SZSNU v Minister for Immigration & Anor
[2013] FCCA 1219
•30 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSNU v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1219 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – apprehended bias – whether the Tribunal complied with sections 424A and 424AA of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.76 |
| Black v Black [1951] NZLR 723 Eastman v The Queen (1997) 76 FCR 9 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Dickason v Edwards (1910) 10 CLR 243 Johnson v Johnson (2000) 201 CLR 488 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 NADH v Minister for Immigration and Indigenous Affairs (2004) 214 ALR 264 R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 Re Minister for Immigration and Multicultural Affairs; Ex Parte Epeabka (2001) 206 CLR 128 Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982 Sawer v Hugh [2010] FamCA 373 SZBYR v Minister for Immigration and Citizenship (2007) 81ALJR 1190 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123 VFAB v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 872 |
| Applicant: | SZSNU |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 143 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 25 July 2013 |
| Date of Last Submission: | 14 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2013 |
REPRESENTATION
| Solicitors for the Applicant: | McArdle Legal |
| Counsel for the Respondents: | Ms Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
Costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 143 of 2013
| SZSNU |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raises two issues. The first is whether the second respondent (Tribunal) conducted a review of a decision of the delegate of the first respondent (Minister) not to grant the applicant a protection visa in circumstances which gave rise to a reasonable apprehension of bias. The second issue is whether the Tribunal failed to comply with s.424A and s.424AA of the Migration Act1958 (Cth)(Act).
Background
The applicant is a male child born in Australia. His parents are nationals of the People’s Republic of China.
On 11 July 2011 the applicant, through his mother, applied to the Minister for a protection visa. The applicant relied on two principal grounds. The first was a fear of persecution that would result from the application of the family planning regulation of Fujian Province to him. The claimed fear was that, having been born out of wedlock, the applicant would not be able to be registered under the family planning regulation, and hence would not be eligible for health and other services, without his parents or some other person paying a social compensation fee; and that his parents would be unable to pay and would be unable to get anyone else to pay the social compensation fee. The second principal ground of his application for a protection visa was a fear of persecution because of his and his parents’ Christian faith.
On 9 September 2011 a delegate of the Minister refused the application. On 29 September 2011 the applicant, again through his mother, applied to the Tribunal for a review of the delegate’s decision. In response to the Tribunal’s invitation, the applicant’s mother, father, and other persons attended a hearing before the Tribunal on 10 and 17 April 2012 and gave evidence. On 24 December 2012 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The Tribunal rejected the applicant’s claim of fear of persecution based on the application of the family planning regulation to him. It did so because the Tribunal found the applicant’s parents will be able to pay the social compensation fee, and consequently secure the applicant’s registration. The Tribunal also rejected the other grounds on which the applicant relied for a protection visa.
The apprehended bias claim
In his written submissions, the applicant claims the Tribunal conducted its review of the delegate’s decision in such a way that a "fair minded lay observer in this case would be (and was) stunned by the level of prejudgment and hostility attested to”; and that the Tribunal member “was committed to an outcome, and in so doing, disregarded facts that were put before her”.[1]
[1] Applicant’s written submissions.
In address, the solicitor for the applicant went further. He submitted that the hearing before the Tribunal was “an interrogation session based on an anxiety to find fault” rather than an “interrogation session based on an anxiety to find out”; that the Tribunal member was “so committed to a conclusion already formed as to be incapable of alteration or [being] persuaded differently”; that all the applicant and his parents had to do “was show up and they would lose”, and that is “what took place in this matter”; the Tribunal member exhibited “exasperation”, “heckling from the bench”, and a “suspicious sneering intonation”; the hearing was conducted as though it were a police interrogation; and what the applicant and his parents encountered was not a fair hearing but “an aggressive inquisitorial assault that was prejudged from the beginning”.
The evidence on which applicant relies to show apprehended bias
In support of his claim, the applicant relies or seeks to rely on three classes of evidence. The first is around sixty questions or statements made by the Tribunal member during the hearing as recorded in a transcript of the hearing. The transcript on which the applicant relies was prepared by Ms Donglin Wu from an audio recording of the hearing she obtained from the Tribunal.
Two solicitors acting for the Minister reviewed the transcript Ms Wu prepared against the audio recording of the hearing. One solicitor reviewed the transcript of 10 April 2012, and the other the transcript of 17 April 2012. Each solicitor made hand written additions and changes to the copy of the transcript Ms Wu prepared. The transcript Ms Wu prepared was annexed to an affidavit of Ms Wu, and a copy of the transcript with the hand written changes made by the Minister’s solicitors was annexed to affidavits made by them.
I did not admit into evidence any of the copies of the transcript. Instead, I accepted the Minister’s submission that I should treat the copies of the transcript as an aid memoire, and consult the audio recording of the hearing (which was admitted into evidence) if I needed to resolve a dispute about the accuracy of the transcript.[2]
[2] Eastman v The Queen (1997) 76 FCR 9
As it happens, none of the amendments made to the transcript Ms Wu prepared are, in my opinion, material. And, having myself listened to the audiotape of the hearing in its entirety, checking against what I heard each of the changes made by the solicitors for the Minister, I find as accurate the changes they made. Further, while listening to the audiotape, I noticed some additional, although minor, errors and omissions. In the passages from the transcript I quote below, I have incorporated changes which, on the basis of my listening of the audiotapes, I consider accurately reflect what is recorded in the audio recording of the hearing.
The passages from the transcript on which the applicant relies as suggesting prejudgment are set out in a table that forms part of the applicant’s written submissions. The applicant has underlined sections of the passages from the table, thus indicating these are the passages the applicant submits particularly suggest pre-judgment or, to be more accurate, particularly might suggest pre-judgment to a fair minded lay observer. From these it is possible to group at least most of the underlined portions of the transcript into three categories.
