SZRIQ v Minister for Immigration
[2012] FMCA 823
•13 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRIQ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 823 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – extension of time to bring judicial review proceedings. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason of apprehended bias and by reason that the Tribunal failed to comply with ss.424A and 425 of the Migration Act 1958. |
| Migration Act 1958, ss.417, 418, 424A, 425, 474, 477 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Tuckiar v R (1934) 52 CLR 335 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 |
| Applicant: | SZRIQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 780 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 August 2012 |
| Date of Last Submission: | 14 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Dean |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time to bring these proceedings be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 780 of 2012
| SZRIQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Fiji who arrived in Australia in November 1987 when he was eleven years old. He was later granted permanent residency but on 11 August 2011 this was cancelled on character grounds. Following his release from prison on 15 August 2011 the applicant was placed in immigration detention where he remains.
On 16 December 2011 the applicant applied to the Department of Immigration and Citizenship for a protection visa. In his application the applicant alleged that he feared persecution in Fiji because of his political opinion and Indo-Fijian ethnicity. On 9 January 2012 a delegate of the first respondent (“Minister”) refused the applicant’s application for a protection visa. The applicant then applied to the second respondent (“Tribunal”) for a review of that decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision. He has also sought an extension of time to bring the proceedings.
For the reasons which follow, the application for an extension of time to bring the proceedings will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa were set out on pages 4-7 of the Tribunal’s decision and relevant factual allegations are summarised below.
Additionally, and not referred to in the Tribunal’s decision, in their letter to the Minister’s department dated 15 December 2011 enclosing the applicant’s protection visa application, the applicant’s then- migration agents said:
This application is lodged so as to eventually enable our client’s [sic] to seek access to the personal powers held by the Minister for Immigration & Citizenship under section 417 of the Migration Act 1958. As such, this application is in effect an “artificial pathway” to the Minister. …
Our client understands that he cannot satisfy the Schedule 2 provisions for the grant of a subclass 866 Protection visa and that your office will therefore have no choice but to refuse this visa application.
[The applicant] has acknowledged his inability to meet the legislative criteria on the enclosed notice issued under Clause 2.17(b) of the Migration Agents Code of Conduct.
This application is lodged solely to create an artificial pathway to the Minister’s personal powers under section 417 of the Migration Act 1958 in due course so that the compassionate aspects of their [sic] case can be explored.
Your office should therefore not devote significant resources to this application.
Also enclosed with that letter was a written acknowledgement by the applicant, in the form of a notice expressing itself to be under cl.2.17 of the Migration Agents Code of Conduct (“Code of Conduct”), stating that his then-migration agents had advised him that his protection visa application had little prospect of success and that he had authorised them to provide that acknowledgment to the Minister’s department. Subsequently, that written acknowledgment was also included with the documents filed with the applicant’s application to the Tribunal for review of the delegate’s decision.
The applicant’s migration agents were practising solicitors.
