SZRCG v Minister for Immigration
[2013] FMCA 50
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 50 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider all the integers of the applicants’ claims, applied the wrong test or failed to comply with s.424A of the Migration Act and/or whether the decision was affected by apprehended bias. |
| Migration Act 1958 (Cth), ss.424AA, 424A |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 SZLPO v Minister for Immigration and Citizenship (No 2) (2009) 177 FCR 29; [2009] FCAFC 60 |
| First Applicant: | SZRCG |
| Second Applicant: | SZRCH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 183 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 20 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2013 |
REPRESENTATION
| Solicitors for the Applicants: | Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 183 of 2012
| SZRCG |
First Applicant
| SZRCH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 3 January 2012 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The first applicant is a citizen of Mauritius. The second applicant is her husband. They applied for protection visas on 11 August 2010. Only the first applicant made claims to be a person to whom Australia owed protection obligations. She is referred to for convenience as “the applicant”. The second applicant relied on his membership of her family unit.
The applicant first came to Australia as a holder of a student visa in April 2008. She returned to Mauritius for some two weeks in August 2008 and from mid-May 2009 to mid-September 2009.
The Tribunal recorded that the applicant married her first husband in May 1996. According to her protection visa application they had three children, born in 1996, 1998 and 2004. They separated in December 2006 and divorced in July 2009. Her ex-husband obtained custody of the children. According to the applicant, she met her current husband in January 2006. In January 2007 she converted to Islam to marry him. They married under Islamic law in January 2007 but were not legally married until August 2009.
In the statutory declaration accompanying her protection visa application the applicant, who was born in 1977, claimed that from the age of eight she had been sexually harassed by her father, that she and her sister had to “play sex with him”, that he had threatened her and her sister that if they talked about it he would kill them and that they had been tortured for three years by their father.
The applicant left school at the age of 12. She obtained a position in a textile company. She claimed that during this time her mother left her alone with her father on weekends and that on one occasion he raped her twice. She claimed that she ran away from home and lived with her grandmother for 18 months. She claimed that her mother did not believe that her daughters had been raped by her husband and that when the applicant’s grandmother told her about this, she got really angry and tried to kill both daughters. The applicant also claimed that her mother hated her and did not want to see her again. However after eighteen months her mother came to take her back home “because of money”. The applicant claimed that at that time she was scared her mother hated her and that her father might rape her again.
The applicant claimed that her first husband had affairs and assaulted and beat her. In 1997 she returned to live at her parents’ home with her first child. Her ex-husband visited her there and she had a second child in December 1998. Following a reunion she and her first husband travelled together to Madagascar where he had work. She claimed that in Madagascar her ex-husband tried to kill her. However she remained in Madagascar with her husband for more than a year. She then returned to Mauritius where she opened her own shop and textile company. She claimed that her ex-husband became jealous and asked her for money and if she refused he beat her, so she sold the shop and closed the company. She became pregnant with her third child. She claimed that after that child’s birth her husband pushed her to find a job and when she refused to do so he poured kerosene on her and tried to burn her alive. Subsequently her husband found a job and also found her a job in the same company. She claimed she had to give him all her salary, as otherwise he would kill her. She claimed she was scared, that he had tried to rape her in front of the children and that his anger was out of control.
The applicant claimed that on one occasion in December 2006 her ex-husband had beaten and mistreated her and she thought he was going to kill her. She went to the police station and complained. She claimed that when the police went to her home to arrest her ex-husband, he told them that she had been sleeping with another man and that was why he had beaten her. The next day the applicant ran away to a friend’s place, leaving her home and children.
The applicant claimed that she then hid from her ex-husband for months and that if he had found her he would have killed her. She claimed that she tried for eight months to get custody of the children, but that her ex-husband was given custody and she only had permission to see the children on weekends. In 2008 her ex-husband went to Madagascar with their children.
The applicant claimed that she met her current husband in January 2006 and that they were friends until January 2007. In January 2007 she converted to Islam to marry him.
The applicant claimed that she had heard that her ex-husband had returned to Mauritius and was living with her parents. She claimed that he had threatened her that if she ever came back to Mauritius he would kill her. She also claimed it was hard for her to communicate with her children, that even her parents were negative towards her and that her life was in danger because her family did not understand her.
In her protection visa application the applicant claimed she left Mauritius because she was “scared of my ex-husband and my family. Because I thought they will cause serious harm to me.” She claimed she thought that they would try to kill her. In response to the question, “Why do you think this will happen to you if you go back?” she stated:
I was tortured since my childhood also I was converted to Muslim to get married with my current husband.
I have provided a detail[ed] statutory declaration with this application about my fear of persecution
The applicant claimed that she did not think the authorities would “take necessary action to prevent…persecution” because she had complained about her ex-husband and nothing had happened.
The applicant attended an interview with a delegate of the first respondent. The only evidence before the Court of what occurred in that interview is the account of the interview in the delegate’s decision and in the Tribunal’s reasons for decision.
The delegate accepted that the applicant may have suffered abuse from her ex-husband, but was not satisfied that she was at risk of ongoing harm from him in circumstances where the last claimed violence was in 2006. The delegate had regard to the fact that since that time the applicant had married another man, contested the custody of the children without incident and travelled back to Mauritius on two occasions without incident.
