SZSMD v Minister for Immigration
[2014] FCCA 2304
•13 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2304 |
| Catchwords: MIGRATION – Application seeking review of Refugee Review Tribunal decision – refusal to grant applicant a Protection (Class XA) visa – allegation of apprehended bias on the part of Tribunal Member – relevant principles – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5E, 91X, 420, 424A, 474 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Embertec Pty Ltd v Energy Efficient Technologies Pty Ltd (No.2) [2013] FCA 347 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 Martinez v Minister for Immigration and Citizenship (2009) 110 ALD 540 Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li & Anor (2012) 202 FCR 387 Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427 Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 Minister for Immigration and Citizenship & Anor v SZQHH (2012) 200 FCR 223 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 MZXDI v Minister for Immigration and Citizenship [2007] FCA 1782 MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 NABE v Minster for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425 RL & D Investments Pty Ltd v Bisby & Anor [2002] NSWSC 1082 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 SZDWG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1339 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZOBS v Minister for Immigration and Citizenship & Anor (2010) 117 ALD 135 SZOYH v Minister for Immigration and Citizenship & Anor (2012) 128 ALD 554 SZQRW v Minister for Immigration & Anor [2012] FMCA 191 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZSNU v Minister for Immigration & Anor [2013] FCCA 1219 SZSQS & Ors v Minister for Immigration & Anor [2013] FCCA 1180 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 |
| Applicant: | SZSMD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 19 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 17 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr C McArdle of McArdle Legal |
| Solicitor for the First Respondent: | Mr M Alderton of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 8 January 2013, amended on 30 May 2013 and further amended on 12 June 2013 be dismissed.
Costs be reserved.
The parties have leave to file submissions in respect to the reserved costs.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSMD.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 19 of 2013
| SZSMD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks by way of application filed in this Court on 8 January 2013 (subsequently amended and further amended) judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 11 December 2012. The Tribunal affirmed a decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (the “Minister”) (at the time of the lodging of the application in this Court the Minister for Immigration and Citizenship), and dated 31 May 2012 to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant relied upon Exhibit “B” which were two CDs containing the recordings of the applicant’s Tribunal hearing. Exhibit “C” is a CD of the specific extracts referred to on the two CDs.
The applicant was granted leave to file and serve an amended application and any evidence she wished to rely upon on or before 27 May 2013. The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the date of the hearing. The applicant filed a further amended application (“Further Amended Application”) on 12 June 2013 along with an outline of written submissions. I note that the applicant’s representatives sought to rely on the Further Amended Application.
The affidavit evidence relied upon by the applicant is as follows:
a)Affidavit of Ana Zhao, affirmed 23 May 2013, annexing a Mandarin to English translation transcript of the voice recording of the Tribunal hearing, held on 12 October 2012;
b)Disc 1 and 2– audio recording of the entirety of Tribunal hearing – Exhibit “B”; and
c)Disc 3 – audio recording of extracts of Tribunal hearing - Exhibit “C”.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 27 August 2011 on a Student visa (CB 27; CB 33-38). On 14 February 2012, she applied to the Department of Immigration and Border Protection (formerly the Department of Immigration and Citizenship) for a Protection visa (CB 1-24). She appointed a representative to assist her in connection to that visa application (CB 30-32).
The applicant claimed in her application that her family had suffered “serious financial hardship” when she was young (CB 16). She also claimed that her boyfriend (Mr Cao) had owned a property at “… Renao road, Shenhe District, Shenyang City”, which had been compulsorily acquired by the Chinese authorities. Mr Cao (along with his mother) subsequently came to live with the applicant. Mr Cao was later arrested and detained by the authorities after he had attempted to contact other people whose properties had been acquired and to submit a petition for compensation. On 31 August 2010, the applicant was informed by the authorities that Mr Cao had died of a heart attack. After the applicant viewed his body she formed the view that he had been tortured and she subsequently asked the local authorities to investigate his death (CB 17-18).
The applicant claimed that in December 2010 she approached the Sheyang Public Security Bureau (PSB) and the Anticorruption Bureau to investigate Mr Cao’s death, as well as violence at the centre where he had been detained and corruption within the government. On 21 December 2010, the applicant was arrested and detained by the authorities (CB 18). She was mistreated, tortured and sexually assaulted by prison officers, and other inmates were forced to treat her inhumanely. On 27 January 2011, she was released from detention after becoming seriously ill and warned not to make any further trouble. The applicant claimed that PSB officers continued to harass and threaten her and also came to her parent’s home. Before departing China, the applicant lodged a petition with the Central government in Beijing regarding the past harm she and Mr Cao suffered. Since her arrival in Australia, the police have continued to make trouble for her family (CB 19, CB 152-154 at [20]-[21])
Delegate’s Decision
On 3 May 2012 the delegate invited the applicant to attend an interview scheduled for 30 May 2012 (CB 49-53). The applicant attended this interview and gave evidence in support of her claims (CB 63-69; CB 155 at [22]-[26]).