The applicant appeared before the Tribunal on 17 February 2012 at which point he made the following claims:
a)he developed his fear of returning to Fiji while he was detained at Villawood Immigration Detention Centre (“VIDC”);
b)some of the detainees in VIDC were Fijian. He asked them what Fiji was like as he had left when he was eleven years old and they told him that there was nothing for him in Fiji;
c)some of the Fijian detainees also expressed the opinion that Indians were bad for Fiji. Being of Indian descent himself, the applicant responded by saying that Indians did well for the country. His opinions were not liked and led to some fights;
d)while he was in prison, he spoke out against the coups in Fiji. He was not trying to start trouble but was simply saying what he thought. Because of his comments, there was tension and gang violence in the prison;
e)some of the Fijians with whom he had fought in prison had family members in the Fijian police and military. After they were deported, they sent him threats from the outside;
f)if he returned to Fiji he would be targeted by his former inmates and/or their relatives because he would be blamed for starting the fights and because he spoke out against the coup. They might bash or kidnap him or tell the police about him. They might also use their connections to stop him from getting help;
g)Indians were persecuted in Fiji. They had no land rights and were not at the top of any corporation;
h)having been to prison, he would be treated as a second class citizen in Fiji. People would look down on him; and
i)because of his Indian ethnicity and corruption within the government, he would not be protected in Fiji.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant would be treated as a second-class citizen in Fiji or that he would be targeted, whether by the military, the army or the general population, because of his Indian ethnicity. The Tribunal found that the applicant’s claims in this regard were contrary to country information which indicated that Indo-Fijians comprised 37% of the population, that the 2006 coup was perceived as being Indo-Fijian and that there had been some moderation of the anti-Indian sentiment which initially accompanied it. The Tribunal also noted that it was unable to locate any information about Indo-Fijians being targeted by the police or the military for arbitrary arrest or detention;
b)the applicant’s claim that he would be targeted in Fiji because he had expressed his political opinion and caused fighting in prison was, in the Tribunal’s opinion, far-fetched for the following reasons:
i)the applicant provided no details about the individuals who were allegedly concerned about the expression of his opinion and the resultant disturbance, nor of their contacts with the Fijian military or police. The existence of such connections appeared to be nothing but mere assertion; and
ii)the Tribunal did not accept that the applicant’s political expression in prison would be of any interest to the Fijian authorities, given that country information suggested that those authorities were more interested in high profile individuals and the public expression of political views;
c)the Tribunal noted that the applicant had not engaged in any political activities other than the expression of political views in prison. It also noted that at its hearing the applicant stated that he did not belong to any political organisation or party. In the circumstances, the Tribunal did not accept that the applicant had a genuine interest in the expression of political views. The Tribunal did not accept that the applicant would therefore engage in any political activities were he to return to Fiji and found that there was no real chance that he would be persecuted in Fiji because of his political opinion;
d)the applicant claimed that he would be denied state protection because of his Indian ethnicity and because of the relationships between the authorities and those who were involved in or affected by the prison in-fighting. However, the Tribunal found that this was merely an assertion by the applicant and did not accept that he would be denied protection by the authorities for any reason. Further, the Tribunal said that even were it to accept that the police would deny the applicant protection because of corruption, this would not be for a Convention reason;
e)while the Tribunal accepted that people might not wish to associate with the applicant or might look down on him because he had spent time in gaol, it did not accept that this amounted to serious harm; and
f)the applicant stated at the hearing that he would have no support in Fiji, that he had no family and no skills to obtain a job. He also spoke about the generally poor situation in Fiji. In the Tribunal’s opinion, none of these matters gave rise to Convention-related persecution.
Proceedings in this Court
In the amended application the applicant alleged:
1.The Tribunal failed to comply with section 424A of the Migration Act 1958 (“Act”).
2.The Tribunal’s decision was affected by a reasonable apprehension of bias.
3.The Tribunal failed to comply with section 425 of the Act.
As noted earlier in these reasons, he also sought an extension of time to bring these proceedings.
Extension of time
Subsection 1 of s.477 of the Migration Act1958 (“Act”) provides that proceedings seeking judicial review of a Tribunal decision must be brought within thirty-five days of the date of that decision. However, s.477(2) provides that the Court may extend that period if an application for such an order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
The Tribunal’s decision was dated 28 February 2012 which means that the applicant had until 3 April 2012 to commence these proceedings. However, he did not do so until 11 April 2012 which means that his application was brought out of time. The consequence of this is that the Court must now consider the two questions posed by s.477(2).
In this case the applicant made application in writing for an extension of time by including such a request in his application commencing these proceedings. In that application he specified why, in his submission, it was in the interests of the administration of justice for time to be extended. At this point, it is sufficient to observe that the preliminary criterion for the granting of an extension of time has been satisfied.