The delegate also found that insofar as the applicant claimed her ex-husband wanted to harm her because she had converted to Islam and he was Hindu, the incidents described and threats she claimed to have received were “not focused on [her] conversion but appear to be domestic in nature”. The delegate also found that the State was willing and able to provide adequate protection in relation to the applicant’s claimed fear of domestic violence.
The applicant attended a Tribunal hearing. A transcript of the Tribunal hearing is in evidence before the Court as an annexure to the affidavit of Sue Archer affirmed on 29 March 2012.
The Tribunal decision
In its reasons for decision the Tribunal summarised the applicant’s claims made in connection with her protection visa application and at the Departmental interview. The applicant was said to have confirmed to the delegate that she feared her ex-husband would kill her if she returned to Mauritius and claimed that her family wanted money from her. She did not otherwise claim to fear harm from her family.
The Tribunal recorded that at the Tribunal hearing, when asked what she feared if she returned to Mauritius, the applicant “said that she feared her ex-husband and her family”, that her “ex-husband had threatened to kill her and tried to do so two or three times” and that “[h]er family was not happy with her because of her conversion to Islam”.
In its findings and reasons the Tribunal summarised the applicant’s claims as a claim to fear that if she returned to Mauritius she would be “seriously harmed by her own family because of her conversion to Islam, and by her ex-husband, who [had] subjected her to domestic violence for the duration of their marriage”. The Tribunal rejected these claims for reasons which it gave.
The Tribunal accepted that the applicant had been subjected to abuse by both her family and her ex-husband for a period of many years and that she had complained about this to the authorities but that they did not come to her assistance. However it found that there was “no evidence that either the applicant’s own family or her ex-husband ha[d] harmed her, apart from subjecting her to verbal abuse, since she left her parents’ home where she [had been] living with her then husband in December 2007”. I note that this date is clearly a typographical error and should be December 2006, as is apparent from other aspects of the Tribunal decision and the subsequent reference to the applicant leaving her husband in December 2006. No issue was taken by the applicant in relation to the Tribunal’s reference to December 2007.
The Tribunal also had regard to the fact that the applicant did not leave Mauritius for Australia until April 2008 and was not harmed in the period she lived in Mauritius with her current husband from January 2007 until April 2008. It also had regard to the applicant’s return to Mauritius in August 2008 for two weeks. During this time she said that in response to a written request she had signed documents in the office of her ex-husband’s lawyer agreeing to the divorce sought by him. The Tribunal found that although the applicant’s ex-husband was in Madagascar at that time, “he clearly knew that she would sign the divorce documents in Madagascar but did not attempt to contact her”. It also had regard to the fact that the ex-husband had not attempted to contact either the applicant or her current husband since she left him in December 2006, although she had sought on many occasions to contact her children through him. The Tribunal referred to the evidence of the applicant husband “that he [had been] contacted once by the ex-husband shortly after he married the applicant wife in a Muslim ceremony in January 2007, when she was still legally married to her ex-husband” and that although the ex-husband “verbally abused and threatened him” (as the Tribunal found “might have been expected”) the ex-husband also told the applicant’s current husband that “he did not want to see him ever again”.
In finding that the applicant did not have a well-founded fear of persecution, the Tribunal had regard to the applicant’s return to Mauritius for four months in May 2009. The Tribunal was of the view that it seemed “unlikely that she would not have been able to be located had either her ex-husband or her family wanted to find her”. It referred to the fact that the applicant “knew of her ex-husband’s circumstances through her acquaintance with people who worked for [his] employer”, that there was no evidence that the ex-husband had attempted to locate her during the time she was in Mauritius, that he had already sought a divorce that was made final in 2009 and that as far as the applicant was aware, he had now remarried. The Tribunal found that “[t]his behaviour [did] not indicate that the ex-husband [wa]s pursuing any grievance against the applicant wife or her husband”.
The Tribunal considered whether the denial of access to the applicant’s children constituted persecution. It referred to her evidence that she left her children when she left the family home in December 2006. The Tribunal found that the applicant’s “evidence and that of her husband regarding attempts to gain custody of or access to her children was lacking in credibility”. It had regard to the fact that she had been unable “to produce any documentation regarding any attempts made to seek legal advice or to get legal assistance in order to obtain custody of her children”. The Tribunal considered the possibility that the fact that the applicant “apparently left her children at the time she left her ex-husband and then lived with the current husband while still legally married to her ex-husband may have resulted in an adverse decision on custody”, but found that there was no evidence that this was the case. There was said to be no evidence about the reason the applicant might have been denied custody of her children. The Tribunal observed that while the wife claimed she had been “granted access visits to her children”, she had also stated that she had “availed herself of this access on only two occasions because she was afraid of her family and ex-husband”. However the Tribunal found that she was vague in her evidence about this issue. On the evidence before it the Tribunal was “not satisfied that the applicant’s ex-husband or her family ha[d] denied her access to or custody of her children as a means of doing her serious harm”.
The Tribunal considered whether there was a real chance the applicant would be persecuted if she returned to Mauritius in the foreseeable future. It gave weight to the fact that she had delayed applying for protection until well over two years after arriving in Australia in April 2008, that she had returned home to Mauritius for two weeks in 2008 and four months in 2009 without incurring serious harm from anyone and that she had applied for protection just nine days before her student visa was due to expire.
The Tribunal found that the applicant was now happily married to a Mauritian citizen who had demonstrated a willingness to assist and support her and that neither her ex-husband nor her own family had done her serious harm since she left her parents’ home in December 2006 where she had lived with her family and her ex-husband.