On 31 May 2012, the delegate made a decision refusing to grant the applicant a Protection visa (CB 59-75). On the basis of significant concerns that it identified with the applicant’s credibility, the delegate did not accept as plausible that the applicant’s boyfriend lived with the applicant or that her boyfriend had been detained in China (CB 70-72). Accordingly, the delegate did not accept that the applicant had a well-founded fear of persecution or that there was a real risk that she would suffer significant harm if she was removed to China (CB 73-74)
Proceedings before the Tribunal
On 22 June 2012, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision (CB 76-82). She appointed the same representative to assist her in connection with the review (CB 79). By letter dated 18 September 2012, the Tribunal invited the applicant to attend a hearing before it scheduled on 4 October 2012 (CB 85-87). This hearing was subsequently rescheduled to 12 October 2012 at the request of the applicant’s representatives (CB 88-92).
The applicant accepted the invitation to the rescheduled hearing (CB 93-95). On 11 October 2012, the applicant’s representative provided the Tribunal with copies of photographs of the applicant with her former boyfriend (CB 98-99), a translated letter from the applicant’s sister (CB 100), a document titles “Notification on Detention” (CB 101) and documents relation to the applicant receiving treatment from a clinical psychologist in Australia since June 2012 (CB 102-109).
The applicant appeared before the Tribunal on 12 October 2012 to give evidence and present arguments in support of her claims (CB 110-112; CB 156-162 at [27]-[50]). By letter dated 7 November 2012, the Tribunal wrote to the applicant pursuant to s.424A(1) of the Migration Act and invited her to comment on particulars of adverse information relating to searches conducted by the Tribunal about land acquisition in China (CB 119-121; CB 162 at [51]).
On 20 November 2012, the applicant’s representative provided the Tribunal with a statutory declaration from the applicant and extracts of independent country information relating to land acquisition in China (CB 122-145).
Tribunal’s Decision
In a decision dated 11 December 2012, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa (CB 149-172).
The applicant was unsuccessful before the Tribunal because of the adverse view the Tribunal took in respect of her credibility and the credibility of her claims (CB 166 at [64]). For example, the Tribunal found that the applicant’s claims were unsupported by the accepted independent country information before it about land acquisitions in China. The Tribunal was unable to locate any reports of land being compulsorily acquired in Renao, Shenhe District or Sheyang City. Nor was it able to locate any reliable information about land acquisition in Shenhe District more broadly. Accordingly, the Tribunal did not accept that the property belonging to her boyfriend had been compulsorily acquired (CB 167-168 at [65]).
The Tribunal also did not accept as credible the applicant’s evidence that she did not marry Mr Cao because her parents wanted a “bride price” of 300,000RMB. It found on the basis of the accepted independent country information that this amount was very high and was also inconsistent with her claims that her parents were in financial difficulty (CB 167 at [66]).
On the basis of these findings, the Tribunal concluded that the applicant had fabricated her claims about the compulsory acquisition of Mr Cao’s property (CB 167 at [67]). It therefore also rejected the claimed conduct that allegedly occurred as a result of the alleged compulsory acquisition and did not accept that they ever came to the adverse attention of the Chinese authorities for the reasons claimed (CB 168 at [68]-[69]).
These findings alone were sufficient to address the applicant’s claims for protection given that the remainder of her claims to fear harm arose from this incident: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]. The Tribunal nonetheless also expressed doubts about the truthfulness of her claims to have been sexually assaulted in prison. For example, it found this claim to be “unrealistic”, given that it would be unlikely that the applicant would have been targeted by the same three guards repeatedly, she made no mention of any other detainees being targeted and had claimed that the guards had been drunk at work. The Tribunal also placed weight on her failure to mention at the hearing the claim made in her earlier submission that other prisoners were forced to treat her inhumanely. The Tribunal also found it “unlikely” that the applicant would be treated with an IV drip and ointment on her release and found that it was “incongruous” that she felt uncomfortable discussing the incident with her migration agent in the room, but was willing to provide medical records to the Beijing authorities (CB 169 at [71]). Finally, the Tribunal placed weight on the accepted independent country information before it that indicated the Chinese authorities did not use sexual assault in a systematic or discriminatory way against non-Falun Dafa followers (CB 169 at [72]).
In reaching these findings, the Tribunal expressly had regard to the letter form a clinical psychologist (Dr Ming Sze) that indicated that the applicant was feeling anxious about her application for review and had told Dr Sze about the traumatic experiences that she suffered in China. It found, however, that the information contained in the letter was “self-reported” and Dr Sze had indicated in the letter the she would not be in a position to provide any further information to the Tribunal about the applicant (CB 170 at [73]).
The Tribunal also had regard to the “Notification of Detention” document provided by the applicant but it gave “very little weight” on the basis that the applicant had not mentioned this document when lodging her Protection visa application and the accepted independent country information before it indicated that documents could be obtained in China by fraudulent means (CB 170 at [74]). The Tribunal similarly gave “very little weight” to the photographs of the applicant and Mr Cao and the correspondence received from her sister.
In addition, the Tribunal found that the credibility of the applicant’s claims was further undermined by the delay between the applicant obtaining a genuine passport in April 2011 and a Student visa on 15 August 2011, but not departing China until 22 August 2011. In reaching this finding, the Tribunal expressly rejected the applicant’s explanation for the delay namely, that she had an appointment to meet the authorities in Beijing (CB 170 at [75]).