The next matter to be considered is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. Although the Court is not limited to particular matters when considering the exercise of this discretion, in the present case the relevant issues appear to be whether the applicant has demonstrated a satisfactory explanation for the delay in the commencement of these proceedings, whether the Minister would suffer any prejudice if time were to be extended and whether the allegations made in the application have reasonable prospects of success.
In relation to the latter question, the issue is whether the applicant has reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Satisfactory explanation for delay and prejudice to the Minister
In his application initiating these proceedings the applicant stated:
Unrepresented and seeking to retain a solicitor. Currently engaged in negotiations with ….
In his amended application filed on 30 July 2012 the applicant stated:
1.Unrepresented and seeking to retain a solicitor as of 5 April 2012.
2.3 day delay in arranging justice of the peace to witness affidavit supporting application while in detention at Villawood.
The latter information was repeated in the applicant’s affidavit filed on 27 July 2012.
It is apparent from the fax header on the initiating application that the applicant sent that document to the Court from VIDC at about 4pm on 5 April 2012. This was only two days late. It is unclear why the application was not actually filed by the Court’s registry until the following week although it appears that this related to the closure of the registry at Easter. Whatever the case, it is apparent that the applicant’s delay in at least attempting to commence the proceedings was not great.
The Minister opposed the grant of an extension of time but his objection was limited to the merits of the substantive application and the utility of extending time if the substantive application did not have reasonable prospects of success. He explicitly refrained from suggesting that a satisfactory explanation for the delay in commencing the proceedings had not been offered or that he would suffer prejudice if time to commence the proceedings were to be extended.
I accept that the applicant was unrepresented at the relevant time, that he had been seeking representation and had experienced a delay in swearing or affirming (it is not made clear) the affidavit which had to be filed with the initiating application. In those circumstances I consider that the applicant has provided a satisfactory explanation for the delay in commencing these proceedings.
I also accept that no question of prejudice to the Minister arises.
Reasonable prospects of success
The next question to be considered is whether, if time were to be extended, the substantive application would have reasonable prospects of success.
Breach of s.424A
Section 424A of the Act relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) …
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
The applicant alleged that the Tribunal should have, but failed to, notify him of the information contained in his then-migration agents’ letter of 15 December 2011 to the Minister’s department. The applicant submitted that because that letter described his claims as artificial it implied that he was lying in the statements he made in support of his application for a protection visa and did not believe the claims he was making. The applicant alleged that this letter therefore contained information which the Tribunal would have considered would be the reason or a part of the reason for affirming the decision under review. In this connection, the applicant also submitted that the delegate’s initial finding that his claims had no merit and had been concocted to provide a basis for the protection visa application were based on the contents of the 15 December 2011 letter and the Tribunal would have referred to that letter to understand why the delegate reached his conclusions.
The applicant submitted that his written acknowledgment in the notice pursuant to cl.2.17(b) of the Code of Conduct also constituted information within the meaning of s.424A.
As part of this argument, the applicant submitted that the two documents in question were not designed to advance his interests but to protect his migration agents from the consequences of lodging what they believed to be a hopeless claim. In this regard, the applicant argued that there was nothing in the Code of Conduct which required that a written acknowledgement under cl.2.17(b) be disclosed to the department, the Minister or the Tribunal. The applicant submitted that in such circumstances the information in question had been given by the migration agents in their own interests and not on his behalf.
Further in this regard, the applicant deposed in his affidavit filed on 27 July 2012 that, until the present proceedings, he had been unaware of the 15 December 2011 letter and he had not authorised his migration agents either in December 2011 or subsequently to tell the Minister or the Tribunal that his application was artificial or hopeless. The applicant submitted that his assertion that he was unaware of and had not authorised the disclosure of the letter or the written acknowledgment was supported by the following evidence:
a)he signed a statutory declaration attesting to the truthfulness of his claims;
b)he was in detention at the relevant time;
c)the content of the letter went above and beyond the written acknowledgement;
d)he signed the acknowledgment once but it was disclosed twice;
e)the written acknowledgment did not authorise its disclosure to the Minister or the Tribunal;
f)he pursued his claim with and before the Tribunal and did not seek ministerial intervention as foreshadowed in the letter; and
g)he sought additional time before and during the Tribunal hearing to gather evidence and also sought an adjournment to obtain representation, conduct which was inconsistent with him not believing that his claims were true.