The Tribunal also found that the applicant’s husband had not put forward any evidence that he had been seriously harmed in the past and nor had he indicated that he was afraid he would be persecuted in the future in Mauritius for a Convention reason or for any other reason.
The Tribunal concluded that on all the evidence it was not satisfied that there was a real chance the applicants would face Convention-based persecution if they returned to Mauritius in the foreseeable future. It was not satisfied that the applicants had a well-founded fear of persecution in Mauritius within the meaning of the Refugees Convention. As it was not satisfied that either applicant was a person to whom Australia had protection obligations, it therefore followed that neither applicant could satisfy the criterion for a protection visa based on being a member of the family unit of the holder of such a visa. The Tribunal affirmed the decision not to grant the applicants protection visas.
The applicants sought review by application filed on 27 January 2012. They now rely on an amended application filed on 23 March 2012. There are four grounds in the amended application.
Integers of the applicants’ claims
The first ground in the amended application is that the “Tribunal failed to consider all integers of the Applicants claims”. The particulars to this ground are as follows:
a. The Tribunal failed to consider whether sexual assaults by her father could lead to a well-founded fear of persecution in the Applicant.
b. The Tribunal failed to consider whether the threats made by her family could lead to a well-founded fear of persecution in the Applicant
The applicants contended that in her protection visa application (in particular in the accompanying statutory declaration) the first applicant had claimed to fear harm due to several incidents, including constant sexual harassment, assault and rape by her father as a child and teenager, death threats from her father when she was a child and teenager, attempts by her mother to kill her when she was 12 years old, as well as assault by her first husband and death threats by her first husband.
It was submitted that the Tribunal had failed to consider whether sexual assaults by the applicant’s father could lead to a well-founded fear of persecution or to give any real consideration to the applicant’s claims that she feared harm from her family as a result of her conversion to Islam (a claim made in her interview with the delegate).
The solicitor for the applicants acknowledged that the Tribunal had accepted that the applicant wife had been subjected to abuse by both her family and her ex-husband over a period of many years and that she had complained about them to the authorities who did not come to her assistance. However it was submitted that this finding did not address the sexual assaults by the applicant’s father.
It was also submitted that the Tribunal’s finding that there was no evidence that either the applicant’s own family or her ex-husband had harmed her (apart from subjecting her to verbal abuse) since she left her parents’ home where she had been living with her then husband (which was in December 2006) did not constitute a real consideration of the claims of the applicant who had left Mauritius in April 2008.
In addition it was contended that the Tribunal had failed to consider whether the verbal abuse suffered by the applicant could amount to persecution or give rise to a well-founded fear of persecution. The applicants submitted that the Tribunal had only considered whether the incidents which had occurred to the first applicant in the past amounted to persecution, rather than considering whether those incidents could lead to a well-founded fear of future persecution. The solicitor for the applicants contended that the Tribunal had failed to consider a well-articulated claim or an integer of a claim in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26.
In oral submissions, the solicitor for the applicant submitted that the Tribunal had not only failed to consider whether the sexual assaults and abuse by the applicant’s father and threats made by her family could lead to a well-founded fear of persecution, but that it had also failed to consider whether the attempts by her mother to kill her (as well as the assaults and the death threats by her first husband) could lead to a well-founded fear of persecution.
It is apparent from the transcript of the Tribunal hearing that at no stage in the hearing did the applicant make any express claim that past sexual assaults by her father caused her to have a well-founded fear of persecution in the reasonably foreseeable future in Mauritius. At the start of the hearing (transcript p.5), while she confirmed that her fear was harm by her ex-husband and also by her whole family, she linked the fear of her family to her conversion to Islam, not to past abuse (or threats by her father or death threats by her mother when she was 12 years old).
Further, when the Tribunal expressed apparent surprise about why the applicant had been living with her parents “given [her] history with [her] father” (transcript p.17), she did not respond. When asked whether she had told her ex-husband about her problems with her father (transcript p.17), she agreed that she had. The Tribunal stated “And yet you still lived in their house. I really find that very difficult to understand”. The applicant explained that she and her ex-husband had lived with her parents, even though her ex-husband did not want to, because her mother had given her a place for a house on land her mother owned.
A failure to respond “to a substantial, clearly articulated argument relying upon established facts” (Dranichnikov at [24] per Gummow and Callinan JJ) may amount to a jurisdictional error as a constructive failure to exercise jurisdiction or to carry out the review required by the Migration Act 1958 (Cth) (the Act) (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]). However this is not such a case. The fact that the applicant claimed that as a child she had experienced sexual abuse by her father did not of itself give rise to a claim that she feared future persecution on this basis. She did not expressly articulate such a claim. As the Full Court of the Federal Court pointed out in NABE at [58] an “unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it”. That is, such a claim must be “apparent on the face of the material before the Tribunal” and “will not depend for its exposure on constructive or creative activity by the Tribunal” (ibid).
Further, as is apparent from NABE at [68], the fact that “a claim might have been seen as arising on the material before the Tribunal” does not of itself mean that it represents “a substantial clearly articulated argument relying upon established facts” in the sense considered in Dranichnikov. As their Honours stated:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is…not lightly to be made. The claim must emerge clearly from the materials before the Tribunal (NABE at [68]).
