SZSFS v Minister for Immigration

[2014] FCCA 2878

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFS & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2878

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal was biased – allegation that the Tribunal’s decision affected by jurisdictional error by reason that a reasonable apprehension of bias attached to it and by reason that the Tribunal applied an incorrect test.

Legislation:

Migration Act 1958, ss.5, 36, 91R, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

First Applicant: SZSFS

Second Applicant: SZSFT

Third Applicant: SZSFU

Fourth Applicant: SZSFV

Fifth Applicant: SZSFW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2698 of 2012

Judgment of: Judge Cameron

Hearing date: 9 September 2013

Date of Last Submission: 18 October 2013

Delivered at: Sydney

Delivered on: 11 December 2014

REPRESENTATION

Solicitors for the Applicants: Mr C. McArdle of McArdle Legal

Counsel for the First Respondent: Mr M. Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the Court record to “Minister for Immigration and Border Protection”.

2. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2698 of 2012

SZSFS

First Applicant

SZSFT

Second Applicant

SZSFU

Third Applicant

SZSFV

Fourth Applicant

SZSFW

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of Egypt who arrived in Australia on 8 May 2011.  On 11 May 2011 the first applicant lodged an application for a protection visa.  His wife, the second applicant, and his three daughters, the third, fourth and fifth applicants, were included in that application as members of his family unit.  In his protection visa application the first applicant alleged that he feared persecution in Egypt because of his political opinion and religious views.  He also alleged that he feared that his daughters would be forcibly circumcised.  On 25 July 2011 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicants’ claims for protection visas were set out on pages 5-58 of the Tribunal’s decision. Relevant factual allegations are summarised below.

Protection visa application

1. The first applicant made the following claims in his protection visa application:

   a)he was Muslim.  He spoke, read and wrote English;

   b)from 2000 until 2006 he worked as a dentist in the Egyptian Ministry of Health;

   c)he left Egypt for Malaysia in March 2006 because his salary was too small, there was corruption in Egypt and he was discriminated against by the government for his anti-government political opinion.  He had received many threats from the government and had been afraid;

   d)he worked as a dentist in Malaysia for five years but his contract was not renewed.  He decided to return to Egypt but the revolution occurred and he could not return because it was not safe.  He was advised by his family in Egypt not to return;

   e)if he returned to Egypt his and his family’s lives would be in danger because there was no government there.  His children could be kidnapped and abused and he would be arrested and imprisoned without trial; and

   f)Egypt was unstable and out of control.  There were no police and the army patrolled the streets.  The authorities would not be able to protect him from harm because they were busy with internal problems.

2. The application forms filled out by the second applicant and on behalf of the third, fourth and fifth applicants indicated that they were Muslim. 

3. In support of their applications the applicants submitted a letter from Legacy Point Resources in Malaysia dated 9 April 2011 inviting the first and second applicants to a parent-teacher conference in relation to their eldest daughter, the fifth applicant, together with a timetable showing various subjects, including Bible study.

4. At a departmental interview on 21 July 2011 the first applicant relevantly claimed that because he was liberal, open-minded, mixed with people of other religions and had sent his daughter to Bible school, people would call him a spy.  He claimed that his mother had told him that he was not a Muslim.

Tribunal

1. On 29 July 2011 and 5 August 2011, prior to the Tribunal hearing, the applicants sent to the Tribunal various articles about the situation in Egypt.  On 29 September 2011 they provided a psychologist’s report from a Ms Mary Higson which stated that she had seen the first applicant on 2 and 20 September 2011 and that he had requested an English speaking counsellor.  Ms Higson stated that the first applicant said that he could not return to Egypt because of political and personal problems there, including the fact that he had an uncle who wanted to take all his money.  She stated that the first applicant said that he would kill himself with cyanide if he had to return to Egypt.  The report concluded that it was not possible to establish whether the first applicant met the criteria for a mental disorder.

2. On 8 December 2011 the applicants submitted a second report from Ms Higson.  The report stated that she had seen the first applicant a further three times, on 27 September, 12 October and 1 December 2011 and that he met the criteria for adjustment disorder.  The report stated that the first applicant said that he had contacted the Ombudsman and told him that he was contemplating suicide.  The first applicant was then taken by the police to hospital where he was admitted as an involuntary patient and discharged after four hours.

3. The applicants attended a Tribunal hearing which took place over four days: 15 December 2011, 8 February 2012, 10 February 2012 and 8 May 2012.

First hearing day

1. On 15 December 2011 the first applicant made the following claims:

   a)when he finished high school he had attempted to become an engineer in the Egyptian army.  He had passed all the examinations except the last one, which was a presentation, during which he was belittled and told that his uncle was just a grocery man.  He decided he could become a dentist in the army but was again rejected.  The general who had rejected him later became part of the Supreme Council of the Armed Forces (“SCAF”).  He lodged a complaint and had been arrested, detained for two weeks and tortured and beaten.  He was released after he told them he would give up and do what he was told.  He was told not to lodge any more complaints against the army;

   b)when working for the Ministry of Health he was supposed to work in Cairo but was sent to a remote area for one year.  He returned to Cairo in 2002 and during that time he criticised the government by stating his opinions to family, friends and colleagues.  As a result, he was harassed, deprived of bonuses, refused a private sector job, had his wages cut for no reason and was told by some of his managers that if he did not keep quiet they would cut off his tongue;

   c)because of his continued criticism, he was transferred to another area, Helwyn in 2004 or 2005.  While in Helwyn he applied for leave and went to study a Masters degree.  The government had continued to pay him his monthly salary, which was not much;

   d)in his second year of studying, he was told that only 0.5% of the students would pass the Masters degree.  That made him desperate so he left for Malaysia;

   e)during a visit to Egypt with his family in April or May 2009 he was attacked and told he was an unbeliever and an infidel.  He had shown people pictures of various people in Malaysia, including Hindu people, and as a result had been sworn at and hit.  He could not tolerate it so he left his family and returned to Malaysia;

   f)when he was in Egypt his wife was harassed but when he went to report it, the police told him that she deserved to be harassed because she was beautiful and wore nice clothes;

   g)while in Egypt without him, his wife was subjected to two kidnap attempts whilst in taxis.  Her parents had told her to circumcise their daughters and to divorce him because he was an infidel;

   h)after he returned to Malaysia his wife telephoned him and told him that she could not live in Egypt because she was being harassed so his family returned to Malaysia in September 2009;

   i)he had not wanted to come to Australia but did so because his work contract had not been renewed in Malaysia and because of the revolution in Egypt;

   j)he did not believe in God or Allah and would be burned and killed because he was not Muslim.  No-one would marry his children or socialise with them.  The fundamentalists were in power and were preparing the country to be under fundamentalist laws; and

   k)he had earlier failed to claim that he had been tortured and that he feared that his daughters would be circumcised because he had been writing about what would happen in the future not what had happened in the past, he had not known he had to tell everything, there had been a language barrier at the departmental interview, with the result that he had been unable to express himself well, and he had had a fear about disclosing information about powerful people.