Finally, the Tribunal found that the applicant had provided “evasive” evidence at the hearing about how she obtained a passport, whether she attended a health check in China and whether she knew how to use a computer, check email or use Facebook. The Tribunal concluded that her evidence in this regard reflected “poorly” on her overall credibility (CB 170 at [76]). The Tribunal was not satisfied the applicant has a well-founded fear of persecution (CB 170 at [77]). Having rejected the applicant’s claims of past harm in China, the Tribunal found there was no evidence before it to conclude that the applicant would be of adverse interest to the Chinese authorities if she returned to China. It was also found that there were no substantial grounds for believing that there was a real risk that she would suffer significant harm if she was removed from Australia to China (CB 171 at [78]).
The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations and it affirmed the decision under review (CB 171 at [80]-[83]).
Current Proceedings
The Further Amended Application filed 12 June 2013, seeks the following orders:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. In the alternative, or in addition, a declaration that the recommendation of the Independent Protection Assessment Reviewer/ decision of the Tribunal was not made in accordance with law, by reason of the ground/s of this application.
The grounds of the Further Amended Application are as follows:
1. The Applicant appeals against or in the alternative seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 11 December 2012.
Particulars
i. Section 5E
ii. Transcript to be particularised in submissions 14 days in advance of hearing.
2. The Tribunal’s conduct of proceedings and conclusion was such that a reasonable person would apprehend them to be encumbered by bias, and was thus not an effective decision that is protected by Section 474.
Particulars
i. The Tribunal, “come what may” refused to accept that the Applicant had been held in detention and raped by prison guards whilst they were under the influence of alcohol. See decision record generally, and especially paragraphs 60, 70, 71, 72, 73, 74.
ii. The general finding of the Tribunal indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alternation, or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration V Jia (2001) 205 CLR 507). See decision generally and especially 60, 70-74, 75 and 76. See also paragraph 62 and following, whereby the Tribunal accepted the Applicant’s “general knowledge” to determine her nationality, but not as “support” of anything else.
iii. The Tribunal’s findings regarding the Tribunal’s assertion as to the unlikelihood of forcible and wide spread demolition of housing are at variance with all country information and all knowledgeable research. The Tribunal disregarded the information put before it, other than “country information” provided by a website that the Tribunal itself acknowledges is conducted by the PRC Government. See decision generally and paragraph 61.
iv. Transcript to be particularised in submission 14 days in advance of hearing
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 the Decision generally, and evidence and submissions.
ii. The Tribunal had regard, not to the objective test of whether or not there was a “well founded fear” of persecution on the part of the Applicant, but on whether or not she could obtain independent verification of sexual assault whilst in prison, and government confirmation of land acquisitions perpetrated by that same Government.
iii. The Tribunal held to the Applicant’s disadvantage, that she had attempted to lobby government agencies before fleeing.
4. The Tribunal breached Section 420 and made a jurisdictional error by denying the applicant procedural fairness by reason of there being a reasonable apprehension of bias.
Particulars
i. See requirements as to verification and all other grounds above, and failure to give the Applicant the “benefit of the doubt”
i. See approach generally “to not believe” in the absence of verification as to sexual assault and compulsory acquisition of land, and finding as to bride pride with giving the Applicant an opportunity to rebut.
ii. Transcript to be particularised in submissions 14 days in advance of hearing.
5. The Tribunal breached Section 424A.
Particulars
i. The Tribunal made a finding as to its “disbelief” as to the bride price asserted in sworn evidence after having made its own enquiries. It failed to inform the Applicant that it had done so or that it may make findings adverse to the Applicant based on such “information”, thereby rendering it impossible for the Applicant to be heard in advance of that finding.
ii. The Tribunal made a finding to the effect that it “disbelieved” the evidence as to compulsory land acquisition after having made its own enquiries. It failed to inform the Applicant that it had done so or that it may make findings adverse to the Applicant based on such “information”, thereby rendering it impossible for the Applicant to be heard in advance of that finding.
iii. Transcript to be particularised in submissions 14 days in advance of hearing.
Applicant’s Submissions
The applicant’s representative, Mr McArdle, submits that the Tribunal Member did not give the applicant the opportunity, as required by statute, to a fair hearing. Mr McArdle argued that the Tribunal Member failed to apply the Migration Act and that the Decision Record of 11 December 2012 is not a decision, but merely a purported decision. Mr McArdle took the Court to s.5E of the Migration Act. Mr McArdle referred the Court to the Transcript and argued that there is no indication in the Transcript that contradicts the evidence of the applicant.
Error of Law
Mr McArdle argued that the Decision Record is at odds with the evidence and took the Court to s.474 of the Migration Act. He argued that the evidence shows that the Tribunal did not follow the Migration Act and that the Decision Record is not a decision but a purported decision.
The principle that a decision contrary to the evidence or in the absence of evidence is an error of law is to be found in RL & D Investments Pty Ltd v Bisby & Anor [2002] NSWSC 1082 where his Honour Kirby J stated at [12]-[14]:
Error of Law
12. In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ considered the nature of an appeal on a question of law. He distilled from the authorities a number of propositions. Relevantly, he said this (omitting references): (at 138)
“(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law."13 The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1; Haines v Leves & Anor (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; SRA v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated:
· First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding.
· Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155).
· Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White [1966] HCA 69; (1966) 116 CLR 644, at 654).
· Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5).14 There will, however, be an error of law in the circumstances described by Mason CJ (Brennan J agreeing) in Australian Broadcasting Tribunal v Bond (supra): (at p 355)
“The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law."
Mr McArdle argues that in this case the Tribunal Member showed herself to be enthusiastic from the beginning to “not believe”. For example she required verification of the crime of rape. Mr McArdle submits that the views of the Tribunal Member were reached prior to the hearing and she set out to apply them in the face of the evidence to the contrary. It is submitted that the Tribunal Member’s decision was encumbered with errors of law by disregarding evidence.
Apprehended Bias
Mr McArdle referred the Court to the evidence of the applicant and took the Court to the authority of Embertec Pty Ltd v Energy Efficient Technologies Pty Ltd (No.2) [2013] FCA 347 where Foster J stated at [4]-[11]:
THE RELEVANT PRINCIPLES
4. A judge should not sit to hear a case if, in all the circumstances, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question which he or she is required to decide (Johnson v Johnson (2000) 201 CLR 488 at 492–493 [11]–[12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Livesey v New South Wales Bar Association(1983) 151 CLR 288 at 293–294 per Mason, Murphy, Brennan, Deane and Dawson JJ; and Ebner v Official Trustee in Bankruptcy (2000)205 CLR 337 at 344–345 [6]–[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ).
5. The test for apprehension of bias involves a consideration of possibilities, not probabilities, although the possibilities must be real and not remote (Ebner at 345 [7]; Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 at 199 [71] per Greenwood J and at 211–212 [121] per Besanko J).
6. The application of the test requires two things. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner at 345 [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 445 [63] per Gummow ACJ, Hayne, Crennan and Bell JJ; Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) 199 [71] per Greenwood J and at 211–212 [121] per Besanko J).
7. The reasonable or fair-minded observer is not taken to have a knowledge of the law nor should there be attributed to her or him an awareness of the judicial process that ordinary experience suggests not to be the case (Vakauta v Kelly (1989) 167 CLR 568 at 585 per Toohey J). The reasonable hypothetical observer understands that a judge is professional but is not presumed to reject the possibility of pre-judgment. Were it otherwise, apprehension of bias would never arise in the case of the professional judge (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 333 [144] per Heydon, Kiefel and Bell JJ).
8. The lay observer is not informed by a detailed knowledge of the law nor is he or she invested with “undue knowledge and sophistication” or “highly specialised knowledge” (Johnson v Johnson at 502–503 [42] and 506 [49] per Kirby J; and Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) at 200–201 [74] per Greenwood J). Nevertheless, the fictitious bystander is not “wholly uninformed and uninstructed about the law in general or the issues to be decided” (Johnson v Johnson at 508–509 [53] per Kirby J). The hypothetical observer is assumed to know the issues to be decided and the circumstances in which they came to be decided.
9. Exceptions to the apprehension of bias rule include necessity, waiver and special circumstances (British American Tobacco Australia Services Ltd v Laurie at 333 [146]).
10. The pre-judgment principle is one basis upon which a reasonable apprehension of bias may be found to exist. If a fair-minded person reasonably apprehends or suspects that the Tribunal has pre-judged the case, that observer cannot have confidence in the decision (Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263). This notion is based upon the fundamental principle that justice must be seen to be done as well as be done.
11. The relevant test is whether a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of pre-judgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view (Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25] per Kenny, Tracey and Middleton JJ). Reasonable apprehension of bias by reason of pre-judgment must be firmly established (Re JRL; Ex parte CJL(1986) 161 CLR 342 at 352 per Mason J). A conclusion of reasonable apprehension of bias is not to be drawn lightly (Vakauta v Kelly at 584–585).
Mr McArdle argued that a fair minded lay observer would have been stunned at the level of pre-judgment and hostility attested to. He submits that it is clear on the evidence that “a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of pre-judgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view”. Mr McArdle submits that the Tribunal Member was committed to an outcome and in doing so disregarded the facts that were put before her. Mr McArdle took the Court to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 where he argued that the evidence before the Court is that the Tribunal Member was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”Mr McArdle contends that the decision should be remitted on the grounds of apprehended bias.
Mr McArdle argued that it is accepted that if a person is going to conduct a hearing then it is quite available to them to robustly question and challenge and bring out issues by questioning: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. In this case it was identified that questioning by a decision-maker can enhance the validity of the decision. Mr McArdle also noted that at [91] in SZRUI (supra) his Honour Robertson J stated:
91. Dealing with these contentions in turn, no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10–11, in relation to a claim of actual bias:
It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account …
The entirety of the circumstances must be considered.
Minister’s Submissions
The Minister’s written submissions were filed and served before the Further Amended Application was filed on 12 June 2013. Acknowledging that, Mr Alderton, appearing for the Minister, sought to rely on his written submissions and expand on his argument through oral submissions.
Ground One
The Minister argues that the first ground is not a proper ground of review but simply reflects the applicant’s intention to seek judicial review of the Tribunal’s decision.
