunal specifically rejected an argument that “the interpreter did not interpret the Tribunal’s questions correctly” at the relevant part of the hearing.
The Tribunal also addressed a contention made by the applicant’s agent, that he had only been employed as a driver. It said:
[77]The Tribunal recognises that the applicant’s claims do not centre on his religious beliefs. Nonetheless, his story is that he had been a believer. A post-hearing submission argues he was brainwashed after he joined the Dera. However, he claims to have developed an interest in the beliefs and aims of [the Dera] before he commenced work for the guru. He states he attended gatherings and listened to speeches concerning their beliefs. According to his narrative he then showed a level of confidence in asking the sect’s leader for a job, which was granted; and remained committed to the sect for a number of years by actually living in the guru’s actual household and personally working for the guru. The applicant’s evidence paints a picture of a person who had an interest in the sect and their beliefs and later an intimate knowledge of the sect and its operations. In this context, his scant knowledge of [the Dera] leads the Tribunal to conclude he did not have the intimate association with the organisation and the guru that he claims: that his story is fabricated and he is not a credible witness.
The Tribunal also referred to the questioning of the applicant by the delegate and by it, concerning press reports that a former driver of the guru had given information to police about the guru’s criminal activities in early 2007. The applicant’s evidence appeared to have changed in relation to his knowledge of this event, and the Tribunal said:
The changing explanations for the applicant’s lack of knowledge at the interview reinforces the Tribunal’s concern with his story and credibility.
The Tribunal considered the documents presented by the applicant. It said that it did not consider that the medical document corroborated his story, because it did not detail how the medical condition came about. It said that:
The applicant is so lacking in credibility that the (witness) statement cannot assist him and the Tribunal gives it no weight.
The Tribunal referred to the applicant wife giving evidence at the hearing which “indicated in a general way that their lives were in danger in India”. However, it said that her testimony did not “add anything to the applicant’s evidence”.
The Tribunal therefore rejected all the claimed history of the applicant husband. It did not accept that he had suffered persecution in India for any Convention reason, nor that he had a well-founded fear of persecution for one or more of the Convention reasons if he returned to India. The Tribunal was similarly not satisfied that the wife or son were refugees, and also found that their claim to a protection visa as secondary applicants would not succeed in view of the conclusion about the applicant husband’s claims.
The applicants now ask the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant husband should be believed, nor whether the family qualify for refugee visas or any other permission to stay in Australia.
The applicants’ grounds presented to the Court are the following:
1.Interpreter did not do a good job (not explaining properly).
2.They didn’t allow call the agent.
3.Decision made before hearing.
These grounds have not been elaborated by way of an amended application, additional evidence to that in the Court Book, nor written submissions. Some basis for the contentions can, however, be distilled from the previous correspondence of the applicants’ migration agent with the Tribunal, and some submissions in support were also made orally today.
Beyond these matters going to procedures, the applicants have not raised any ground of jurisdictional error. I am unable to discern an argument which would locate jurisdictional error in the substantive reasoning of the Tribunal in relation to any of the applicants. I consider that its conclusions were rationally explained, and were open to it on the evidence before it.
The applicants’ first criticism of the quality of interpretation at the Tribunal’s hearing was made after the hearing by the applicants’ migration agent. The Tribunal’s description of the hearing itself contains no complaint being made. To the contrary, at the start of the hearing the applicant is recorded as stating that “he understood the interpreter and had no issues.” Immediately before the end of the hearing, and after allowing the applicant wife to give evidence, the Tribunal said:
The Tribunal then directed comments to the applicant. The applicant confirmed he had understood the interpreter. The Tribunal asked if he had any concerns that the interpreter had not interpreted what he had said. He indicated he had no concerns with the interpretation - it had been said correctly. The Tribunal indicated it had the sense that everything had been interpreted appropriately. The Tribunal indicated it particularly asked as the representative had raised claims about the interview.
After the hearing, the applicants’ migration agent was supplied with the sound recording of the hearing, and was invited to comment on various points. In the agent’s response some criticisms of the interpretation at the hearing were made, without presenting a transcript of the problematic part nor any evidence from an expert interpreter in Punjabi to provide independent support. In particular, in response to the Tribunal’s concern that the applicant “had no knowledge of the 47 principles laid down by the current guru” and “and had shown scant knowledge” of the beliefs of the Dera, the agent submitted at page 4:
I am also told that my client had problems understanding the interpreter and had to ask the interpreter to repeat the question several times. This also happened in the Departmental interview.