Second hearing day

1. On the second day of the Tribunal hearing the applicants produced letters from Dr Sanaa Guirguis, the applicants’ general practitioner. The first letter, dated 20 January 2012, stated that the first applicant suffered from severe anxiety and depression because he was extremely worried about returning to Egypt.  In the second letter, dated 6 February 2012, Dr Guirguis stated that the second applicant was suffering from severe stress and tension and was worried about the future.  Dr Guirguis stated that the second applicant had said that she was depressed because she had been circumcised as a child and since then had had some psychological and marital problems.  The second applicant told Dr Guirguis that she was terrified that if she returned to Egypt her family would circumcise her daughters against her will. 

2. The first applicant made the following claims on the second day of the Tribunal hearing:

   a)in 2003 or 2004 a homosexual Islamist man had attended his clinic and tried to touch him.  The man was an imam in the Salafist community and his brother was a Member of Parliament.  The man had called him a blasphemer and had a fatwa issued against him because he wanted revenge against him for mentioning what had happened.  When he had returned to Egypt for holidays the man had taken money from him and had said bad things about him;

   b)in May or June 2010 his wife and three daughters returned to Egypt because his wife had been told her mother was ill.  However, that had been an excuse to get her to return to Egypt so that she could divorce him.  Her family also raised the issue of her circumcising their children;

   c)his wife’s uncle was a Salafist, a group which was the same as the Muslim Brotherhood.  When his wife returned to Egypt in 2010 her uncle had tried to run over their eldest daughter because she had been dressed in shorts and a singlet.  His wife left Egypt before an appointment to circumcise their daughters.  She had gone “crazy” because she had had a bad experience with her own circumcision;

   d)he had initially planned to return to Egypt to see his mother after his contract in Malaysia was not renewed.  He had planned only to return temporarily and would have been able to protect his daughters;

   e)when the revolution in Egypt started, he created a Facebook page which was against the SCAF.  He also created a group against Marshal Tantawi.  One of his relatives who was a member of the group disappeared in March or April 2011.  He had only found out in July 2011, after his departmental interview.  He had not mentioned the claim at the first Tribunal hearing because he had been making his claims in chronological order and had only reached 2009;

   f)he had received threats that if he continued with his Facebook page he would have his Egyptian citizenship revoked;

   g)his mother had told him that in October or November 2011 the SCAF had taken her and his brother for three days of interrogation.  The authorities told his mother that he was a spy for Israel.  His family moved from their homes and he had not been able to contact them since shortly after their detention;

   h)since 2003 or 2004 he had believed that Islam was a political group, not a religion, and was affected by the Jewish religion.  He would be gaoled for his belief, have to divorce his wife or be killed;

   i)he had been beaten many times for expressing his religious opinions in coffee shops in his area.  He had also been beaten by three friends when he had returned to Egypt on holiday; and

   j)he would be targeted and killed for money on his return to Egypt.  He feared harm because he was an atheist, had a problem with the SCAF and refused to circumcise his daughters.

3. The second applicant made the following claims on the second hearing day:

   a)she had seen the first applicant’s Facebook page.  In February 2011 there had been a message from an Egyptian government official telling the first applicant that if he did not stop the group he would have his citizenship revoked but the page with that comment was no longer there;

   b)the first applicant had received many threatening comments; and

   c)since their arrival in Australia the first applicant had not posted any comments.  The second applicant then said he might have made some comments on the first day they arrived in Australia but that he stopped when his family in Egypt was detained. She then said that she remembered that he had made some comments on Facebook after they arrived in Australia.

Third hearing day

1. At the third hearing day, on 10 February 2012, the second applicant made the following claims:

   a)between 2004 and 2006 her husband was imprisoned for two weeks for his political and religious opinions.  He had also been imprisoned before they were married.  The second applicant later said that the first applicant had been injured when he was first interrogated and the second time had spent two or three days, or a week or two, being interrogated;

   b)the first applicant was dismissed from his job in Egypt and there was a legal action pending against him because he had stopped going to work;

   c)her uncle was a radical Salafist and he wanted her to divorce the first applicant because he was not a Muslim.  Her uncle had found out that he was not a Muslim straight after their marriage in 2004 and that is why she fled to Malaysia;

   d)when she returned to Egypt in 2009 she was sexually harassed because of the way she dressed and because of her and her husband’s ideas.  The people in her area were Salafists and had harassed her.  The Salafists had won the election and were more powerful.  She and her family could not move to another part of Egypt because the Salafists were all over the country;

   e)when she and her husband reported her harassment to the police, the police officer they spoke to told her that it was normal for her to be harassed because she was pretty.  The police officer also wanted to harass her;

   f)her manner of dressing had been a problem before 2009 but it became more of a problem in 2009 because of her husband’s religious issues;

   g)in 2010 she returned to Egypt on her own;

   h)everyone in her family wanted her daughters to be circumcised.  She could not bear that idea because she had been severely affected by her own circumcision when she was fourteen;

   i)if they returned to Egypt the authorities would circumcise her daughters under Sharia law or they would be kidnapped or killed.  She would be raped “every now and again” and, if she reported it to the police, they would rape her too.  She was also afraid of returning to Egypt because she and the first applicant were atheists; and

   j)if she had known the law she would have submitted her own protection visa application and would not have relied on the first applicant’s application because he was unable to express everything about her.

2. On 21 February 2012 the Tribunal wrote to the applicants giving them an opportunity to comment on or respond to certain issues arising out of their evidence.  On 11 April 2012, the applicants’ newly appointed migration agent responded to the Tribunal’s letter and submitted that:

   a)the departmental interview went for less than an hour and the delegate had asked a minimum of questions. The first applicant thought, because the delegate was kind, smiling, shook his hand and offered him water, that he was going to be granted a visa;

   b)the first applicant was very anxious and distressed and it was difficult to keep track of his claims; and

   c)the impression that the first applicant conversed well in English was incorrect.  He appeared to understand things when he might not have.

3. The Tribunal also received a country information summary on Egypt dated 13 April 2012 from Amnesty International.  The summary indicated that despite a 2008 ban, female genital mutilation was still widely practised and an entrenched tradition in Egypt.  It also indicated that atheists and apostates were not formally recognised by the state, were often subject to harassment by Egyptian authorities and faced criminal prosecutions.