Ground Two
The Minister submits the second ground alleges that the Tribunal’s conduct of the proceedings and its conclusions were such that a reasonable person would apprehend them to be encumbered by bias. Whilst the particulars in support of this ground refer to [60]-[62] and [70]-[76] of the Tribunal’s decision, it is unhelpful to look at to the reasons of a decision-maker to confirm an apprehension of bias because, of necessity, at the time those reasons are given, the decision-maker has made up his or her mind: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [67]-[68]; Minister for Immigration and Citizenship v SZNPG & Anor [2010] FCAFC 51 at [18].
The Minister contends that the onus of demonstrating bias involving prejudgment lies upon an applicant for judicial review and it is a heavy onus. An allegation of bias must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (supra) at [69]. An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Minister for Immigration and Citizenship & Anor v SZQHH (2012) 200 FCR 223 at [37] per Rares and Jagot JJ. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425 at [28]-[29]. In other words, an apprehension of bias will arise if a fair-minded lay person might think that the administrative decision-maker was “so committed to conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented”: Jia Legeng (supra). Furthermore, 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 (or other decision-maker) might not bring an impartial mind to bear upon the issues that are to be decided.
The Minister submits that a reasonable apprehension of bias must be ascertained against the background of the framework within which the decision-making is conducted. It is well accepted that in considering whether there may be an apprehension of bias, the Court must also appreciate that significant differences exist between the role and powers of judicial officers on the one hand, and administrative decision-makers on the other, as Allsop J (as he was then) said in NADH of & Ors 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19].
The Court must take into account the whole of the transcript of proceedings, rather than sentences taken in isolation: SZRUI (supra) at [75] per Robertson J. In any event, the applicants have not pointed to anything that the Tribunal Member said or did that could lead the Court to conclude that a fair-minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of the decision. In particular, there is nothing in the extracts of the Transcript of the Tribunal hearing set out in the applicant’s written submissions that suggests, either in isolation or combination with the Tribunal’s reasons, that the Tribunal Member had a closed mind to the issues raised and was not open to persuasion.
As explained by Driver FM (as he was then) in SZRHS v Minister for Immigration and Citizenship [2012] FMCA 806 at [26]:
26. …Neither the fact that the tribunal had concerns about the credibility of the applicant and his wife, nor the fact that it questioned them closely about those concerns, can give rise to a reasonable apprehension of bias.
The Minister submits that moreover, the manner in which the Tribunal conducted the proceedings reinforces, rather than detracts from, the fact that the Tribunal Member was open to being persuaded by the applicant’s case. Indeed, the Tribunal expressly invited the applicant at the beginning of the hearing to change or correct any of her previous submissions (Transcript, 7.20), invited her to clarify or expand upon aspects of her evidence (Transcript 23.26; 32.38; 47.3), invited the applicant to take a break after she became distressed (Transcript 27.7; 27.32), offered the applicant a further break to confer with her representative before the conclusion of the hearing (Transcript 49.3) and invited her agent to make oral submissions, which he declined to do (Transcript 49.14).
Further, the Tribunal wrote to the applicant following the hearing inviting her to comment on the independent country information which undermined her claims for protection (CB 119-121; CB 162 at [51]). This information was arguably not required to be put to the applicant under s.424A of the Migration Act because it was general information not specifically about the applicant and therefore came within the exception continued in s.424A(3)(a) of the Migration Act : Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 at [66]-[72] per Beaumont J, at [138] per Merkel and Hely JJ; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44]-[46]; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. Whilst no error is revealed in the Tribunal adopting such a cautious approach, it strongly points against any suggestion that it prejudiced the applicant’s claims or approached the matter with a closed mind: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30].
To the extent that the particulars to Ground two also take issue with the weight given by the Tribunal to the independent country information before it (at CB 165-166 at [61]), it is well-settled that this was a matter solely for the Tribunal to determine as part of its statutory function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
The Minister submits that as has occurred in other similar cases before the Court (SZSQS & Ors v Minister for Immigration & Anor [2013] FCCA 1180 at [34]-[35]; SZSNU v Minister for Immigration & Anor [2013] FCCA 1219 at [39]-[44]), the allegation of apprehended bias is wholly unsubstantiated in light of the evidence before the Court.
Ground Three
The Minister submits that the third ground alleges that the Tribunal asked itself the wrong question by not having regard to whether the applicant’s fear was “well-founded” and instead focusing on whether or not she could obtain “independent verification of sexual assault whilst in prison, and government confirmation of land acquisitions perpetrated by that same government”. It is not apparent from the applicant’s written submissions whether this ground is still pressed.
The Minister submits that in substance, the applicant’s allegation in this regard constitutes nothing more than an expression of dissatisfaction with the Tribunal’s factual findings. Contrary to what the applicant appears to contend, this was not a case where the Tribunal impermissibly imposed a burden of proof upon the applicant: MZXDI v Minister for Immigration and Citizenship [2007] FCA 1782 at [37]. The Tribunal did not require the applicant to provide corroborative evidence to substantiate her claims but simply found after assessing the available independent country information that there was no reports of land being compulsorily acquired in Renao Road or any reliable information more generally on land acquisitions in Shenhe District (CB 166 at [65]). As discussed above, this was a factual matter for the Tribunal to determine which cannot be reviewed by this Court.