While the applicant gave details of childhood sexual abuse and rape by her father in connection with her protection visa application, she did not claim to have experienced such abuse as an adult when living in her parents’ home or to fear persecution as a past victim of sexual assault. Nor did the material before the Tribunal squarely raise any claim that such assaults might be repeated should the applicant return to Mauritius or that she feared harm as a victim of past sexual assault.
As submitted for the first respondent, in its reasons for decision the Tribunal recounted the first applicant’s claims of sexual assaults by her father. It can be inferred that in accepting that the applicant had been subject to abuse by her family over many years the Tribunal clearly accepted that she was the victim of sexual assaults and other abuse by her father in the past. However there is nothing in the material before the Court to establish that the applicant made any substantial, clearly articulated claim that such assaults might be repeated or that being a past victim of sexual assault, harassment, rape and death threats by her father as a child or teenager or death threats by her mother when she was 12 years old might otherwise cause her to hold a well-founded fear of persecution as a victim of sexual assault or other physical harm at the hands of her father or her mother or anyone else. Nor does such a claim arise squarely on the material before the Tribunal in the sense considered in NABE. Rather, the applicant’s claim of feared harm was, as was understood by the Tribunal, that she would be seriously harmed by her family because of her conversion to Islam and of violence from her ex-husband. Insofar as in her protection visa application the applicant had claimed to fear that her ex-husband and family would try to kill her, this was explained in her subsequent oral claims. The claim of past mistreatment by her father (apparently encompassed in her claim that she had been tortured since childhood) was part of the contextual background which explained why the applicant feared that her family would kill her because of her conversion to Islam.
Insofar as it was submitted that there was no “real” consideration of the applicant’s claims because she left Mauritius in April 2008, this was a matter going to the merits of the Tribunal’s factual assessment. Moreover the Tribunal considered and placed weight on the applicant’s two subsequent returns to Mauritius without experiencing harm.
It has not been established that there was a substantial clearly articulated claim arising on the material before the Tribunal that the applicant feared that the past sexual assaults by her father could lead to a well-founded fear of persecution. Particular (a) is not made out.
In relation to particular (b) of ground one, as the applicants submitted it is possible for verbal abuse to lead to a well-founded fear of future persecution, although of itself it might not be sufficient to establish persecution (see VBAO v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 233 CLR 1; [2006] HCA 60). However in this case the Tribunal considered the applicant’s evidence of past events, including threats made by various members of her family both before and after she left the family home in December 2006. The Tribunal found that there was no evidence that either the applicant’s own family or her ex-husband had harmed her, apart from subjecting her to verbal abuse, since she left her parents’ home where she had been living with her then husband, in circumstances where she had lived in Mauritius until April 2008 and had returned later that year and for four months in 2009. The Tribunal found that the applicant had not been seriously harmed since 2006. It was in those circumstances that it considered the future and concluded that there was no real chance that the applicant would face Convention-based persecution in the foreseeable future. In circumstances where the claimed threats and abuse by the applicant’s family were expressly acknowledged by the Tribunal, its findings concerning the absence of a real chance of future persecution were findings of sufficient generality to encompass such specific claims (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]).
Insofar as it was contended that the applicant’s claim to fear her family was not limited to a claim that she feared harm from her family because of her religious conversion (on the basis that part of the past harm she had suffered from her family involved threats and mistreatment for other unrelated reasons), it is clear from the transcript of the Tribunal hearing that the applicant’s claim was to fear harm from her family because of her religious conversion (transcript p.5 line 8, p.32 line 27 to p.33 line 4, as well as p.33 line 32 to p.34 line 6). Her evidence was that she was afraid of her ex-husband and her whole family who could harm her because she “converted to Muslim and my whole family was not happy” (transcript p.5).
The applicant’s evidence in this respect at the Tribunal hearing was consistent with the claims she made in her protection visa application. The evidence she was recorded as giving at the Departmental interview concerned her fear of her ex-husband. In relation to her family the applicant stated she was not in contact with anyone, except that when she rang her mother in July 2009 her mother told her not to contact her, that her mother did not want her to marry a Muslim and that all her family was unhappy because she had married a Muslim.
It has not been established that the applicant made a broader claim in relation to a well-founded fear of persecution based on past threats by her family or that such a broader claim arose squarely on the material before the Tribunal. As indicated above, she did not claim to fear future harm from her mother based on death threats made to her when she was 12 years old. Indeed she claimed that she and her ex-husband lived with her parents until December 2006 because her mother had a property on which they could build a house.
Contrary to the submission that the Tribunal failed to consider whether the threats made by the applicant’s family could lead to a well-founded fear of persecution, the Tribunal sufficiently dealt with the verbal (and other) abuse suffered by the applicant in its finding that she had not been seriously harmed since 2006 and its subsequent conclusion as to the absence of a well-founded fear of future persecution. The Tribunal expressly considered whether there was a real chance the applicant would suffer persecution should she return to Mauritius in the reasonably foreseeable future. It not only found that she had not been seriously harmed since she left her parents home in 2006, but also was not satisfied that she had a well-founded fear of future persecution in Mauritius.
Ground one in the amended application is not made out.
The wrong test
Ground two is that the Tribunal applied the wrong test. Only the first particular was pressed. It is that:
The Tribunal looked at the likelihood of actual harm rather than ask the question “would the verbal abuse lead to a well founded fear of persecution”.