Fourth hearing day

1. The applicants’ Tribunal hearing continued on 8 May 2012.  On that day the first applicant made the following additional claims:

   a)his family had started attending church but he did not believe in one God.  He had started attending a church in Fairfield East during Easter in 2012 and continued to attend it on Sundays.  It was a Fijian church and because they did not understand the language a nun there introduced them to an Arabic minister who had visited them at their home;

   b)they had started attending an Anglican church in February 2012 which was led by “Pastor Rick”.  They also attended another church with an Egyptian minister.  He could not explain the differences between the churches because he did not have enough information and did not have enough background about religion;

   c)he had claimed to be Muslim in his protection visa application because in Egypt religion was inherited and it was on his identification card.  He had stopped being Muslim in 2007 or 2008, when his daughter was born;

   d)there were two risks to his eldest daughter in Egypt.  The first was circumcision and the second was her Malaysian Bible study certificate;

   e)he could not move away from his family in Egypt so that his eldest daughter would not be harassed about her Bible studies because the situation was the same everywhere in Egypt and he did not have money;

   f)the money he had brought to Australia had run out within two months of their arrival, in July 2011.  He did not know why the psychologist’s report from Ms Higson stated that one of the reasons he feared returning to Egypt was because his uncle wanted to take all his money.  He did not remember telling the psychologist that and had problems with his memory; and

   g)he had had trouble speaking in English during his departmental interview in July 2011 which had led him to omit some of his claims.  However, in September 2011 he visited an English speaking counsellor because he had studied English very hard after his departmental interview.  He also found it easier to mention psychological terms in English because of his medical background.

1. The second applicant made the following claims:

   a)they had started attending the Villawood Fijian Church before Christmas (in 2011).  That church had referred them to another church where people spoke Arabic.  They also attended another church on Sundays and sometimes on Fridays which was led by “Pastor Rick”;

   b)she had made a commitment to Christianity while she was still in Malaysia and her daughter had been studying the Bible.  The second applicant later said she had not been a committed Christian in Malaysia, she had started to commit at Christmas and had made her decision at Easter.  She had been baptised at Easter at the Fijian church after attending on three previous occasions;

   c)when she was eight years old her grandmother had taken her to the doctor to be circumcised without telling her mother.  She had originally said that she had been circumcised at fourteen because that was what the first applicant had said to the Tribunal and she felt she had to agree with him;

   d)the first applicant’s paternal uncle had tried to take his money on the last occasion that he had visited Egypt.  The first applicant had forgotten about the incident; and

   e)her family found out that the first applicant was not Muslim when “the man came to the clinic”.

2. On the last hearing day the applicants’ migration agent produced submissions dated 8 May 2012.  It was submitted that there was a wide variation in the first applicant’s claims because he was a distressed and agitated person which made it difficult for him to explain the bases of his fear.  The agent submitted that the first and second applicants’ daughters were members of the particular social group of “the female gender” and had a ninety-five per cent chance of being forcibly circumcised.  It was submitted that if they were not circumcised they would experience feelings of being different and not belonging and when they became of marriageable age, their future husbands’ families would expect them to be circumcised.

3. The applicants’ migration agent also submitted the following documents:

   a)a letter from a mental health nurse, Vicky Stanton, stating that the first applicant had symptoms of depression and anxiety arising out his fear that his daughters would be circumcised and out of his beliefs and affiliations;

   b)a statutory declaration made by the second applicant on 2 May 2012 stating that she had been circumcised when she was eight years old and feared that her family would manage to organise the circumcision of her daughters;

   c)two letters dated 1 May 2012 from Emad Girgis, a clinical psychologist, stating that the first and second applicants suffered from adjustment disorder with anxiety and depression and recommending that they continue to live in a safe and secure environment;

   d)an email from the Rev Mr Sindel dated 6 May 2012 stating that the applicants had attended Lighthouse Community Church;

   e)a letter from a Millie Dower dated 6 May 2012 stating that she had first met the applicants at the Christian Mission Fellowship Church.  She stated that it would be difficult for them to return to Egypt because in their culture seeking asylum was considered a betrayal and the government would not look kindly on them; and

   f)a NSW Education internet printout dated 5 August 2012 providing the address of the Cavalry Chapel Christian School in Sydney.

4. On 10 June 2012 the Tribunal received further submissions from the applicants’ migration agent which said that:

   a)the applicants’ conversion to Christianity made them apostates and they could be killed under Sharia law;

   b)failed asylum seekers returning to Egypt were vulnerable and the applicants faced interrogation, arrest, torture and imprisonment on their return to Egypt;

   c)the first applicant had made Facebook entries on 5 July 2011, 22 July 2011, 8 August 2011 and 11 October 2011 which were political and called for the removal of General Tantawi; and

   d)the second applicant had misunderstood and actually had not been baptised.

5. Attached to the applicants’ agent’s submissions were the following documents:

   a)an email from Mr Sindel dated 29 May 2012 stating that the applicants’ desire to engage with the Christian faith was genuine;

   b)a letter from the Rev Matthew Le Claire of Parkside Church stating that the first applicant had converted to Christianity on 14 May 2012;

   c)a letter from the Rev Tarek Mekhail of the Arabic Calvary Chapel stating that the first and second applicants had been known to the church for two weeks and had shown their commitment to Christianity.  Mr Mekhail stated that they had requested baptism and would be baptised in the near future; and

   d)a letter from the team leader of an interdenominational Christian mission agency, Brendan Jones, stating that he had led the first applicant in a prayer of confession and acceptance and considered his confession to have been genuine.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons 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”) or pursuant to s.36(2)(aa) of the Act.

New claims and inconsistencies

1. On the basis of inconsistencies in their evidence and their raising of new claims throughout the visa application process, the Tribunal found that the first and second applicants were not credible witnesses and that they had not given truthful evidence or made genuine claims.  The Tribunal found that the applicants had fabricated and progressively embellished their claims in an attempt to enhance their application. It found that the new claims made by the applicants and the inconsistencies in their evidence undermined their credibility and their claims overall.

2. The Tribunal noted that the first applicant had raised for the first time at its hearing his claim to have been arrested, detained and tortured for two weeks in 2000.  The Tribunal found that the first applicant’s failure to refer to that claim earlier than he had undermined his assertions that the event had occurred and his credibility generally.  The Tribunal did not accept the first applicant’s explanations for failing to make that claim earlier than he did.  In this connection:

   a)the Tribunal did not accept the first applicant’s explanation that he had only written in his application form about what would happen in the future because he had referred in the application form to events in the past;

   b)the Tribunal did not accept that the conduct or length of the delegate’s interview satisfactorily explained the first applicant’s failure to mention certain claims;

   c)in relation to the first applicant’s claim that he had prepared his application in a hostel or hotel room in the presence of his family and without the assistance of a migration agent, the Tribunal did not accept that the first applicant would have needed an agent to tell him that he should include significant events in his application; and

   d)the Tribunal did not accept that the first applicant’s level of English was a satisfactory explanation for his failure to mention a significant claim.  In this regard, the Tribunal noted that:

   i)the first applicant stated in his application form that he could read, write and speak English and made claims in the form in English and attended the departmental interview without an interpreter.  The Tribunal accepted that the first applicant’s English was not at the level of a native speaker but it was not satisfied that language barriers impaired his presentation of his claims; and

   ii)the first applicant had attended six sessions with a psychologist without an interpreter, the first one six weeks after his interview with the delegate.  The Tribunal did not accept that the first applicant had managed to learn English in the six week period between his departmental interview and his first appointment with the psychologist.