Further, the Tribunal acknowledged the difficulty the applicant may have in providing evidence that she was sexually assaulted but found that the “very limited” information provided by the applicant was not sufficient to overcome or alleviate the concerns that it had identified with the credibility of this claim (CB 169 at [71]). The Tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of her claim, were open to it to make on the evidence before it and for the reasons that it gave. The Tribunal was not obliged to uncritically accept any and all allegations made by the applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278), and the weight to be given to her claim and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 281-282. The Tribunal was the sole arbiter of the facts and evidence, and the Court cannot review the merits of the Tribunal’s decision.
The Minister argues that the particulars provided in support of this ground also appears to take issue with the Tribunal’s finding (see CB 170 at [75]) that it did not accept as credible the applicant’s claim that she delayed departing the country so that she could petition the authorities after seeing a news story. Again, this complaint goes no further than an impermissible invitation for the Court to review the merits of the Tribunal’s decision. This was a finding of fact par excellence: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
Ground Four
The Minister submits that Ground Four also alleges that there was a reasonable apprehension of bias and contends that this constituted a breach of s.420 of the Migration Act.
The Minister submits that for the reasons stated above in respect of Ground Two, the applicant’s allegation that the Tribunal’s decision was attended by apprehended bias cannot succeed. In any event, it is argued that s.420 of the Migration Act does not mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision. Even if there were failure on the part of the Tribunal to observe the procedures required by s.420 of the Migration Act, the decision is not reviewable for that reason: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 635; Minister for Immigration and Citizenship v SZMOK & Ors (2009) 257 ALR 427 at [15] per Emmett, Kenny and Jacobson JJ; Minister for Immigration and Citizenship v Li & Anor (2012) 202 FCR 387.
Ground Five
The Minister submits that Ground Five alleges that the Tribunal failed to comply with s.424A of the Migration Act because it failed to put to the applicant for comment its “disbelief” regarding her evidence about the bride price and compulsory land acquisition. As with Ground Three, it is argued that it is unclear from the applicant’s written submissions whether she continues to press this complaint. In any event, this ground cannot succeed as “information” for the purposes of s.424A of the Migration Act does not include the Tribunal’s subjective appraisals, thought processes or determinations about the evidence that is given: SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [17]-[18]; SZSNU (supra) at [51]-[53].
Consideration
In opening submissions, Mr McArdle indicated to the Court that he wished to approach this matter holistically and it was his intention to limit his address to the issue of apprehended bias, which was the substantive ground.
Mr McArdle acknowledged that this was not the first matter that had been brought before the Court through the agent Priscilla International, represented by Mr Harry Huang with the specific focus of apprehended bias. Mr McArdle wished to emphasize that he was not running these matters on behalf of Priscilla International in some sort of “sausage-machine appeal process” on behalf of a series of applicants. Nor was it his intention to canvas this legislation in any way. Mr McArdle informed the Court that he intended to only address the issue of apprehended bias in respect to the handling of the Tribunal hearing on 12 October 2012 and that the subsequent Decision Record, delivered on 11 December 2012.
Mr McArdle acknowledged the decision of the Full Federal Court in SZRUI (supra) per Allsop CJ, Flick and Robertson JJ where their Honours addressed the inquisitorial functions of the Refugee Review Tribunal in relation to statements by the Tribunal Member during the hearing and whether those statements raised a reasonable apprehension of bias. Mr McArdle informed the Court that based on that Full Federal Court decision, he acknowledged that his burden was to demonstrate apprehended bias on the part of the Tribunal and this must be firmly established, accepting that simply being disenchanted with the decision, or being unhappy with the conduct of the Tribunal was insufficient to satisfy that burden. It was accepted that there was no attempt in these proceedings to try to establish actual bias by the Tribunal Member because it was not possible to know what the Tribunal Member was thinking at the relevant times, but rather, he was seeking to establish what a fair-minded lay observer, who is properly informed as to the nature of the proceedings of the matters in issue and the conduct of the Tribunal would apprehend.
Mr McArdle also acknowledge that if a person is going to conduct an administrative hearing, then it is quite available to them to robustly question, challenge to bring out issues by questioning from the bench. Consequently, in this application, it is not attacking the Tribunal Member by being robust in the conduct of the matter. In the judgment of SZRUI (supra) the Court held that this approach can enhance the validity of the judgment where the Tribunal Member brings out essential issues that have been overlooked by the applicant.
In this respect. Mr McArdle referred to the judgment of his Honour Robertson J in SZRUI (supra) at [91], where he stated:
91. Dealing with these contentions in turn, no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10-11, in relation to a claim of actual bias:
It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account...
The entirety of the circumstances must be considered.