The applicant submitted that the meaning of “applicant gave” in s.424A(3) should be construed to mean authorised disclosures and not every piece of information given by a migration agent purportedly on behalf of an applicant. He submitted that if this construction were not accepted there would be no room for s.424A(3)(b) or (ba) to take account of mistake, error or fraud by an agent. The applicant also submitted that the underlying purpose of s.424A was to ensure that applicants were not taken by surprise during the review process. He submitted that it would be contrary to that purpose to construe “applicant gave” in s.424A(3) to include unauthorised disclosures by migration agents.
The applicant further submitted that his former migration agents did not even have ostensible authority to send the two documents to the department because cl.2.1(a) of the Code of Conduct required a registered migration agent to act in the legitimate interests of his or her client. He submitted that the actions of his former migration agents could only be characterised as “counter-productive” to his case and, in the circumstances, a strong inference was available that they had been acting in their own interests and not in his.
The applicant also submitted, by reference to Tuckiar v R (1934) 52 CLR 335, that a migration agent who was also a solicitor did not have a general implied authority to disclose information prejudicial to his or her client.
The applicant submitted that because he did not authorise the disclosures, the information in question did not fall within the exceptions to the operation of s.424A(1) found in s.424A(3) and that accordingly the Tribunal should have put that information to him for comment.
Consideration
The outcome of the applicant’s first allegation turns on whether the letter of 15 December 2011 and the written acknowledgement purportedly pursuant to cl.2.17(b) of the Code of Conduct were documents which “the applicant gave during the process that led to the decision … under review”. Unless they were, the information they contained did not fall within the exception to the operation of s.424A(1) found in s.424A(3)(ba) and thus should have been given to him. In this connection, the applicant has deposed that he never authorised his migration agents to write that letter or to tell the Minister or the Tribunal that his application was artificial or hopeless. Indeed, he has deposed that all the information in his protection visa application was true, which necessarily implies that he disagreed with his agents’ assessment that his claim to have a well-founded fear of persecution lacked merit.
The applicant was required for cross examination on his affidavit but, because he refused to travel in handcuffs from the carpark under the commercial office building in which the hearing of this application was conducted to the courtroom, he did not attend as required. A contested application made at the outset of the hearing, and before the applicant’s arrival, that he be able to travel from the carpark to the courtroom without handcuffs was refused for the reasons given at the time. Despite his opposition to that application, the Minister accepted that the applicant’s objection to being handcuffed was genuine and not a device to avoid cross examination. In the circumstances I draw no adverse inference from the applicant’s absence at the hearing and his unavailability for cross examination.
Nevertheless, the fact that the evidence contained in the applicant’s affidavit of 27 July 2012 could not be tested by cross examination lessens the weight it will be given. Further, having been required for cross examination the applicant would have been aware that the Minister did not accept everything that was said in the affidavit. On the other hand, however, and assuming that client legal privilege would not have been an impediment, the Minister did not adduce any evidence from the applicant’s migration agents which might have thrown light on why they communicated with the department and with the Tribunal in the way they did.
The letter of 15 December 2011 is expressed in more pessimistic terms than the written acknowledgement. The former states that the applicant “cannot” meet the criteria for the grant of a protection visa whereas the latter speaks of his application having “little prospects [sic] of success”. Even so, the acknowledgement was, amongst other things, a document created by reference to cl.2.17(b) of the Code of Conduct which speaks of agents advising their clients if their applications are vexatious or grossly unfounded. It can be inferred that the applicant’s agents had him sign the written acknowledgment because, at least in their assessment, his claim for protection did lack merit.