Arrest and detention

1. The Tribunal’s view that the first applicant had fabricated his claim to have been arrested, detained and tortured by Egyptian military authorities was strengthened by the fact that his explanation, that he had not mentioned the claim earlier because he feared disclosing information about powerful people, contradicted his claims that he had been critical of the Egyptian authorities.  It noted that the second applicant had also given evidence which was contradictory of the first applicant’s claims concerning his alleged detentions, in terms of their number, duration and when they had occurred.

2. The Tribunal considered whether the medical and psychological evidence submitted by the applicants explained the omission of the claim.  It noted that none of the medical or psychological reports submitted by the applicants stated that the first applicant had been unable to give evidence or understand the proceedings and the first applicant did not claim to have been unable to understand the Tribunal proceedings.  The Tribunal thus found that that the first applicant had been able to understand the proceedings and participate at each of the hearings and that he had been able to understand the application form, the purpose of the interview with the delegate and to participate in the latter.  Whilst accepting Mr Girgis’s diagnosis that the first applicant had adjustment disorder with anxiety and depression, the Tribunal was not prepared to accept that the report was independent corroborative evidence of the first applicant’s symptoms as it was based on what he had told the psychologist.  The Tribunal concluded that although it accepted the existence of the first applicant’s psychological issues, based on the opportunity it had had to take evidence from him, it found that he had been eloquent, intelligent, articulate, able to express himself and able to tell it when he did not understand a question.  The Tribunal therefore found that the medical reports did not provide a satisfactory explanation for the first applicant’s omission of significant parts of his claim or his inconsistent and contradictory evidence. 

3. In relation to the second applicant, the Tribunal accepted that she also had adjustment disorder with anxiety and depression but found that this did not explain her differing evidence concerning the number of times the first applicant was detained and the nature of his detentions. 

4. The Tribunal concluded that the first applicant’s claim to have been arrested, tortured and detained was fabricated and untrue and that the second applicant had untruthfully supported it.

Circumcision

1. The Tribunal noted that the first applicant had raised for the first time at its first hearing day that he feared that his children would be forcibly circumcised by his wife’s family if they were returned to Egypt.  The Tribunal did not accept the first applicant’s explanations for failing to raise this claim earlier.  The Tribunal found that the first applicant’s failure to mention that claim until its hearing was not consistent with a parent genuinely fearing that such significant actions would be taken against his children.  In addition to the first applicant’s failure to mention the claim earlier, for the following reasons the Tribunal had serious doubts that the first and second applicants feared that their children would be circumcised if they returned to Egypt:

   a)the first applicant’s evidence that his wife had taken their children back to Egypt was inconsistent with his evidence that his wife’s circumcision had been a terrible event which had caused her pain and led to problems in their marriage and that she was terrified of it happening to their children;

   b)the first and second applicants gave inconsistent evidence about how they viewed the threat made to circumcise their children in 2009: the first applicant said that they took the threat seriously but his wife had had to return to Egypt to see her mother and the second applicant said she did not take the threat seriously and had not thought they would do it;

   c)the second applicant’s evidence that she did not take the threat seriously contradicted her evidence that the circumcision issue was one of great fear, sorrow and significance for her, that she still suffered psychological shock from it, that she was terrified of it happening to her children and that her family had employed devious and secretive means to have her circumcised;

   d)the second applicant gave inconsistent evidence about when her family threatened to circumcise her children;

   e)the second applicant had lied about her own circumcision, first claiming that it had occurred when she was fourteen years old, then claiming that it had occurred when she was eight years old and then later saying she had given the age of fourteen to corroborate her husband’s evidence.  The Tribunal noted that this was so even though the first applicant had said that the second applicant had been circumcised when she was eight years old; and

   f)the first and second applicants’ claim that in 2011 they had planned to return to Egypt temporarily to visit their mothers was inconsistent with their claim that the second applicant’s family wanted the children to be circumcised.

2. The Tribunal did not accept that threats had been made against the first and second applicants’ children, that the applicants had a subjective fear or that there was a chance that the children would be circumcised.  It concluded that the first and second applicants had fabricated their claims that there was a threat to circumcise the children and that they feared that their family would force the procedure on the children.  In that connection, the Tribunal accepted that the first and second applicants did not want their children to be circumcised and would not allow it to happen.  It found that the first applicant had the capacity to prevent any circumcision and to resist any pressure that might be put on him and his wife by her family.  The Tribunal found that the first applicant’s ability to support his family meant that there was no real chance that the children would be circumcised, even if it meant that he would need to keep the children away from his wife’s family.

3. Due to the first and second applicants’ lack of credibility and their preparedness to return to Egypt with the children in 2009, 2010 and 2011, the Tribunal did not accept that the community or any authorities had any power to force the children to be circumcised against their parents’ wishes.  Although the Tribunal accepted country information indicating that there was a significance prevalence of female circumcision despite a ban enacted in 2008, and that it would be serious and significant harm, the Tribunal did not accept that the first and second applicants considered it to be a genuine or real possibility for their children and was not satisfied that there was a real chance that the children would be subjected to circumcision by society or the authorities or that their parents would have them circumcised for that reason or not be able to protect them from any societal pressure resulting from the prevalence of the custom in Egypt.  The Tribunal did not accept that Egypt was a strict Islamic fundamentalist state but accepted that since the fall of the Mubarak government there had been considerable uncertainty about the future and that the then-president was from the Muslim Brotherhood.  However, it noted country information which indicated that the Muslim Brotherhood was not homogeneous and recognised that it would need to work within a consensus.  The Tribunal therefore found that there was no evidence to suggest that in the reasonably foreseeable future the authorities would require that the children be circumcised or that there was a risk that the children would be circumcised without their parents’ permission.  It did not accept that there was a well-founded fear of persecution of the children on that basis.

Legal proceedings

1. The Tribunal noted that the second applicant had raised for the first time on the third day of its hearing the claim that the Egyptian Ministry of Health had commenced legal action against the first applicant and that he would not be able to get a job in the ministry if he returned to Egypt.  The Tribunal found that if this claim were true, the first applicant would have mentioned it at some stage in the process.  It found that if the first applicant had accepted money from the ministry without being entitled to it then the ministry would be entitled to its return.  However, on the basis of adverse credibility findings, the Tribunal did not accept that the first applicant had been sued or dismissed from his job.