My client also informs me that with regard to the 47 principles, he did not understand the interpreter in the hearing and did not understand until this was explained in my office by a qualified NAATI interpreter.
The agent requested at page 7 “that my client be reinterviewed with regard to these principals”.
The Tribunal addressed the agent’s complaints about the quality of interpretation, and rejected them. It said:
[56]After the hearing a submission indicated that the applicant had concerns with the interpretation at the hearing. However, at the start of the hearing the Tribunal advised that if he did not understand a question he should ask the Tribunal to repeat it. At the conclusion of the hearing the applicant indicated he had understood the interpreter and had no concerns with the interpretation. The Tribunal observed that during the hearing the applicant gave testimony without difficulty.
The Tribunal’s description of the relevant part of the hearing is as follows:
The Tribunal asked what were the beliefs of [the Dera])?
He stated they tell the public to mention the name of the creator. The Tribunal asked what else. He stated the main one- remember the name of the creator. The Tribunal indicated his answers raised concerns he did not know the beliefs in any detail. He stated the creator created humans and whatever you believe- Hindu, Muslim, whatever- you must mention the name of the creator and remember him.
The Tribunal indicated [the Dera] website in January 2008 summarised their beliefs:
The reciting of God’s words (divulged by the perfect Saint ie Sant Satguru) and obtaining salvation in return is the True Business or ‘Sacha Sauda’. It aims at the union of soul with its creator, the Almighty. The practical method of meditation is taught without any obligation for attaining salvation during this human life.
The Tribunal indicated he appeared to know scant details of the Dera (named) belief system. He stated it is difficult to express these things sometimes. The main thing is to mention the name of the creator. Mention his name and life will become easier. Life is short and getting shorter.
The Tribunal asked what were some of the 47 principles that followers should follow, laid down by the current guru.
He stated: the same thing- mention the name of the creator- your life is being shortened- what you do here will be left behind. It will help if you keep mentioning his name.
The Tribunal indicated in fact the 47 principles were handed down at a time when he was driving the guru. They included in part: non-violence, meditation, hard work, vegetarianism, charity, abstinence from alcohol. He appeared to have no knowledge of these principles.
He stated he knew about these principles. The Tribunal indicated he had not mentioned them when asked. He stated he went in that direction and repeated the things he said, and he had spoken about saying the name of the creator. They also breath and we need them, as they also breath.
This description of the hearing lends no support to the assertion that the applicant did not understand the Tribunal’s question inviting him to identify “some of the 47 principles”. It rather suggests the contrary, that he understood the question, but was unable to provide more than his previous knowledge of the Dera’s belief system. The Tribunal’s description lends no support that even the first question was misinterpreted, nor for the assertion made by the applicant to me orally today that the word “principles” was misinterpreted as “principals”, meaning persons or leaders. I am not satisfied that the applicant has presented any evidence suggesting that a material misinterpretation occurred at this point of the hearing.

The other contentions made by the applicant’s agent and the applicant about his being misinterpreted are devoid of particulars allowing me to address any particular concern. This ground must fail, in my opinion, based on the lack of evidence of any relevantly defective interpretation (see Perera v MIMA (1999) 92 FCR 6, Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230, VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723, and SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106 at [73])
The applicants’ second ground in their application to the Court complains that the Tribunal “didn’t allow call the agent”. This appears to be based upon the absence of the agent from the hearing, and an assertion that the agent believed that he would be allowed to attend by telephone.
The Tribunal had forwarded to the agent an invitation to attend a hearing on 18 February 2009 in a letter dated 16 January 2009, which is at page 140 of the Court Book. It received a response on 3 February, requesting that “this matter be delayed by at least one month” on the ground that the agent was suffering from an eye problem and “I am being forced to take time off and reduce any strain on my eyes … I will not know the final result until 27 February, when I undertake the second stage of tests”. A medical certificate confirming that the agent had been advised that he was “unfit for work, study, or travel” until

28 February was provided. A formal response to the hearing invitation indicated that the applicants themselves wanted to attend, but wanted to bring their agent to the hearing.
The Tribunal responded to the request for an adjournment by a letter dated 6 February 2009, which is annotated as posted on the 9^th. This informed the applicants and their agent:
The Presiding Member has considered the request carefully but has decided not to postpone the hearing. If your migration agent is unable to attend the hearing, you may care to organise another migration adviser to attend on your behalf.