It is reasonably apparent that the agents also had the applicant sign the written acknowledgment to comply with their obligation under cl.2.17(c) of the Code of Conduct which states that if, having received advice in accordance with cl.2.17(b), the client wishes to lodge an application, the agent must obtain that client’s written acknowledgment that the cl.2.17(b) advice has been given. In this case, and although not required by cl.2.17, the acknowledgement signed by the applicant also expressly authorised his agents to disclose it to the Minister’s department which they did by enclosing it with the 15 December 2011 letter.
It is plain that regardless of how the applicant may have viewed his circumstances, his agents considered that he had no realistic chance of being granted a protection visa either by a delegate of the Minister or by the Tribunal. Further, the applicant had expressly authorised them to advise the Minister’s department of this. In this regard, there is no material distinction between the Minister and the department he administers and the applicant’s attempt to draw such a distinction in his affidavit of 27 July 2012 raises no issue of relevance to the present proceedings. Also, once the information had been provided to the department, it would be expected to form part of the file which would find its way to the Tribunal pursuant to s.418(3) of the Act and so the applicant’s agents’ separate provision of the written acknowledgement to the Tribunal had no relevant significance.
The question arises why the applicant was requested to authorise the provision of the written acknowledgment to the department and why he gave that authorisation. In my view, the answer lies in the content of the agents’ letter of 15 December 2011. That is to say, whatever the applicant’s views of his situation and the genuineness of the allegations made in his visa application, his agents believed that his best chance of securing a visa lay in a favourable exercise of ministerial discretion pursuant to s.417 of the Act. That being so, the application and review process was really no more than a procedure which had to be completed in order that a precondition to the existence of the discretion could be met. It is that approach to the applicant’s situation which the letter of 15 December 2011 reflects and one whose propriety was publicly confirmed by the applicant’s authorisation of the disclosure of his written acknowledgement.
In his affidavit of 27 July 2012 the applicant stated that he signed the written acknowledgment because he understood that he had to do so in order “to lodge my Application for a protection visa”. Because the applicant did not attend for cross examination it is unclear whether he means by this that without his signature on the document his agents would not proceed further or that without that signed document his application would not be accepted by the department. Given the terms of cl.2.17 of the Code of Conduct, I conclude that it was the former.
In his affidavit the applicant says that he did not authorise his agents to send the letter or to describe his claim to the government in pessimistic terms. However, I conclude that even if the applicant was not aware of the precise steps his agents were going to take, he was aware of the overall strategy expressed in the letter of 15 December 2011, which was to recognise the migration agents’ judgment that departmental and Tribunal approval of the visa application would not be forthcoming and that Ministerial intervention provided the best chance of a successful outcome. It can be inferred that the applicant’s migration agents also judged that it was best to be completely candid with the department and that the applicant agreed. These are the appropriate inferences to be drawn from the authority which the applicant gave his agents to disclose the written acknowledgement to the department. That being so, his agents’ communications with the department and with the Tribunal were not, in reality, adverse to his interests, or at least not in conflict with the approach which was being taken to securing approval of the visa application. For those reasons, I do not find that the migration agents’ communications were designed simply for their own protection. Rather, I conclude that they were well within the general authority which the migration agents undoubtedly had to endeavour to obtain for the applicant the outcome he sought.
For these reasons, I find that the information which was contained in the letter of 15 December 2011 and in the written acknowledgement under cl.2.17(b) of the Code of Conduct was information which was supplied by the applicant, albeit through the medium of his agents, during the process that led to the delegate’s decision. As such, it was not information which s.424A(1) required the Tribunal to supply to the applicant and so it committed no error by not doing so.
Breach of s.425
The applicant submitted that he was advised by the Tribunal during the course of its hearing that the names of the people whom he believed might harm him on his return to Fiji would not be very helpful or make much of a difference to whether it believed his claims. At p.16 of the transcript, which was annexed to the affidavit of Justin Dupont Smith affirmed on 24 July 2012, the Tribunal is recorded as having said:
Well you’ve told me that you believe that somebody will harm you so I need to consider whether I believe your claim. … I need to consider whether I think that will lead to a real chance of you being harmed for a convention reason. So whether or not [you] give me names I don’t think that is really going to make much difference.