Political opinion

1. The Tribunal found that the first and second applicants had provided inconsistent, confused and changing evidence about the first applicant’s expression of his political opinion on his Facebook page.  Whilst the Tribunal accepted that the first applicant had created Facebook pages and posted comments against the Mubarak government, the SCAF and the post-revolution government, it did not accept that these activities had had any consequences for him or that he had received any threats from anyone as a result of them.  The Tribunal accepted country information which indicated that the government of Egypt had pursued journalists and human rights activists who were critical of it but found that there was no credible evidence to suggest that there was a real chance that the first applicant would come to the attention of the authorities given the millions of Facebook entries that existed about Egypt and the military authorities.  The Tribunal did not accept that the first applicant’s internet activities were of such importance that they would attract any adverse attention from the Egyptian authorities or that he had a profile that would cause him any adverse attention if he were to express his political opinions on return to Egypt.

Kidnap attempts

1. The Tribunal found that first and second applicants gave inconsistent evidence about the kidnap attempts made on the second applicant.  The Tribunal accepted that there might be discriminatory and patriarchal attitudes towards women in Egypt but found that the second applicant’s evidence did not suggest that those attitudes did not exist when she lived there previously.  The Tribunal also found that there was no evidence that such discrimination systematically resulted in serious harm of women who wore more liberal or wore Western attire or that the Muslim Brotherhood, in coalition with the Salafists, would, in the reasonably foreseeable future, severely restrict the rights of women.  The Tribunal therefore did not accept that there was a real chance that the second applicant would suffer serious harm because she was a woman who wore tight or Western clothes or that the children would suffer harm as a result of those societal attitudes and the government.  As the Tribunal had rejected the first applicant’s claim to have a reputation for having liberal or anti-Islamic views it also rejected the idea that that would result in his wife and children being particularly targeted for harassment as women in Egypt.

Money and first applicant’s uncle

1. The Tribunal noted that the September 2011 psychologist’s report submitted by the applicants stated that the first applicant feared returning to Egypt because his uncle would take “all his money”.  However, the first applicant told the Tribunal that two months before he had seen the psychologist he had already spent all his money.  The Tribunal did not accept the first and second applicants’ explanations for this inconsistency.

Religion

1. For the following reasons the Tribunal did not consider that the applicants had a subjective fear of returning to Egypt on religious grounds, that they were atheists, apostates, blasphemers, Christians or anti-Muslims or that they would proselytise or self-advertise as anti-Muslims or Christians in such a manner that they would draw adverse attention from the authorities or the community and that, instead, they had fabricated and embellished those claims:

   a)the Tribunal did not accept that the applicants had failed to say that they were Christian in their protection visa applications because their identification cards identified them as Muslim.  The Tribunal considered that the applicants’ failure to include religion in their reasons for fearing a return to Egypt was because, when they lodged their protection visa applications, it was not a genuine reason for fearing return to Egypt;

   b)at his departmental interview the first applicant raised for the first time his claim that religion was a reason for the family’s fear of returning to Egypt.  The Tribunal found that the first applicant’s failure to mention religion at all in the application form undermined his claim that it was a reason for the family’s fear of returning to Egypt; and

   c)the applicants raised additional claims at the Tribunal hearing after their religion-based claims had been rejected by the delegate.  The Tribunal noted that on the second day of its hearing the first applicant claimed for the first time that a fatwa had been issued against him in 2003 or 2004 and that before going to Malaysia he had been beaten on numerous occasions for expressing his religious opinions in coffee shops.  The Tribunal was concerned that these claims had been fabricated and noted that the first applicant had not mentioned them at its first hearing day although he had claimed he was giving evidence in chronological order and had reached September 2009 by the end of that hearing day.  The Tribunal found that if there had been a fatwa against the first applicant he would have raised the issue earlier and concluded that it was highly unlikely that he would have returned to Egypt in 2009 and then planned to return in 2011 if there was fatwa against him or he had been harassed or harmed by a religious man as he claimed.  The Tribunal also noted that the first and second applicants claimed for the first time at its second hearing date that the second applicant’s uncle had attempted to murder or harm their eldest daughter because of what she had been wearing.  The Tribunal considered that if a serious attempt had been made on the eldest daughter’s life, the first and second applicants would have mentioned it in their application forms or at the departmental interview.

2. The Tribunal also noted that the first and second applicants had given the following inconsistent evidence in relation to several matters concerning religion:

   a)the second applicant gave inconsistent evidence about when her uncle discovered that the first applicant was not Muslim and although she claimed that she had fled to Malaysia after her uncle had found that out, the first applicant claimed that his family had gone to Malaysia because he had had problems at work;

   b)although the first applicant provided letters from various churches in Australia saying that he had a genuine interest in Christianity and religion, when asked about the churches he had been attending, he said that he had no idea and did not have enough background about religion. The Tribunal accepted that the ministers who had provided their opinions that the first applicant had a genuine interest in Christianity held those opinions but it did not consider that the letters overcame its considerable concerns about the first applicant’s views on and commitment to religion. The Tribunal was not satisfied that the first applicant had attended church in Australia otherwise than for the purpose of strengthening his claims and it disregarded that conduct pursuant to s.91R(3) of the Act;

   c)although the second applicant claimed at the Tribunal hearing to have been baptised, in post-interview submissions she stated that she had misunderstood and was not baptised.  The Tribunal considered that a Christian would know whether or not he or she had been baptised;

   d)the second applicant only raised her claim to have been committed to Christianity in Malaysia and to have attended church in Australia on the fourth day of the hearing.  The Tribunal did not accept her explanations for failing to make those claims earlier; and

   e)the second applicant’s changing evidence about when she decided to become a committed Christian undermined that claim.  The Tribunal did not accept that the second applicant’s church attendance in Australia had been undertaken for any reason other than to strengthen her claim to be a genuine and committed Christian and it therefore disregarded that conduct.

3. In light of the first applicant’s philosophical posts on his personal Facebook page, the Tribunal was prepared to accept that the applicants had a somewhat open or liberal attitude towards religion and that they had friends of different faiths in Malaysia and Australia.  However, given the deficiencies in their evidence, the Tribunal did not accept their claims that they had been targeted in the past for their open attitude, that they had espoused anti-Islam views in the past or that they held anti-Islam views.  The Tribunal also did not accept their claims that they would suffer discrimination, harassment or harm for having somewhat liberal attitudes.