Mr McArdle indicated that his firm had prepared selected passages from the hearing to draw the Court’s attention to those particular parts, acknowledging that approach was cherry picking. He invited the Court to listen to the whole of the proceedings from the Tribunal hearing, held on 12 October 2012. As a result of that invitation, I have listened to the entirety of the Tribunal hearing, which is contained on two CDs, identified as Exhibit “B”. In addition, I have also re-heard the audio recording of the extracts of the Tribunal hearing, which is identified as Exhibit “C”. I will make references to the contents of those exhibits below. Interestingly, Mr McArdle indicated that contrary to the bulk of his written submissions, the issue before the Court was not about tone and manner, but rather, the application of the simple principles as identified in SZRUI (supra) and elsewhere.
Both parties have brought to my attention two previous decisions of this Court, being SZSNU (supra) per Judge Manousaridis, delivered 30 August 2013 and SZSQS (supra) per Judge Driver delivered 13 September 2013. These two cases are strikingly similar to the matter before this Court as Mr McArdle has run all three cases and continues in his pleadings and written submissions to press the approach he has adopted in this matter, despite the express criticism by the Court of the approach he took in those matters.
The statement by Mr McArdle that this matter was not advanced in the basis of tone and manner, despite the contents of the written submissions and exhibits tendered, but rather on the application of the simple principles identified in SZRUI (supra). This approach may be a consequence of the comments of Judge Driver and Judge Manousaridis in similarly pleaded proceedings in the Federal Circuit Court.
The initial issue concerns the invitation to listen to the entirety of the Tribunal hearing. In SZSQS (supra) his Honour Judge Driver at [21] stated:
21. The applicants contend that the sound recording of the Tribunal hearing supports a contention of apprehended bias, not because of what was said in terms of the words used but because of the tone of voice used by the presiding member. Because of the nature of the allegation, the transcript was of no real value in dealing with it. It was necessary for me to listen to the sound recording. I did so[1].
[1] I listened to a consolidated recording of three Tribunal CDs, which run for 3 hours, 19 minutes and 38 seconds.
In SZSNU (supra) his Honour Judge Manousaridis at [42] stated:
42. The tone by which the words recorded in the transcript were expressed confirms and reinforces what the transcript reveals. I have listened to the audiotape of the hearing in its entirety, paying specific attention to those parts of the tape the applicant claims manifest a tone that might give rise to a reasonable apprehension of bias. I am firmly of the opinion that nothing said by the Tribunal as recorded by the audiotape can even arguably be contended to suggest the Tribunal expressed words in any of the tones the applicant claims the Tribunal used when expressing such words. It is not apparent from anything submitted by the applicant how it could reasonably be contended the Tribunal member expressed any words in the tones in which Mr Kieran McArdle in his affidavit swore the Tribunal expressed them.
Despite Mr McArdle’s expressed intention to approach this matter in a different way from the approach pleaded and the supporting submissions, for an abundance of caution I believe the initial approach must be briefly addressed.
Attached to the applicant’s written submissions (filed 16 July 2013) is a table identifying 35 particular passages from the Transcript (Zhao Affidavit) which claims to show examples of the conduct complained of in the application. I have included this list of identified passages as a schedule to this judgment (“Schedule 1”). These excerpts are alleged to suggest examples of condescending, aggressive, disbelieving or patronising tone. After hearing the entirety of the audio recording of the Tribunal hearing, with the benefit of considering the findings and comments of both Judge Driver and Judge Manousaridis, I have formed the view that the reference to the Tribunal Member’s tone of questioning is not reflected in the audio recording in this matter.
Further, a table was prepared and handed up, similar to the table attached to the written submissions, which details the excerpts which Mr McArdle suggests contains either an aggressive, condescending, disbelieving or patronising tone. As indicated above, after hearing the recording of the entire hearing I refer to the judgment of Judge Driver in SZSQZ at [32], where he stated:
32. The document prepared by Mr Kieran McArdle, which I used as an aide memoir when listening to the sound recording, refers to the tone of the member as at times patronising, disbelieving, aggressive, discrediting, accusing, disrespectful and suspicious. I listened to the entirety of the sound recording. It is hard to credit that I was listening to the same sound recording as that referred to in the document prepared by Mr McArdle, or the same hearing as that referred to by the first applicant and Mr Huang. The one remarkable thing about the tone of voice of the presiding member in the sound recording is that it barely varied at all. The presiding member’s tone was neutral, even flat. She was entirely unemotional. She was simply gathering information and recording it. The presiding member, at times, sought clarification of evidence provided by the first applicant in particular where it was unclear or where non responsive answers had been provided. Towards the end of the hearing, the presiding member alerted the applicants to the issues about which she was concerned, including the issue of the purpose of their religious practice in Australia. That was proper, even necessary for procedural fairness. There is nothing whatsoever in either the transcript or the sound recording to support any suggestion that the presiding member did not bring an unprejudiced mind to bear upon the review.
I believe his Honour’s comments in the above passage accurately reflect that of the approach adopted by the Tribunal Member in the matter before this Court. Having listened to parties give evidence via an interpreter for a number of years, I readily accept the difficulties attached to this procedure. The key element in these circumstances lies with the interpreter and the question of whether a strictly formal choice of language should be adopted in preference to a more casual and informal approach is not fixed. Also that approach may alter during the period of the hearing in response to the nature and flow of the questions and answers. I also acknowledge that there are numerous ways in which a question can be formulated and that is dictated predominately by the circumstances of the hearing. Consequently, I find that this application was initially pursued on the basis of tone and manner as contained in the pleadings and argued before their Honours Judge Manousaridis and Judge Driver. I do not believe that there was any other option available to Mr McArdle in abandoning that approach in his oral submissions, as the allegation as to the style in which the hearing was conducted is simply not reflected in the tone in the audio recordings in Exhibits “B” and “C”.