However, as discussed above, it was open to the Tribunal to have regard to past verbal threats and to find that threats since 2006 did not constitute serious harm as a step in the determination of whether the applicant had a well-founded fear of future persecution. Such an approach was consistent with the fact that it is open to a decision maker to assess the real chance of future persecution by reference to findings as to an absence of past persecution (see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 575-576; [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). The Tribunal did not restrict itself to a consideration of whether the applicant had suffered actual harm in the past in considering whether she faced a well-founded fear of future persecution. It not only took into account the applicant’s evidence about what had and had not occurred to her in the past, but also the applicant’s delay in applying for protection, her return home on two occasions without serious harm and the fact that she had applied for protection just nine days before her student visa was due to expire.
Insofar as the applicant’s claims to fear her ex-husband were in some way related to her relationship with her second husband, the Tribunal also had regard to the fact that there was no evidence that the second husband had been seriously harmed in the past or any indication that he was afraid he would be persecuted in the future. It has not been established that the Tribunal applied the wrong test.
Ground two is not made out.
Section 424A of the Migration Act
The third ground in the amended application is that the Tribunal failed to carry out its statutory duty under s.424A of the Act. The particulars to this ground are:
The Tribunal referred to evidence given by the Applicant’s husband but failed to explain why the information was relevant and give her a genuine opportunity to comment upon it.
In submissions it was also contended that the Tribunal had also failed to give the applicant clear particulars of such information.
The Tribunal did not write to the applicant under s.424A of the Act. The applicant’s written submissions focussed on whether the Tribunal had put the husband’s evidence to the first applicant in accordance with s.424AA.
However the first respondent did not dispute that if there was information within s.424A(1) of the Act, the Tribunal did not comply with the requirements of s.424AA in the manner in which it put information to the applicant for comment at the Tribunal hearing. Accordingly what is in issue is whether the applicant’s husband’s oral evidence gave rise to any s.424A(1) obligation.
During the Tribunal hearing the Tribunal took evidence from the first applicant’s husband in her presence, in particular in relation to a telephone call from the applicant’s former husband and in relation to what had been done to gain custody of the children. The applicants submitted that those aspects of his evidence were information within s.424A(1) of the Act that had to be put to the first applicant for comment in accordance with the requirements of s.424A. The applicants submitted that the Tribunal relied on that evidence in its findings and reasons in circumstances where it had not given particulars of the information to the first applicant, explained why it was relevant or given her an opportunity to comment upon it.
The first aspect of the husband’s oral evidence in issue appears at p.37 of the transcript of the Tribunal hearing. After the husband (the second applicant) told the Tribunal that he had never met the first applicant’s ex-husband, the hearing continued:
MEMBER: Did he ever ring you on your telephone?
SECOND APPLICANT: Yes he tried to contact me.
MEMBER: When you say he tried to contact you, did he actually speak to you?
SECOND APPLICANT: Yes.
MEMBER: When?
SECOND APPLICANT: In 2007.
MEMBER: When? Was it long after you were married or a short time after you were married?
SECOND APPLICANT: Shortly, a short time after.
MEMBER: When he rang you what did he say to you?
SECOND APPLICANT: He said that since I met my wife he could do us harm at any time.
MEMBER: What exactly did he say? He rang you, he said what?
SECOND APPLICANT: Insulted me, swore at me, and he said he doesn’t want to see me at any time.
MEMBER: Since he was still married to your wife, he was likely to be angry I’d imagine. Did you expect this?
SECOND APPLICANT: Not really.
MEMBER: Well you would surely expect him to be very angry if your wife was in fact still married to him and she just left him and the children at the end of December in 2006.
SECOND APPLICANT: She’d already left him in December 2006 because he was torturing her and beating her.
MEMBER: But she was still legally married to him. I mean, you cannot be surprised that he would have been very angry and spoken to you in a very angry and threatening manner. Did you expect that he would be angry?
SECOND APPLICANT: Not really.
INTERPRETER: ...
MEMBER: Okay. Now, apart from this conversation, this telephone conversation you had soon after you got married to your wife, did you ever speak to your wife’s ex-husband again?
SECOND APPLICANT: No.
The evidence of the husband about attempts to gain custody of the children commences on p.41 of the transcript. However I note that prior to the extract relied on, the following exchange occurred with the second applicant (the husband) (at p.40 line 30 to p.41 line 12):
MEMBER: Had she told you about her three children before you got married?
SECOND APPLICANT: Yes. There was no doubt that she loved her children but there were too many problems with her husband.
MEMBER: Mm-hmm, so what did you think about what she should do about her children?
SECOND APPLICANT: We tried to do what we had to do to try and obtain the custody.
MEMBER: Okay, and what did you do?
SECOND APPLICANT: We tried to contact the children.
MEMBER: And you didn’t succeed or what?
SECOND APPLICANT: We didn’t succeed.
MEMBER: And how long did you keep trying to contact them?
SECOND APPLICANT: (No verbal reply.)
MEMBER: Did this go on all the time before she came to Australia, would you try once a month or so or what?
SECOND APPLICANT: (No verbal reply)
MEMBER: Did you do anything else to try to get access to the children?
SECOND APPLICANT: For a long while they were not in Mauritius any more, they were in Madagascar because their father was working in Madagascar.
Then, starting at p.41, line 14, the Tribunal member asked:
MEMBER: Did you see a lawyer?
SECOND APPLICANT: No.
MEMBER: Do you have anything to say about that?
FIRST APPLICANT: In January 2007.