4. The Tribunal noted that there was no information to suggest that Egypt had become a fundamentalist theocracy or that people who held somewhat liberal attitudes towards religion, who had friends of different faiths or who were not fundamentalist Muslims would be persecuted, or that children of such families would be ostracised or suffer harm or discrimination.  The Tribunal did not accept that there was a real chance that the first and second applicants would be targeted by the Muslim Brotherhood, the Salafists, the government, Islamic groups or the community for having an open attitude or for having allowed their first daughter to attend a school where the Bible was studied.  The Tribunal noted that the first and second applicants had not suggested that they would wish their first daughter to attend a Christian school in Egypt and that being unable to do that would amount to harm.  The Tribunal also noted that the applicants had provided a printout dated 5 August 2012 providing the address of a Christian school in Sydney but had made no submissions on the document.  The Tribunal found that even if it were implied that the first and second applicants’ daughters had been sent to that school, it was not satisfied that the first and second applicants would have organised them to attend that school other than for the purpose of their refugee claims and disregarded that conduct and the children’s attendance at the school.  The Tribunal found untruthful the first applicant’s claim that his and the second applicant’s family would kill their eldest daughter because she might tell stories from the Bible and did not accept that her study of the Bible in Malaysia would lead to any adverse familial consequences for any of the applicants.  The Tribunal did not accept, even if the eldest daughter referred to the Bible in Egypt, that this would lead to a real chance of the applicants suffering harm.

Other claims

Suicide

1. The Tribunal accepted that the first applicant was suffering from adjustment disorder with anxiety and depression and that he was stressed about his visa application and the thought of moving his wife and children back to Egypt. The Tribunal found that Mr Girgis’s recommendation that the first applicant needed to live in a safe environment in order to prevent the deterioration of his mental state was only based on what the first applicant had told him about what would happen if he returned to Egypt, which the Tribunal did not accept was true. The Tribunal did not accept that the medical or psychological evidence supported a finding that there was a risk that the first applicant would commit suicide if he returned to Egypt. As it had found that the stress factors which the first applicant claimed would lead to his suicide did not exist, the Tribunal did not accept that he would commit suicide if he returned to Egypt.

Ability to subsist

1. The Tribunal found that the first applicant was a qualified and experienced dentist and did not accept that he would be unable to obtain work to support his family in Egypt.  As it had found that the applicants did not hold any religious, political or ideological views which had resulted in problems with their families, the Tribunal found that they could receive assistance from their families, or if they did not wish to expose their children to the second applicant’s family, from the first applicant’s mother until the first applicant could obtain a job and they settled into their life in Egypt.  Although accepting that it would be difficult for the applicants to move to Egypt, the Tribunal noted that it was their country of nationality and did not accept that they would suffer further psychological harm in Egypt in the reasonably foreseeable future.   The Tribunal also found that the children were very young, that they would be with their parents and that there was no indication that they would not adjust to living in Egypt.

2. The Tribunal accepted that the second applicant and her daughters might be harassed in the future from time to time. However, the Tribunal found that whilst the harassment would be unpleasant, upsetting and inappropriate, it would not amount to serious harm in the sense required by s.91R(2) of the Act. The Tribunal found that country information did not suggest that serious assaults on women were common and thus it was not satisfied that there was a real chance that the second applicant and her daughters would be subject to serious harm in the form of sexual harassment. The Tribunal also found that country information did not indicate that women were unable to work or participate in society or that children could not go to school. It did not accept that feeling different for not being circumcised amounted to serious harm and considered speculative the claim that there would be an expectation from the girls’ future husbands’ families that they be circumcised.

3. After considering independent country information on the situation in Egypt, the Tribunal found that there was nothing in the applicants’ circumstances to suggest that they would be subjected to persecution for a Convention reason as a result of the general situation in Egypt.  The Tribunal did not accept that they would be selectively or discriminatorily affected by the general situation in Egypt.

Failed asylum seekers

1. The Tribunal noted that Ms Dower’s letter did not indicate what expertise entitled her to express the opinion that the applicants’ seeking asylum in Australia would be considered a betrayal in their culture.  The Tribunal also noted that although the applicants’ migration agent had raised the issue in post-hearing submissions, the applicants had not raised the claim themselves throughout its four day hearing.  The Tribunal found that the country information submitted by the applicants’ migration agent suggested that there were risks to failed asylum seekers who already had involvement with or had come to the attention of the authorities.  The Tribunal did not accept that that was applicable to the applicants.

Complementary protection

1. In relation to the claims which it had rejected, the Tribunal found that there was no real risk that the applicants would suffer harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act. Therefore the Tribunal did not accept that there were substantial grounds for believing, as a necessary and foreseeable consequence of the applicants being removed from Australia to Egypt, that there was a real risk that they would suffer significant harm in relation to those claims.

2. The Tribunal also considered the applicants’ claims of possible harm which it had not rejected and concluded that none of them demonstrated a risk of significant harm either.

Proceedings in this Court

1. In their second amended application the applicants alleged:

   1.The Applicant appeals against or in the alternative seeks a declaration as specified above [a declaration that the Tribunal’s decision was not a proper decision] regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on November 2012 on the grounds that it was not a decision under the Act.

   Particulars

   i.       Section 5E

   ii.     Transcript and evidence

   2.The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias and thus was not an effective decision that is protected by Section 474.

   Particulars

   i.The Tribunal, “come what may” refused to accept that the young female Applicants were at risk of Genital Mutilation without their consent if they are returned to Egypt.  See decision record generally, and especially paragraph 367.

   ii.The general finding of the Tribunal with respect to a purported lack of risk of Genital Mutilation indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration V Jia (2001) 205 CLR 507 at [69], [71]-[72], [127].

   iii.The Tribunal’s findings regarding the Tribunal’s assertion as to the unlikelihood of Genital Mutilation are at variance with all country information and all knowledgeable research.  The Tribunal disregarded the information put before it.

   3.The Tribunal asked itself the wrong question and thus did not arrive at an effective decision that is protected by Section 474.

   Particulars

   i.See paragraph 367 of the Decision.  The Tribunal had regard, not to the objective test of whether or not there was a “well founded fear” of the children being mutilated, but to a criterion the Tribunal has drafted for itself, being “whether or not the adult Applicants consider this to be a prospect”.

   ii.     Evidence and submissions.

   4.The Tribunal made inconsistent findings as to the state of mind of the First Applicant and relied on those inconsistent findings.

   Particulars

   i.The Tribunal found that the First Applicant had behaved towards it in a manner that included tearing off his shirt so that the Tribunal felt a need to adjourn proceedings and then vacate the hearing room.

   ii.The Tribunal then found that the First Applicant was not affected by any psychological disability but had fabricated his evidence.  The tribunal did not inform either the Applicant or his representative verbally and/or in writing of matters pertaining to them that would or could lead to an adverse finding.