According to the Tribunal’s description of the hearing, when the applicant attended the hearing without his agent, this was discussed with the applicant. The Tribunal said:
The Tribunal discussed the applicant’s representative attendance. The applicant stated the representative had an eye condition which needed complete rest in a dark room, and that is why he did not come. The Tribunal asked whether he was comfortable giving evidence without the representative present. He stated it was the Tribunal’s decision. The Tribunal asked if there was any reason he could not give evidence and answer questions. He stated he felt empty- no support- without the representative’s presence.
After the hearing, the Tribunal received complaints from the applicants’ agent about its refusal to adjourn the hearing. He also complained that “I was not called to be part of the RRT hearing by phone, which I thought had been agreed”.
The Tribunal addressed these complaints in its statement of reasons:
[53]In a letter dated 6 February 2009 the Tribunal did not agreed to delay the hearing in the representative’s absence. The Tribunal also indicated in that letter that if the representative was unable to attend the hearing, the applicants may care to organise another migration adviser to attend. The applicant attended the hearing without a representative. At the start of the hearing the Tribunal enquired whether the applicant had particular concerns about the hearing proceeding without a representative present. The applicant indicated he would feel empty without the representative’s support. The Tribunal noted that he spoke without difficulty and did not appear overwhelmed by the occasion. After considering his comments, the Tribunal decided that the hearing would proceed. Additionally, at the end of the hearing the Tribunal gave the applicants full opportunity to put their case and the applicant confirmed he had no concerns with the interpretation. The Tribunal is satisfied that the representative’s absence did not prevent or hinder the applicants in giving evidence and presenting arguments.
[54]After the hearing the representative indicated he had not been phoned to be a part of the hearing “which I thought had been agreed as I was unable to attend”. However, such an arrangement would have been inappropriate in a Protection Visa hearing. Regardless, no such arrangement was sought- nor did the Tribunal give such an undertaking either in writing or orally. Indeed, the Tribunal’s letter of 6 February 2009 indicated: “If your migration adviser is unable to attend the hearing, you may care to organise another migration adviser to attend on your behalf”.
Unlike an applicant to the Migration Review Tribunal, an applicant to the Refugee Review Tribunal is given no express right to be assisted by another person when attending a hearing. There is no provision in relation to this comparable to s.366A of the Migration Act. Indeed, s.427(6) provides:
427 Powers of the Refugee Review Tribunal etc.
…….
(6)A person appearing before the Tribunal to give evidence is not entitled:
(a)to be represented before the Tribunal by any other person; or
(b)to examine or cross‑examine any other person appearing before the Tribunal to give evidence.
This provision does not exclude the power of the Tribunal to permit a migration agent or other assisting person to be present at a hearing, but there is no provision of the legislation that gives rise to any expectation that the Tribunal will adjourn the hearing due to the unavailability of an assistant or representative to accompany an applicant at a hearing.
In the present case, there is no persuasive evidence that the Tribunal ever represented to the applicant or his agent that the Tribunal would accommodate the availability of the agent or, in his absence, allow him to attend by telephone. In particular, there is no sworn evidence to this effect from either the applicant or his agent. I therefore have no reason to doubt the factual basis upon which the Tribunal explained its exercise of discretion.
I am not persuaded that the Tribunal’s exercise of its discretion to proceed with the hearing without the presence of the agent miscarried in any way. Tested against the Tribunal’s procedural fairness obligations arising through the terms of s.425(1), I am not satisfied that the Tribunal did not correctly assess that the absence of the agent did not prevent the applicant adequately exercising his opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. In particular, I note that there is no evidence as to how the agent could have assisted the applicant through his presence at the hearing, either in person or on the telephone, in a way that he was not able to assist when advising the applicants before the hearing and when responding later to the written invitation for comments. I am, therefore, not persuaded that ground two of the application has established any jurisdictional error of a procedural nature affecting this Tribunal’s decision.
The applicants’ third ground, that “decision made before hearing”, has been entirely unexplained in any oral submissions of the applicant today. It might appear to rely upon contentions of apprehended bias which the agent had made to the Tribunal in his submission forwarded on 21 May 2009, in which he invited the Tribunal to disqualify itself.
There is no express discussion of that submission for disqualification in the Tribunal’s statement of reasons. However, the Tribunal referred to receiving the submission, and said: “The submission and comments have been fully considered by the Tribunal”. I am not persuaded that the Tribunal failed to consider the disqualification submission. In any event, the Tribunal did proceed to make a decision without being reconstituted, and it now falls to the Court to consider whether the previous events and the points raised by the agent, in fact, might give rise to a relevant apprehension on the part of an informed lay observer.