… I appreciate that you have made that claim I need to consider whether I accept it and and whether I believe there is a real chance of that happening. So having a name or not having a name is not really going to help me very much.
The applicant submitted that, because of these statements, he did not provide the Tribunal with the names of the individuals whom he believed might harm him. The applicant submitted that despite telling him that such evidence would not make a difference to its determination, the Tribunal went on to reject his claim to fear persecution in Fiji based (at least in part) on his inability to provide details about the individuals he claimed to fear. In para.44 of its reasons the Tribunal said:
The applicant had suggested that he has received threats. The Tribunal finds this claim to be far-fetched. The applicant has not offered any details about the individuals who had been concerned about his expression of opinion and the resultant disturbance, nor of their contacts with the Fijian military or the police. The existence of such connections appears to be nothing but a mere assertion by the applicant.
The applicant submitted that the level of detail he was able to provide about persons he claimed to fear in Fiji was an issue that arose in relation to the decision under review. He submitted that the Tribunal’s statements quoted at [43] above discouraged him from giving evidence on this issue as he believed that it would not make a difference to his case. The applicant submitted that the Tribunal’s discouragement effectively denied him a real and meaningful opportunity to provide further evidence of his claims and that it therefore breached s.425 of the Act.
Consideration
The applicant has deposed in his affidavit of 27 July 2012 that because the Tribunal told him that the names of the persons he feared might harm him would not make a difference to its decision, he did not gather evidence of their names. So much can be accepted. However, it is significant that the Tribunal did not base its decision on the lack of evidence concerning the names or identities of the applicant’s fellow prisoners but on the lack of evidence concerning their “details”. While that word, when used in connection with an individual, normally embraces that person’s name, it goes beyond that. A person’s name is only one of their particulars or “details”.
The relevant part of the transcript of the Tribunal’s hearing makes it plain that the Tribunal did not consider that the mere names of the former prisoners in question would be of any determinative significance. Moreover, it made it clear to the applicant that it had to decide whether the events in question had occurred, which was an obvious invitation to place any potentially persuasive evidence before it. Later, in para.44 of its reasons, the Tribunal was not saying that the applicant’s failure to provide the names of the former prisoners with whom he had fallen into dispute was the reason why his claim to fear those persons was not accepted. Rather, the Tribunal should be understood to be saying there that the applicant’s claim to have received threats from former fellow prisoners was far-fetched because overall he had failed to supply sufficient information about his former fellow prisoners to make the claim credible.
In the particulars of this allegation it was also said that the Tribunal’s statement concerning the irrelevance of the names of the former prisoners caused the applicant to fail to seek additional information about those persons. However, as the applicant’s affidavit contained no evidence to this effect, there is no factual basis to conclude that the Tribunal breached s.425 on this basis.
For these reasons, the Tribunal was not in breach of its obligations under s.425 of the Act as alleged.
Reasonable apprehension of bias
The applicant submitted that if one were to read the transcript or listen to the sound recording of the Tribunal hearing, a strong inference could be drawn that the Tribunal was not genuinely testing the applicant’s claims but was instead asking questions and making comments designed solely to advocate its “unshakeable position” that those claims were not credible. In his written submissions the applicant referred to four matters which, he said, suggested that the Tribunal had prejudged the question of whether he would face a real chance of persecution in Fiji because of his political opinion.
As to the first of these matters, the applicant submitted that the Tribunal queried the Convention reasons for his claims on four separate occasions even though those reasons had been clearly stated in his protection visa application. The applicant submitted that at the Tribunal hearing he had also expressed, consistently with his application, why and how he believed he would be targeted in Fiji. He submitted that the Tribunal’s repeated questions on these matters indicated that it was ignoring his answers and was not engaging with his responses. The applicant submitted that given that these issues had already been ventilated and clearly articulated in his evidence, it could not be said that the Tribunal was still trying to understand his claims or provide him with an opportunity to respond. The applicant submitted that it could be inferred from these matters that anything he said would not have made a difference to the Tribunal.