Ground 1

1. The first ground of the application is not a ground of review because it does not seek to identify any jurisdictional error on the part of the Tribunal.

Ground 2

1. The first two pages of the applicants’ written submissions asserted that the Tribunal had had a closed mind, had conducted an interrogation seeking to find inconsistencies, not a hearing, had manifested an “enthusiasm not to believe” and had formed an “obvious dislike” of the first applicant.  Nevertheless, the applicants did not seek to amend their application for a third time to allege actual bias.  They continued, relevantly, to allege apprehended bias, as the third page of their written submissions and their address at the hearing of this application confirmed.

2. As a result, the allegations in the first two pages of the written submissions, which were not part of the applicants’ submissions concerning apprehended bias, need not be addressed  However, in the event that the applicants intended them to be part of their apprehended bias arguments I will consider them.

Unreasonable finding on the risk of female circumcision

1. A principal theme in the applicants’ submissions was that the evidence was such that the Tribunal could not, conscientiously, have found that the first and second applicants’ daughters would not be circumcised if they returned to Egypt.  In this connection, their submissions stated:

   This was a straightforward claim.  The effective certainty of this abuse of young females or brides in Egypt is documented by the United Nations, the American State Department, the Red Cross, the Australian Department of Foreign Affairs and Trade, and the Refugee Review Tribunal Country Information.  It is a fact.

   This extensive documentation records this unarguable fact that it is accepted by all competent tribunals and international forums.  Notwithstanding this, the Refugee Review Tribunal does not accept it to be so.

   …  It is a conclusion that is possible only if the Member was so wedded to a particular finding as to be incapable of considering the facts and the law with an open mind.

2. This is really no more than an impermissible challenge to the Tribunal’s fact finding.  For the reasons given below at [76] and [77], the relevant finding, that the first and second applicants’ behaviour indicated that their daughters were actually not at risk of the physical harm they alleged, was open to the Tribunal on the evidence.  I am not persuaded that the finding in question can be explained only by the Tribunal having a closed mind or that the Tribunal in fact had a closed mind on the issue.

Hearing was an interrogation

1. The assertion that the hearing was in truth a tendentious interrogation was based on the fact that it went over four days and took more than thirteen hours. The length of the hearing is explained by the fact that the first applicant did not canvass all his claims in one hearing day, as the above summary of that hearing records, and then the second applicant gave her evidence. The hearing continued on a fourth day because the Act’s complementary protection provisions commenced in the period following the third hearing day, when the second applicant’s evidence concluded, and the applicants had to be given an opportunity to address those new issues.

2. Further, the transcript of the Tribunal hearing does not support the submission that the hearing “consisted of endless questioning … until inconsistencies were found”.

Tribunal relied on delegate’s findings

1. The applicants submitted that the first applicant had been distressed before the delegate such that no reliance could be placed on the delegate’s findings and that therefore the Tribunal erred by relying on those findings.  Contrary to this assertion, although the Tribunal did refer to the applicants’ claims before the delegate and to the delegate’s findings, it conducted a de novo consideration of those claims, which in any event were not identical to what had been advanced before the delegate, and did not “rely” on the delegate’s findings for any of its own findings.

Tribunal disliked the first applicant

1. The submission was:

   The Member formed an obvious dislike of the principal Applicant that went beyond the acceptable frustration of a judicial officer with a difficult advocate.  At one stage the member “called security” because the Applicant was hitting himself and tearing his garments in his distress. Upon hearing the record and then considering the “findings” it is possible to establish at least partly, why it was that the Member kept the hearing going for so long.  She did not “have enough” to dismiss the Application, so kept going until “she had”.

2. In relation to the first part of that submission, the transcript records that when the Tribunal put some matters to the applicants in the discharge of its procedural fairness obligations, the following occurred:

   Tribunal:Excuse me, she can’t possibly interpret that, she can’t interpret that.  Excuse me will you stop please, she can’t possibly interpret that.  Sorry stop, we will have to stop the hearing if you don’t stop.  She can’t possibly interpret that.

   First applicant:     I have to interrupt you, I cannot continue like that.  I want a lawyer, I want a solicitor I am not going to continue, I’m not saying anything else, I want a solicitor.  I am a liar, I am a … [everyone is speaking at once].

   Tribunal:Mr [first applicant], we have already sent you recommendations, we have sent you a list of lawyers …

   First applicant:     I want to be represented now, I want Australia out of my life, get me a representative.

   [[First applicant] is shouting in Arabic].

   Tribunal:Sorry, sorry, I am going to have to stop the hearing if you are pulling the buttons off your shirt this is not a good thing for the interpreter, the children or your wife.  Call the Hearing Officer to come in here, we have an applicant who is rather distressed … okay, just for the moment.  Sorry, sorry, I am not going to have a hearing like this where you are speaking in a threatening manner.

   Tribunal:No, no, stay away from the interpreter.  Stay away.  I am not going to have the hearing proceed whilst you are like this.  Stop, stop.  I am going to stop the hearing.

   [[First applicant] is still shouting in Arabic]

   Tribunal:Stop, stop. [Second applicant], is there anything you would like to say?  Okay, alright, he has left the room, so I think we are okay at the moment to proceed, are we?

   Second applicant: Can I please explain something?

   Tribunal:Yes you can, okay just hang on a second the Hearing Officer has come into the room.  The applicant has gone out of the room so I think the situation has somewhat calmed down so you can continue, thank you.  I am not sure about … are you concerned about him and do you want to go after him?

   Second applicant: I think he is sitting outside with the children and I have to tell you so many things in response to what you say.

1. I do not conclude from that exchange, or from any other recorded in the transcript, that the Tribunal disliked the first applicant.  Further, the applicants did not point to any other part of the transcript which would have supported a conclusion that the Tribunal disliked the first applicant at all or, if it did, that any such dislike affected its decision-making.

2. In relation to the second part of the submission, which seems to have nothing to do with the first, the transcript does not support a finding that the Tribunal prolonged the hearing in order to gather evidence to justify a result adverse to the applicants.  Rather, the transcript records the considerable burden placed on the Tribunal by unresponsive answers to questions, by claims which evolved and by accounts which were confusingly inconsistent.

Enthusiasm to not believe

1. Relevantly, the submission was:

   The hearing, when one considers the 13 hours, became perceived by the Member, at least in part, as not a hearing, but a personal attack on her.  The Member took it personally.  The principal Applicant was “not going to get away with it.”

2. No basis for this submission was advanced and so it should not have been made. 

Apprehended bias

Applicants’ evidence should be accepted

1. In their written submissions the applicants argued that the first applicant’s evidence had to be “taken on its face as true” and that “[i]n the absence of cross examination, he must be taken as a reasonable person whose credibility must be assumed”.  They argued that the Tribunal had “adopted the opposite stance – that the evidence must be presumed to be false unless some sort of corroboration of each and every claim was provided”.