The test in this respect was identified by the High Court in Re Refugee Review Tribunal & Anor; Ex Parte H [2001] HCA 28 as follows:
[27]The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private
[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.
[29]Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30]Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31]Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
[32]In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
There is nothing on the face of the present Tribunal’s record of its procedures, nor its description of the hearing, which, in my opinion, lends support to any apprehension of bias by way of a prematurely closed mind or other species of bias.
In the agent’s submission to the Tribunal, a number of matters were pointed to in the course of submissions addressing other matters. At page 4, the agent referred to the asserted mistranslation of the Tribunal’s questions concerning “the 47 principles”, and then stated:
It seems that the Tribunal may have made up their mind during or before the Hearing as the second Applicant was only asked a few questions and both have fear of harm on return to India.
Notwithstanding the opening words of this submission, it does not appear to relate to the preceding paragraphs, but to be putting forward a new point.
On the Tribunal’s description of the hearing and in the absence of a transcript, I can find no support for an apprehension of bias based upon the manner in which the Tribunal questioned the applicant wife. She was asked “whether she had claims of her own”, and said “no, it is all her husband’s claims”. The Tribunal then asked her “what she wanted to say about the matter” and recorded her responses.
In the circumstances, an informed lay observer would have concluded that the Tribunal had understood from the evidence of both of the applicants, that they wished the Tribunal to assess the claims of the family based on the applicant husband’s evidence without further evidence in support from the wife. As a matter of law it was up to the applicants to present the Tribunal with whatever claims and evidence they sought to rely upon (cf. Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [1], [28] and [31], NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 [2006] FCAFC 195 at [73]). I do not consider that this contention of the agent lent any support for his disqualification application, nor in the light of the Tribunal’s subsequent reasons is there any such apprehension raised with hindsight.
The agent’s submission did not develop the bias contention at that point, but presented an argument against the Tribunal’s concern that the applicant had shown little knowledge of the history and beliefs of the Dera. The agent argued that the applicant “would not have known anything negative about” the guru because he was “used most of the time for driving”, and “I do not think the Tribunal understands the way these so-called baba’s maintain their power once they get followers in their ashrams”. Based on this line of argument, it was contended “accordingly, the Tribunal should stand down and allow another Tribunal to take over this matter”. It was asserted that the Tribunal’s raising of the issues “show that there is either lack of proper understanding of the situation my client was in, or that the Tribunal has prejudged the matter”.
In my opinion these criticisms of the Tribunal had no proper foundation at the time they were made by the agent, and are not shown now to be support a ground of apprehended bias vitiating the Tribunal’s decision. Contrary to the assertion of the applicant’s agent, in my opinion, an informed lay observer would have thought it entirely appropriate for the Tribunal to test the applicant’s claims of an association with the Dera and its guru against his knowledge of its history and belief system (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [65]).
Contrary to the assertions made by the applicant’s agent in the submission, the applicant had maintained both to the delegate and to the Tribunal that his association with the Dera had been more than that of an employed driver. He had told the delegate that he had regarded himself as a follower, and that “when he heard their speeches and their good words he joined”. He had told the Tribunal that his driving job “came about as he attended their gatherings”. In those circumstances, in my opinion, no apprehension of bias would have been raised by the Tribunal’s questioning of the applicant on these topics at the hearing, nor by its raising concerns about the applicant’s responses both orally at the hearing and in the subsequent letter inviting written comment.
The agent’s submission repeated his invitation for the Tribunal to disqualify itself on page 11 of the submission, when the agent complained that he had made a request to attend the hearing by telephone and the Tribunal had refused to adjourn the hearing. As I have noted above, the factual basis of these assertions is not established on the evidence before me, and they are inconsistent with evidence which I would prefer. In particular, I would prefer the account of the Tribunal given in its findings and reasons, which I have extracted above as to the background history.
Having accepted that view of the events, the contention that there was anything causing an apprehension of bias by reason of the Tribunal’s procedures concerning its refusing to adjourn the hearing to accommodate the applicant’s agent’s availability must fail. I am not satisfied that there is anything in the procedures of the Tribunal concerning the hearing and its dealing with the applicants’ migration agent which might give rise to a relevant apprehension on the part of an informed lay observer either contemporaneously, or in light of the Tribunal’s subsequent decision and reasons.
I therefore am not satisfied that ground 3 has raised and established any jurisdictional error allowing me to set aside the Tribunal’s decision.
For all the above reasons I am not satisfied that I have that power. The Tribunal’s decision is, therefore, a privative clause decision and I must dismiss the application.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 16 December 2009