The second matter the applicant referred to as being suggestive of prejudgment on the Tribunal’s part was its purported failure to confirm or clarify who George Speight was, even though the applicant twice gave evidence at the hearing that George Speight’s cousin was one of the native Fijians who had been in prison with him. The applicant submitted that as a specialist tribunal dealing with the refugee claims of an Indo-Fijian, a reasonable observer would expect the Tribunal to know that George Speight was a prominent figure in the Fijian coup in 2000, although it could be inferred from the Tribunal’s incorrect spelling of “Speid” in its decision record that it was not aware of this fact. The applicant submitted that the Tribunal ignored his evidence about George Speight in circumstances where an issue arising in relation to the decision under review was the lack of detail in his claims. He submitted, essentially, that a fair-minded lay observer would apprehend that the Tribunal ignored his evidence because it had already reached a conclusion on the applicant’s claims.
As to the third matter, the applicant referred to the following exchange at the Tribunal hearing:
SZRIQ:… I will have no one to go to because the people that are targeting me will have members in the police force and in the army and their connections might how can I say might stop me from getting help …
Tribunal:Fiji is a large country. You can’t possibly mention that that the people that you have been in jail with have connections with every single part of the military or police. …
The applicant submitted that Fiji was not, in fact, a large country and was very small relative to Australia. He submitted that a fair-minded observer would infer a possibility that the Tribunal’s mischaracterisation of Fiji suggested that it was actively advocating against the applicant’s claims.
The fourth matter that the applicant referred to was the Tribunal’s failure to put to him for comment the letter of 15 December 2011 and the notice pursuant to cl.2.17(b) of the Code of Conduct in circumstances where it knew that his migration agent was no longer acting for him.
In his address to the Court, the applicant also referred to other statements made by the Tribunal which, he said, were clearly adverse to his claims. For example:
I mean there is no reason what so ever for the Fijian authorities to target every single such person. That makes no sense …
Do you have any basis whatsoever for any of those claims or are you just saying those things …
He also referred to the following exchange:
Tribunal:The entire claim that you are making just seems a bit you know is of some concern to me.
SZRIQ:Too far-fetched.
Tribunal:That’s right. Because you’re in jail you express some political views there is no reason whatsoever why anybody in Fiji would actually care about the views you have expressed.
The applicant submitted that the Tribunal’s adverse statements, the statements quoted at [43] above and what he described as its repetitive, formulaic and unresponsive questioning style gave rise to an inference that the Tribunal was unwilling to change its mind about his claims regardless of the evidence that he might have produced, thus giving rise to a reasonable apprehension of bias.
Consideration
I have read the transcript and listened to the sound recording of the Tribunal hearing. Having done so, I find that the matters to which the applicant has pointed as making out the basis of his allegation of apprehended bias do not support a finding of that sort.
In relation to the first matter, I do not find that the Tribunal ignored the answers which the applicant gave to its questions. Instead, I find that the Tribunal’s questions were responsive to the evidence which the applicant gave and indicated engagement with that evidence. I am not satisfied that the Tribunal’s statements at its hearing concerning the difficulty it was having in understanding the claims made by the applicant was evidence of a mind not open to persuasion or that a fair-minded and informed lay observer might apprehend that that might have been the case. The sound and written records of the Tribunal hearing do evidence that the Tribunal had difficulty grasping aspects of the applicant’s claim but to conclude from this that it might not have had an open mind is to draw too long a bow. Such a conclusion might be open if the Tribunal had given up the struggle to understand but that did not happen in this case. The Tribunal continued to seek clarification until it was satisfied that it understood what the applicant was alleging. Such persistence evidences quite the opposite of a closed mind.