It is apparent from this response and what occurred thereafter that this last question was addressed to the first applicant who was in the hearing room. The Tribunal continued:
MEMBER: Well, I asked your husband the question a few times in a few ways and all he said was you tried to contact the children. So is it the case that you did anything about a lawyer?
FIRST APPLICANT: We didn’t hire – like I told you before, we didn’t hire –
MEMBER: You said you went to court and there were hearings and your husband didn’t show up and –
FIRST APPLICANT: Like we didn’t hire a lawyer. We got a lawyer from the Government.
MEMBER: Well it’s the same thing, I’m sorry. I find it difficult to accept that you actually ever had anything to do with a lawyer, a Government lawyer, any kind of lawyer, in order to get custody of your children. You haven’t got any kind of supporting documentation and your husband seems to know nothing about it.
FIRST APPLICANT: No, he knows about them. Like we had the hiring like every month, every two months to go to the court to fight for the children.
MEMBER: Well he said nothing of this when I asked him so we’ll need to move on.
The applicants submitted that the applicant husband’s evidence was separate from that of his wife and that his evidence, specifically in relation to the telephone call from the ex-husband and whether they saw a lawyer, was information within s.424A(1) of the Act as the reason or part of the reason for affirming the delegate’s decision. It was submitted generally that the Tribunal had regard to both aspects of the husband’s evidence in its findings and reasons as going to matters of importance in its finding that the applicants did not have a well-founded fear of persecution and hence that such information formed part of the reason for the Tribunal affirming the decision under review.
It was also submitted that even if the Tribunal had given the applicant particulars of the husband’s evidence at the hearing, it had not explained why it was relevant or otherwise complied with s.424AA of the Act. Hence the Tribunal was said to be under an obligation to put the information to her in writing.
As indicated, the solicitor for the Minister conceded that if s.424A(1) was enlivened there had been no compliance with s.424AA. It was also acknowledged that information given by a second applicant at a Tribunal hearing was not within the exception to s.424A(1) in s.424A(3)(b) of the Act (see SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110).
However the first respondent submitted that s.424A(1) was not enlivened by the evidence of the second applicant. In relation to the evidence about the husband’s telephone call with the ex-husband, it was submitted that such evidence was not adverse to the applicant in any way, let alone evidence that independently undermined, denied or rejected her claims to be a person to whom Australia owed protection obligations as considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 (at [17] – [18]). It was submitted that, if anything, such evidence was potentially capable of assisting the applicant and was consistent with her own evidence to the Tribunal that her ex-husband had threatened her present husband. Insofar as the Tribunal had regard to the fact that the ex-husband told the applicant’s husband that he did not ever want to see him again, it was submitted that this evidence was not something that of itself had the capacity to negate the applicant’s ability to satisfy the Tribunal that she was a person to whom Australia had protection obligations. Nor was it said to be inconsistent with the applicant’s overall evidence that although she had contacted her ex-husband on a couple of occasions in relation to having contact with the children, he had not got back to her.
The first respondent submitted that in referring to this aspect of the telephone conversation between the applicant’s former and present husbands in its findings and reasons, the Tribunal was simply setting out a statement of the evidence that was given and that there was no evidence that it regarded as particularly adverse. It was also submitted that in light of the evidence as a whole and the nature of the particular claims advanced by the applicant, the ex-husband’s remarks were relatively innocuous, if not neutral, and could not be characterised as information that was the reason or part of the reason for affirming the decision under review.
As to the husband’s oral evidence about whether they saw a lawyer in relation to the custody dispute, there was said to have been no explanation as to how the husband’s evidence was capable of undermining, denying or rejecting the applicant’s particular Convention claims. The first respondent also submitted that if there was any relevance to the Tribunal’s decision, it was a relevance that consisted of an inconsistency between that evidence and what the applicant wife said, which was that she had seen a lawyer in relation to the custody matter. It was contended that the husband’s evidence that he had not seen a lawyer was not evidence that independently undermined, denied or rejected the applicant’s claims to be a person to whom Australia owed protection obligations in the sense considered in SZBYR. Rather, the sole relevance of such information, if any, was said to be its possible inconsistency, which the Tribunal appeared to have relied on indirectly insofar as it found that the evidence of the applicant and of her husband regarding attempts to gain custody of or access to the children was lacking in credibility. However this aspect of the Tribunal’s findings was said to be an assessment of the evidence by the Tribunal and not information of itself giving rise to a s.424A obligation.
First, it is clear that evidence given by a person other than the primary applicant at the Tribunal hearing is not evidence given by the applicant for the purposes of her application for review within the meaning of the exception to the s.424A(1) obligation in s.424A(3)(b) of the Act (see SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498; [2009] FCA 209 at [44] – [45]). Thus, as Moore J put it in SZGSI at [2] (and see Marshall J at [46] – [56]):
…in circumstances where there are two (or more) applicants for review by the Refugee Review Tribunal, the word “applicant’ in s 424A(3)(b) of the Migration Act 1958 (Cth) should be treated as a reference to each applicant individually and that the Tribunal is not obliged to provide particulars to the individual applicant who has provided the information. It is, however, obliged to provide particulars to the other individual applicants if the relevant information has the characteristics enlivening the duty created by the section.
The first respondent accepted that if the applicant husband’s oral evidence did give rise to a s.424A(1) obligation to the applicant, it would not be within the s.424A(3)(b) exception and that in this particular the fact that such issues were raised orally at the hearing would not obviate the need to comply with the requirements of s.424A (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24) if the information came within s.424A(1) of the Act. In other words, the material was not put to the applicant in accordance with s.424AA of the Act. Thus the issue is whether either aspect of the applicant husband’s evidence amounted to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review within s.424A(1)(a).
In SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ addressed the issue of what “information” has to be provided under s.424A(1). Relevantly their Honours stated (at [17] – [18]):
…the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information”
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Insofar as the first respondent contended that neither of the relevant parts of the husband’s evidence independently and of itself undermined, denied or rejected the applicant’s refugee claims, in MZYIA v Minister for Immigration and Citizenship and Another (2011) 121 ALD 291; [2011] FCA 642 Gray J pointed out (at [24]) that what had been said in SZBYR (at [17]) “is not easy to understand”. Relevantly, Gray J continued (at [25] – [26]):
The foundation for the obligations cast on the Tribunal by s 424A(1) is the formation by the Tribunal of a state of mind, namely that “the Tribunal considers” that some information would be the reason, or a part of the reason, for affirming the decision under review. What was said in SZBYR at [17] cannot have been intended to substitute for this subjective (to the Tribunal) test an objective test that the information contain in its terms “a rejection, denial or undermining of” the claims of the applicant in question. The subjective effect of information in relation to an applicant’s claims may not always be apparent from the terms of that information. The essential question is how the Tribunal proposes to use the information in its reasoning process. For instance, it is possible for the Tribunal to misunderstand information, and to consider that the information would be the reason, or part of the reason, for affirming the decision to refuse a protection visa, when in fact the information has the opposite effect. Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 was such a case. There, the Tribunal mistakenly thought that an item of news refuted the applicant’s claim that he had been campaigning for a candidate in a by-election. Read in its entirety and properly, the news item supported the applicant’s claim. Nonetheless, the Tribunal having reached the requisite state of mind, it was held that it was obliged to comply with s 424A(1) in relation to the news item. See [29]-[34]. It is possible that the Tribunal might propose to make use of information in a particular way to refute the claims of an applicant, whereas others might regard the same information as neutral, or as capable of assisting the claims of that applicant. The important question is not the objective effect of information but the state of mind of the Tribunal, as to whether it “considers” that it would use the information against the applicant.
In this respect, the question of the use of the Tribunal’s reasons for decision is important. It is true that the time at which the Tribunal reaches the requisite state of mind about an item of information will precede the finalisation of its reasons for decision in any particular case. In most cases, the applicant will not have any means of access to the thought processes of the Tribunal in relation to information as the Tribunal proceeds to make its decision. The only possible source of evidence that the Tribunal has formed the requisite state of mind will be the Tribunal’s reasons for decision. Only by examining the Tribunal’s disclosed process of reasoning, to see how it has made use of the particular information, can it be determined that, at some antecedent time, the Tribunal must have reached the state of mind that it considered that the information would be the reason, or part of the reason, for affirming the decision under review. This is why, since SZBYR, it has been recognised that, although the reasons are not the starting point, it may be appropriate to refer to them to determine whether the Tribunal had the requisite state of mind. See SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [16]- [18] and SZMNP v Minister for Immigration and Citizenship[2009] FCA 596 at [38]. (Emphasis added).
Thus it is relevant to have regard to the Tribunal’s reasoning in relation to the particular items of information (and see SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890; SZMPT v Minister for Immigration and Citizenship and Another (2009) 107 ALD 121; [2009] FCA 99, SZLPO v Minister for Immigration and Citizenship (No 2) (2009) 177 FCR 29; [2009] FCAFC 60; [2009] FCAFC 60 and Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 at [26]).
The Tribunal addressed the evidence about the telephone call between the ex-husband and the applicant’s husband in considering the applicant’s claim to fear harm from her ex-husband. The Tribunal found in relation to the applicant’s claim to fear harm from her ex-husband that he had not harmed her (apart from verbal abuse) and had not attempted to contact her or her current husband since she left him in December 2006, although she had sought on many occasions to contact her children through him.
Relevantly, the Tribunal referred to the husband’s evidence that he was contacted once (by telephone) by the ex-husband shortly after he married the applicant in a Muslim ceremony in January 2007 (while she was still married to her ex-husband) and stated that while the ex-husband had verbally abused and threatened the applicant husband, he also told him that he did not want to see him ever again. In context, the Tribunal’s reference to verbal abuse and threats must be taken to encompass the ex-husband’s claim that he could do them harm at any time.
However such evidence was supportive of the applicant’s claims. It was not adverse to her claim to fear harm from her ex-husband (cf SZBYR at [17]). Nor was it used by the Tribunal against or to refute the applicant’s claims. Rather, while the Tribunal referred to the verbal abuse and threats to the husband, it had regard to the ex-husband’s failure to attempt to locate the applicant and the fact that he had sought and obtained a divorce and remarried in concluding that he was not pursuing any grievance against the applicant or her husband.
Further, the husband’s evidence about the ex-husband not wanting to see him ever again was not information that undermined the applicant’s claim to fear she would be harmed by her ex-husband. In any event, she did not claim to fear that her ex-husband would harm her present husband.
Contrary to the applicants’ contention, the mere fact that the discussion of the telephone conversation appeared in the findings and reasons part of the decision does not in the circumstances of this case lead to a conclusion that it was information that was part of the reason for affirming the decision under review. It has not been established that the evidence given by the husband about his conversation with the ex-husband is “information” within s.424A(1)(a) of the Act.