2. The significance of the submission’s reference to cross-examination is elusive given that the Tribunal’s procedure is not adversarial.  Secondly, there is no rule that a person giving evidence to an administrative body must be taken to be accurate and truthful.  Thirdly, the transcript of the Tribunal’s hearing does not support the submission that everything the applicants said had to be corroborated before the Tribunal would accept it as correct.

Decision reveals possible bias

1. The applicants submitted:

   A fair minded lay observer in this case would be stunned by the level of pre judgement [sic] and hostility attested to.  It is necessary to absorb the “findings” in this respect.  They read like a submission rather than a consideration.  The “aha” principle is often invoked.  This is highly reflective of the demeanour attested to by the two witnesses.  They saw the behaviour and it was manifested in the decision.

2. An allegation of apprehended bias is not made out by reliance on the decision-maker’s ultimate finding.  As was said in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427:

   … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.  An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue.  To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension).  Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.  And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment. (reference omitted) (at 446-447 [67] per Gummow ACJ, Hayne, Crennan and Bell JJ)

3. Further, “the two witnesses” referred to in the written submissions, presumably the first and second applicants, did not give evidence at the hearing and although affidavits from each of the first and second applicants were read, passages concerning the Tribunal hearing were not part of the evidence admitted. 

Tribunal’s behaviour bespoke bias

1. In support of their allegation that the Tribunal had conducted itself in a manner which gave rise to a reasonable apprehension of bias, the applicants also relied, as a submission, on a document whose author had listened to the sound recordings of the Tribunal hearing and who characterised the Tribunal’s tone at various points as, for instance, “aggressive”, “disbelieving”, “impatient” and “accusative”.  At the hearing of this application, it was submitted that the risk of prejudgment by the Tribunal could be inferred from the “tone” of its exchanges with the first and second applicants at its hearing. 

2. In addresses the applicants again referred to the incident during the Tribunal’s hearing when the first applicant was tearing at his shirt, allegedly in an expression of anguish, as a result of which the Tribunal allegedly adjourned the hearing.  The applicants characterised this as a “flare-up” in the relationship between the Tribunal member and the first applicant.

3. I am not persuaded that the hypothetical lay observer would reasonably apprehend the possibility of bias on the part of the Tribunal.  First, as the sound recording of the Tribunals’ hearing was not in evidence, I cannot reach any conclusion on the Tribunal’s tone.  Further in that connection, as the document which sought to apply descriptions to the Tribunal’s tone was not in evidence either, I placed no reliance on it, preferring my own reading of the transcript.  That reading did not support the applicants’ characterisation of the Tribunal’s attitude.

4. Secondly, although the first applicant plainly lost his composure at one point, the transcript does not support a finding that the Tribunal did too and it also contradicts the submission that the hearing adjourned because of the first applicant’s behaviour. 

Tribunal had a fixed view

1. The applicants submitted that they were:

   … going to lose, and the Member was prepared to spend the time usually taken up by four typical hearings to ensure that happened.

   It must be an apprehension, as it was in this case, and which was borne out by the Decision, that, “… the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party.”  That is the case here, according to the evidence.

2. That is an allegation of actual bias, not apprehended bias and is unparticularised other than by reference to the length of the hearing and the fact that the applicants were unsuccessful before the Tribunal.  Allegations of bias must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69]. The allegation has not been clearly proved because the transcript does not support a conclusion that the Tribunal sought to achieve a particular outcome and the Tribunal’s reasons reveal a careful and conscientious analysis of the evidence together with conclusions which were well open to it on the evidence.

Ground 3

1. The substance of the third allegation was that the Tribunal failed to determine whether the applicants’ fear of circumcision of the third, fourth and fifth applicants was objectively well-founded and instead based its finding on that question on whether the first and second applicants subjectively held such a fear. The allegation mistakes what the Tribunal said in para.367 of its reasons, summarised above at [34].

2. The Tribunal found that the preparedness of the first and second applicants to return to Egypt in 2009, 2010 and 2011 gave the lie to their claimed fear that their daughters would be circumcised if they returned there.  The finding that the first and second applicants were not afraid that their daughters would be circumcised in Egypt, contrary to their allegations, would have been sufficient to resolve that particular aspect of their claims against them.  However, it, together with the first and second applicants’ lack of credibility, also led the Tribunal to the related conclusion that the first and second applicants’ lack of subjective fear indicated that the risk that the claimed harm would befall their daughters was not a real one.  It was open to the Tribunal to find that the Egyptian community and authorities did not have the power to force the children to be circumcised against their parents’ wishes and, so, that the claimed fear that they would be circumcised was not objectively well-founded.

3. In addresses the applicants advised the Court that the third ground of the application was also an example of conduct giving rise to an apprehension of bias on the part of the Tribunal.  However, as noted earlier, an allegation of apprehended bias is not made out by reliance on the decision-maker’s ultimate finding.

Ground 4

1. The allegation made in the fourth ground of the application was that the Tribunal made inconsistent findings.  The particulars refer to the claimed fact that:

   The Tribunal found that the First Applicant had behaved towards it in a manner that included tearing off his shirt so that the Tribunal felt a need to adjourn proceedings and then vacate the hearing room

   and to a finding in its decision record that the first applicant had not been affected by any psychological disability but had fabricated his evidence.  The burden of this allegation was that the Tribunal should have concluded from the behaviour recorded in the transcript passage quoted above at [60] that the applicant had a psychological disability.  Presumably it would be suggested that such a finding would have thrown doubt on whether it had been open to the Tribunal to find that the first applicant had not been a witness of credit.

2. This allegation invites the Court to find that the Tribunal should have made a particular finding of fact.  However, the Court cannot do that in judicial review proceedings.

3. The conduct in question was also pressed as an example of behaviour which would support a finding of apprehended bias.  However, the applicants did not identify how the matters referred to above at [79] amounted to inconsistent findings and, in particular, how the first applicant’s behaviour on the third hearing day was a manifestation of psychological disability or where the Tribunal made a finding that it was.  Consequently, this aspect of the allegation must fail on the facts.  It must also fail because, again, the applicants relied on the Tribunal’s reasons for decision to prove apprehended bias which, for the reasons given earlier at [68], is an erroneous approach.

4. The next aspect of the allegation, which is to be found in the second sentence of the second particular, was that the Tribunal denied the applicants natural justice.  However, that allegation was not particularised and so lacks meaningful substance.  It too was pressed as an example of conduct which would support a finding of apprehended bias.  However, in the absence of particularisation of the omissions alleged, there is no basis to reach such a conclusion.  This aspect of the fourth ground of the application is also not made out.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 11 December 2014