FEDERAL COURT OF AUSTRALIA
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
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Details
- AGLC
- SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
- Case
- [2013] FCAFC 80
- Decision Date
CaseChat Overview and Summary
This appeal concerns the fairness of a hearing before the Refugee Review Tribunal. The appellant, a citizen of Nepal, appealed the Federal Circuit Court's decision that there was no reasonable apprehension of bias in the conduct of the Tribunal during the hearing. The appellant argued that the Tribunal member's conduct during the hearing created a reasonable apprehension of bias, leading to an unfair hearing. The appeal centred on two primary issues: whether the Tribunal's conduct during the hearing gave rise to a reasonable apprehension of bias, and if the Federal Circuit Court erred in its consideration of the relevant inquiry.
The court examined the conduct of the Tribunal member during the hearing, including her statements at the beginning and end of the hearing, and the opportunity given to the appellant to comment. Despite the procedural safeguards in place, the court concluded that the manner in which the hearing proceeded led a reasonable bystander to conclude that there was little the appellant could say to change the Tribunal member's pre-formed views. The court found that the Tribunal member's firm expression of her conclusions before the hearing was completed created a reasonable apprehension of bias.
Accordingly, the court found that the Federal Magistrate erred in not finding a reasonable apprehension of bias. The court set aside the Federal Circuit Court's orders and remitted the application for review to the Refugee Review Tribunal to be determined according to law. The respondent was ordered to pay the appellant's costs of the appeal.
The final orders were that the appeal be allowed, the decision of the Refugee Review Tribunal be quashed, the application for review be remitted to the Tribunal, and the respondent pay the appellant's costs of the appeal.
The court examined the conduct of the Tribunal member during the hearing, including her statements at the beginning and end of the hearing, and the opportunity given to the appellant to comment. Despite the procedural safeguards in place, the court concluded that the manner in which the hearing proceeded led a reasonable bystander to conclude that there was little the appellant could say to change the Tribunal member's pre-formed views. The court found that the Tribunal member's firm expression of her conclusions before the hearing was completed created a reasonable apprehension of bias.
Accordingly, the court found that the Federal Magistrate erred in not finding a reasonable apprehension of bias. The court set aside the Federal Circuit Court's orders and remitted the application for review to the Refugee Review Tribunal to be determined according to law. The respondent was ordered to pay the appellant's costs of the appeal.
The final orders were that the appeal be allowed, the decision of the Refugee Review Tribunal be quashed, the application for review be remitted to the Tribunal, and the respondent pay the appellant's costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by the Federal Circuit Court on 26 March 2013 be set aside and in lieu thereof it be ordered:
(i) the decision of the Refugee Review Tribunal dated 21 August 2012 be quashed and the application for review be remitted to that Tribunal to be determined according to law;
(ii) the first respondent pay the applicant’s costs.
3. The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The Amended Notice of Appeal to this Court from the Federal Circuit Court raised two grounds, as follows:1.The Court erred in failing to find conduct of the Second Respondent Tribunal in the course of the hearing gave rise to a reasonable apprehension of bias.2.The Court erred in taking into account considerations irrelevant to its inquiry as if the relevant enquiry was actual bias, rather than a reasonable apprehension of the possibility of bias.In my view, ground 2 added nothing to ground 1, it being accepted by the parties that if this Court came to a different conclusion to the primary judge on the question of a reasonable apprehension of bias then the appeal should be allowed.Background The statement of decision and reasons by the Tribunal sufficiently identify the background to the appeal. The appellant, a citizen of Nepal, is a single male, born on 14 January 1989, who arrived in Australia on 18 February 2009. He is a Hindu. In summary, the Tribunal said, the appellant said that his father was a businessman and a member of the Communist Party of Nepal (United Marxist Leninist) (CPN(UML)). The appellant said that when he was 19 he had a Muslim girlfriend, called Jasmine, who became pregnant. Jasmine’s father got together his Muslim associates “who changed our affair to political and religious matter”. They attacked the appellant’s family home and damaged their furniture after reporting the affair to the Young Communist League (YCL). Before that time, the appellant and his father, both active members of the CPN(UML), used to give them donations. The YCL physically assaulted his father, his brother, and the appellant. The family could not obtain protection from the government, despite trying to do so on several occasions. The appellant said that the whole Muslim community was against him and made up stories about him which made his life harder. The appellant said he could not return to Nepal because Muslim boys were still throwing drink bottles at his family’s house and the YCL had threatened to kill the appellant if he returned. His government could not help him. The appellant’s adviser stated that the appellant feared persecution as a member of a particular social group because he was Hindu and had a relationship with a Muslim girl which resulted in her pregnancy. He also feared persecution for reason of his political opinion because his father was a businessman and an active member of the CPN(UML). The YCL used to ask his father for donations for the Maoists but his father refused to donate money. The appellant said he was also an active member of the CPN(UML). The YCL sided with the Muslim community against the appellant and his family who were assaulted by the YCL. The appellant’s adviser submitted that the YCL were attempting to use the appellant’s relationship with Jasmine as an opportunity to threaten the family. The appellant was hopeful that Jasmine’s family would forget the past. However, the situation had become worse. The appellant had said that Jasmine had left the village. His parents were not sure where she was. His parents had asked him not to return.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
This conclusion as to there being a reasonable apprehension of bias is not denied by reason of: ·the length of the hearing itself – a two hour hearing, perhaps, not itself evidencing any “rush to judgment” to reach a predetermined conclusion or result; ·the fact that at the outset of the hearing the Tribunal member informed the Appellant that she would “point out to you anything that I think might be a problem with your claims” and that he would have “the opportunity during the hearing to comment on any such problem”; ·the fact that at the conclusion of the hearing the Tribunal member asked the Appellant: “… is there any comment you would like to make at this stage, or would you like to think about those things and provide something in writing for me within the next, say, couple of weeks”; and ·the fact that a submission was made after the date of the hearing and was in fact taken into account by the Tribunal member. Such considerations do not outweigh the conviction with which the Tribunal member expressed her conclusions during the course of the hearing and before the hearing was completed. Given the manner in which the hearing proceeded, a reasonable bystander might conclude that there was nothing much that the Appellant could say to shift the Tribunal member from the views she had previously expressed. CONCLUSIONS The Federal Magistrate, it is respectfully concluded, erred in not finding that there was a reasonable apprehension of bias. That reasonable apprehension of bias had been “firmly established”. A reasonable bystander would have more than a “vague sense of unease”; he might form the view that there was little if anything the Appellant could say which would shift the Tribunal member from her view that his claims were to be disbelieved. Leave to file a Notice of Contention was refused. The Respondent Minister sought to contend that the Appellant had waived any entitlement to rely upon an argument as to there being a reasonable apprehension of bias by reason of his not raising any complaint with the Tribunal member: Vakauta v Kelly (1989) 167 CLR 568. But no satisfactory explanation was advanced as to why a Notice of Contention had not been filed within 21 days as required by r 36.24 of the Federal Court Rules2011 (Cth). That time, it may be accepted, can be extended where to do so would occasion no prejudice to an appellant and where an extension of time would be consistent with the proper administration of justice. Nor was any explanation provided as to why the argument as to waiver had not been raised before the Federal Magistrates Court. There is, moreover, the very real prospect that any argument as to waiver would depend upon questions of fact which have not been previously addressed. It is inappropriate to seek to raise by way of a Notice of Contention an argument which is “purely an issue of fact” and which could have been dealt with by evidence: cf. Park v Brothers [2005] HCA 73 at [34] to [35], 80 ALJR 317 at 324 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
Ratio Decidendi
Legal Principle Established
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