As to the husband’s evidence about what they did to try to obtain custody of the children, while he claimed they tried to contact the children, he did not elaborate on this claim and stated that he did not see a lawyer. He failed to reply to some aspects of the Tribunal questioning. His evidence was not in terms a rejection, denial or undermining of the applicant’s claims. The Tribunal recorded a summary of the husband’s evidence (and that of the wife) in its description of the hearing. It found the evidence of both the applicant and her husband regarding attempts to gain custody of or access to her children was lacking in credibility. It did not make any finding about any possible inconsistency in their evidence, although it had raised an issue with the wife at the hearing in relation to whether she did anything more than try to contact the children and, in particular, whether she did anything about a lawyer. Relevantly, the Tribunal reasoned that the husband’s evidence, which was lacking in credibility, did not assist the applicant and was not such as to support any finding that the ex-husband or the wife’s family had denied her access to or custody of her children as a means of doing her serious harm. Such reasoning and any possible inconsistency was not of itself information within s.424A(1)(a) of the Act. There is no obligation on the Tribunal to give an applicant an opportunity to comment on its prospective reasoning process, nor the existence of doubts, inconsistencies or the absence of evidence (SZBYR at [18]).
This aspect of ground three is not made out.
Apprehended bias
Ground four in the amended application is that the Tribunal’s decision was “infected by apprehended bias”. The particulars are that “[t]he Tribunal failed to approach its task with an open mind but looked for reasons to reject the application”.
The applicants submitted that the Tribunal failed to consider or to give any real consideration to the totality of the applicant’s claims, including that she had been sexually assaulted by her father; that by characterising the threats issued by her family as verbal abuse, the Tribunal failed to give any real consideration to the severe nature of the threats and intimidation, including death threats, made to the applicant; and that the Tribunal’s finding that the applicant’s return trips to Mauritius when she did not suffer harm indicated that her claims were not credible was not based on logic or evidence when her evidence was that her former husband was not in Mauritius when she was there and that she stayed covertly at her in-laws’ house.
It was submitted that this reasoning demonstrated that the Tribunal had looked for reasons to reject the application and that this was indicative of apprehended bias.
It has not been established that the Tribunal decision was affected by apprehended bias in the sense contended for by the applicants. The test for apprehended bias was stated in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 as follows (at [28] per Gleeson CJ, Gaudron and Gummow JJ):
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.
The remarks of the Full Court of the Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 should be borne in mind. Their Honours stated (at [15]):
In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal's assessment of the merits of the appellant's claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant's claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant. The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith.
As the first respondent submitted, such remarks are in point in this case. The Tribunal carefully examined the applicants’ claims and explained why it did not accept them.
Dealing specifically with the matters relied on by the applicants, I note first that a failure to consider an integer of the applicants’ claims would not of itself demonstrate apprehended bias. In any event, the Tribunal did not fail to consider or give any real consideration to the totality of the applicants’ claims.
As to the characterisation of threats from the applicant’s family as verbal abuse, rather than something in stronger terms, this was a matter of assessment for the Tribunal. It has not been established that such characterisation demonstrated that the Tribunal was looking for reasons to reject the application. It was a description that was open to the Tribunal on the material before it. There was no claim of a fear of persecution by reason of the sexual abuse by the applicant’s father. The Tribunal accepted that she had been subject to past abuse over many years, but also had regard to the absence of harm, apart from verbal abuse, since leaving her parents’ home.
It was also contended that the Tribunal’s findings about the absence of harm to the applicant on her return trips to Mauritius were not based on logic or evidence. However there was evidence before the Tribunal in relation to the fact that the first applicant had not suffered harm on her return to Mauritius. In particular, the Tribunal had regard to the ex-husband’s knowledge of her whereabouts, notwithstanding that he was not in Mauritius. This was a matter of which the Tribunal was clearly aware, as it was discussed at the hearing and referred to in the Tribunal reasons for decision. The Tribunal was of the view that, while the husband was in Madagascar during the applicant’s August 2008 return to Mauritius, he clearly knew that she would sign the divorce documents at his lawyers office, but he did not attempt to contact her and did not harm her. There cannot be said to be a lack of logic or no evidence at all for the Tribunal’s findings in this respect. It has not been established that the Tribunal’s decision was illogical in the sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16.
Nor is the evidence itself supportive of the applicants’ contention that the decision was affected by apprehended bias. Insofar as reference was made to the Tribunal’s findings about the circumstances of the applicant’s 2009 return to Mauritius, the applicant did claim that she stayed covertly at her husband’s family’s house when she returned for four months in May 2009. However it was open to the Tribunal to have regard to the length of time she remained in Mauritius. It found it unlikely that she would not have been able to be located had either her ex-husband or her family wanted to find her. In that context the Tribunal referred to the applicant’s acquaintance with people who worked for her ex-husband’s employer, as well as to the absence of any evidence that her ex-husband had attempted to locate her during the four months she was in Mauritius. It was in those circumstances that the Tribunal found that this behaviour did not indicate that the ex-husband was pursuing any grievance against the applicant or her husband. Such reasoning is not indicative of apprehended bias.
Furthermore, the claim of apprehended bias derives no support from the transcript of the Tribunal hearing. Having regard to all the matters raised for the applicants it has not been established that the Tribunal decision was affected by apprehended bias.
As no jurisdictional error has been established on any of the bases contended for by the applicants the application must be dismissed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 31 January 2013
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