Referring to the word used by Judge Driver in SZSQS (supra) at [32], his Honour stated:
32. …The one remarkable thing about the tone of voice of the presiding member in the sound recording is that it barely varied at all. The presiding member’s tone was neutral, even flat. She was entirely unemotional. She was simply gathering information and recording it…
In the matter before this Court this is demonstrated in the following passages. At p.7.20 of the Transcript of the Tribunal Hearing it states:
Member: Is there anything you wish to change or correct on your submissions so far?
Interpreter: No. That is all what I experienced.
(Transcript p.7)
The Tribunal Member was also aware of the applicant distress at making submissions and regularly offered the applicant breaks. At p.27 of the Transcript of the Tribunal Hearing, it states:
Member: If you are unable to make submissions, we can call a break.
Member: Or I can wait a minute while you put yourself together to give submissions.
(Transcript p.27)
Then later on, the Tribunal Member states:
Member: I will let you have a break…
(Transcript p.27)
The Tribunal Member allowed the applicant take a break in circumstances where the applicant was distressed. At p.49 of the Transcript the Tribunal Member allowed the applicant a break to speak privately with her migration agent. The Tribunal Member stated:
Member: I’ve asked your representative if he would like to make any oral submissions, but he has indicated that he wouldn’t.
(Transcript p.49)
The above extracts are consistent with the approach adopted by the Tribunal Member throughout the hearing and form no basis for criticism as to the way the hearing was conducted. Considering these examples, together with the impression formed by listening to the entire hearing, this demonstrates that it is hardly the case that the Tribunal Member had a closed mind or approached the matter in some way which declined the applicant a full opportunity to give her evidence in a real and meaning manner. Nor was there anything in the extracts of the Transcript set out in the applicant’s written submissions that suggest either in isolation or in combination with the Tribunal’s reasons that the Tribunal Member had a closed mind to the issues raised or was not open to persuasion by the applicant’s case. The audio tape reveals that the Tribunal did nothing more than ask questions, test the applicant’s claims and evidence, and point out tentative views about the inconsistency or gaps in her evidence. That approach was entirely appropriate and open to the Tribunal to take. The manner in which the Tribunal Member conducted these proceedings generally reinforced, rather than detracted, the proposition that the approach to the review occurred with an open mind.
In respect to the s.424A letter, sent by the Tribunal (CB 119), the Tribunal set out the details of country information which it says may undermine the applicant’s claim. This information was arguably not required to be put to the applicant pursuant to s.424A because it was general country information not specifically about the applicant. However, there is no error by the Tribunal in adopting this cautious approach, rather, it shows that the Tribunal Member went out of her way to allow the applicant an opportunity to address the concerns that the Tribunal had with her evidence together with the chance to respond to those concerns. The fact that the Tribunal put to the applicant the significant information being that it cast doubt upon the truthfulness of her claims does not demonstrate bias. What the Tribunal is required to do pursuant to s.424A(1)(b) is to ensure as far as reasonably practicable that the applicant understands why the information was relevant to the review and the consequences of it being relied upon in affirming the decision. The Tribunal is doing no more than complying with its statutory obligations.
As indicated elsewhere in this decision Mr McArdle has informed the Court that other than the issue of apprehended bias, the pleaded grounds are no longer relied upon. Again, for an abundance of caution, I note that the particulars in Ground 2 refer to the Tribunal’s assessment of the country information before it, however, this is a matter for the Tribunal to consider as part of its statutory function.
I will now turn to my attention to the allegation of apprehended bias. The claim in this matter is that the Tribunal’s conduct at the hearing and in its Decision Record was such that a “fair minded lay observer, who is properly informed as to the nature of the proceedings” would apprehend them to be encumbered by bias. This is an extremely serious allegation that must be distinctly made and clearly proven. The applicant is placed with the heavy burden to establish that claim. A determination as to the whether an administrative decision is effected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal Member’s mind to be absent of any pre-disposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal Member to be open to persuasion: Jia Legeng (supra) at [72] and [86];
b)Apprehended bias in the contest of an administrative decision maker is not attended with the restrictions that apply to a case of judicial pre-judgment: Jia Legeng (supra) at [179]-[187]; [244]-[245]. In NADH (supra) his Honour Allsop J (as he was then) (with Moore and Tamberlin JJ agreeing) described this difference at [19] where he stated:
19. Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court: Jia at CLR 563–4; ALR 465; Laws at 70–1; ALR 435–6; Ebner at CLR 343–4; ALR 646–7. The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
c)Where credibility is in issue, the Tribunal Member will necessarily have to test the evidence presented – often vigorously; Re Refugee Review Tribunal; Ex parte H (supra) at [30]. The requirements of procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question. Further, the decision-maker’s assessment of the applicant’s credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Re Refugee Review Tribunal; Ex parte H (supra) at [34].
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