The applicant’s submissions on the second matter depend on an acceptance that the Tribunal was in some way obliged to pursue the applicant’s evidence concerning the cousin of George Speight having been with him in gaol at Windsor, on the western fringe of Sydney. No real basis for this proposition was advanced and it is not apparent that the Tribunal needed to pursue this issue. Further, the submission depends heavily on an assumption that the Tribunal did not know who George Speight was and thus the significance of the applicant having been imprisoned with his cousin. This assumption was supported by the misspelling of George Speight’s surname in the Tribunal’s reasons and, in a circular fashion, by the fact that at its hearing the Tribunal did not confirm or clarify who George Speight was. Having listened to the sound recording as well as having read the transcript of the Tribunal hearing, I am not satisfied that the Tribunal was ignorant of the identity of George Speight. It simply appears that he and his cousin were not as significant to the Tribunal’s considerations as the applicant thought they should have been. The transcript suggests that this assessment was based on what the Tribunal understood to be the commonplace nature of violence in prisons and the applicant’s lack of political significance. That appreciation by the Tribunal of George Speight and his cousin’s relevance to its review would not provide a proper basis for a fair-minded lay observer to apprehend the possibility that the Tribunal was biased.
In relation to the third matter, the Tribunal’s statement that Fiji is a large country was unusual, particularly as it was said in Australia. However, read in context this statement does not refer to the Fijian landmass, even if it might be an accurate reflection of that country’s area when all its islands and the sea in between are considered, but of Fijian society. What the Tribunal was essentially saying was that Fijian society was of a size where everyone did not know everyone else. This was an appropriate proposition to put to the applicant given the nature of his claims and one which would not support a reasonable opinion that the Tribunal might have been biased.
The fourth matter raised in the written submissions concerned the conduct considered earlier in these reasons in connection with s.424A of the Act. The fact that the Tribunal did not put information to the applicant when it had no obligation to do so, and in circumstances where it could reasonably be assumed that the applicant was aware of that information in any event, provides no proper basis to apprehend the possibility of bias on the part of the Tribunal.
As to the matters advanced in addresses, to the extent that the Tribunal’s questions were repetitious I conclude that this arose out of the Tribunal’s need to understand exactly what it was the applicant was telling it. The characterisation of the Tribunal’s questions as formulaic seems to be a complaint that it was aware of the criteria for the grant of a protection visa and moulded its questions to those issues. Such conduct does not suggest bias.
With one exception, the other matters raised in addresses have been dealt with earlier in these reasons. That remaining matter is the assertion that the Tribunal’s adverse statements during its hearing of the applicant’s review application were suggestive of bias. The transcript and, more particularly, the sound recording of that hearing indicate that the Tribunal was, indeed, sceptical of the applicant’s claim to fear persecution in Fiji because of events in the NSW prison system. However, that is not the test of bias or a proper basis to apprehend the possibility of bias. As Gleeson CJ and Gummow J said in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 in the context of a claim of actual bias:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias. (at 531 [71])
In that case, Hayne J agreed with their Honours and further observed:
Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:
“preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded”. (Emphasis added)
Allegations of apprehended bias through prejudgment are often dealt with similarly. (at 564 [185]-[186]) (references omitted)
Specifically in the context of apprehended bias it was said in Johnson v Johnson (2000) 201 CLR 488:
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (at 493 [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)
Scepticism on the part of the Tribunal is not an appropriate basis to infer the possibility of bias. In this case, I am not persuaded that the Tribunal’s statements went beyond scepticism and evidenced the possibility of a mind not open to persuasion.
For these reasons the allegation of apprehended bias is not made out.
Conclusion
Although I have concluded that the applicant has provided a reasonable explanation for the delay in commencing these proceedings, as the allegations in the substantive application do not have reasonable prospects of success, I conclude that it would not be in the interests of the administration of justice to extend the time within which these proceedings may be brought.
Consequently, the application for an extension of time to bring the proceedings will be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 13 September 2012
2
4
1