One category comprises questions or statements by which the Tribunal member expresses doubt about or unwillingness to accept the truth or accuracy or existence of matters asserted by the applicant’s mother. Examples of statements or questions falling into this class include the following:
(a)“I guess my point is that I don’t see these photos can provide[3] any sort of substantiating[4] evidence that your family’s farm is demolished and they lost their live[li]hood.”[5]
(b)“I’ve never heard of that being a part of the Christian faith that you have to pay such a high price to marry”.[6]
(c)“And he hasn’t learnt any skills during that 7 years? I find that hard to believe.”[7]
(d)“[N]ow this makes me concerned Ms [applicant’s mother’s name] that you are not being truthful about your husband’s work experience in Australia and trying to suggest that he has no skills when he does. And the circumstances where he is not paying tax where he’s been paid cash and where I’m doubtful that you’ve been truthful about how much he might have earned I don’t know that I’ll be satisfied that you are in the financial circumstances that you suggest.”[8]
(e)“OK. I do find that hard to believe that they would hold documents for you because they have received notice that you’ve had an unplanned child overseas.”[9]
(f)“So why should I believe that your parents have been taken away 3 times because you wrote a letter to ask that the social compensation fees should be it makes no sense to me at all”.[10]
[3] In Ms Wu’s transcript, “write” is recorded instead of “provide” which is the word recorded in the audio recording.
[4] In Ms Wu’s transcript the word “substantiate” is recorded instead of “substantiating” which is recorded in the audio recording.
[5] Item 2 of applicant’s table.
[6] Item 9 of applicant’s table.
[7] Item 12 of the applicant’s table.
[8] Item 12 of the applicant’s table.
[9] Item 25 of the applicant’s table.
[10] Item 30 of the applicant’s table.
A second category of questions or statements is propositions formulated by the Tribunal coupled with an invitation that the applicant’s mother and in some cases the applicant’s father comment on them. The following are examples:
(a)“I don’t think there’s credible evidence before me to suggest that your children will be persecuted because of your religious beliefs. Do you have any comments about that?”[11]
(b)“I don’t think he would be subjected to any of those types of harm by anyone. There’ll be no intention to cause that type of harm to him. Do you have any comments about that?”[12]
(c)“You might be concerned about that but I don’t, no independent information does support that. [The name of the applicant’s father], do you have anything to say about them?”[13]
(d)“From my point of view your family is supposed to show a history of coming up with large sums of money for particular purposes and that you are being very resourceful in borrowing money for things that you think are particularly important. Do you have any comments about that?”[14]
[11] Item 46 of the applicant’s table.
[12] Item 49 of the applicant’s table.
[13] Item 51 of the applicant’s table.
[14] Item 59 of the applicant’s table. I have set out the passage as corrected by Ms McCaughan and which, so I find, accords with the audio tape of the hearing.
A third category of statements is a variant of the second class in that the Tribunal member “puts” or “suggests” a proposition to the applicant’s mother. The following are examples:
(a)“I put to you Ms [applicant’s mother’s name] you seem to borrow a large amount of money trying to stay in Australia. It suggests that is your number one priority I mean I recognize that you clearly want to stay here.”[15]
(b)“So my question to you is in January 2007 when he was going to childcare for 3 days a week, that could, I suggest to you that could have nothing to do with any possible diagnosis relating to autism. This is also before the birth of your second child. So I suggest to you that if you weren’t working and you have such financial difficulty that you may have looked after your child rather than spend almost 200 dollars a week sending him to childcare. And perhaps, I am suggesting to you perhaps you were working, I don’t know. I have no way of checking.”[16]
[15] Item 13 of the applicant’s table.
[16] Item 20 of the applicant’s table. The sentence “I have no way of checking” is not included in Ms Wu’s transcript, but the words are recorded in the audio.
The second class of evidence on which the applicant relies is the audiotape of the hearing. The applicant relies on the tape as evidence of the tone of the Tribunal member. The particular parts of the tape on which the applicant relies, at least as examples of conduct which might manifest prejudgment, are identified in an annexure to an affidavit affirmed on 30 July 2013 by Mr Huang, the applicant’s migration agent. The table transcribes the passages on which the applicant relies, and, with respect to each passage, identifies the pin point reference and what is asserted to be the tone in which the Tribunal member spoke the transcribed passage. The passages are said to have been spoken in one of the following tones: “accusing, discrediting tone”, “disbelieving tone”, “disbelieving and accusing tone”, “suspicious and intimidating tone”; “accusing and discrediting tone”, “disbelieving and dismissive tone”, “pre determine assumption and accusing tone”, “accusing tone intimidating tone and interrupting explanation of applicant”, “discrediting tone”, “patronizing tone, disbelieving tone”, “accusing tone”, “dismissive tone”, “patronizing and dismissive tone”, and “ignorant tone”.
Mr Huang’s affidavit was delivered to my associate after the hearing together with an affidavit of Mr Kieran McArdle. The Minister objects to my receiving the affidavit because it was not served pursuant to any leave granted by me. I will deal with that objection below. I will, however, rely on the annexure as a document which identifies specific passages from the hearing the applicant submits might suggest pre-judgment on the part of the Tribunal and, with respect to each passage, the reason the applicant submits the passage might suggest pre-judgment.
The third class of evidence on which the applicant relies is affidavits. One is an affidavit affirmed by the applicant’s mother in which she sets out her perceptions of what occurred at the hearing. The applicant’s mother says that the “behaviour of the Tribunal member was hostile from the beginning”, by which the applicant’s mother says she means the Tribunal member “acted as though whatever I said, she did not believe me”, and that her impression of the Tribunal member “for the entire hearing was that she was the opponent”. I read this affidavit subject to relevance.
A second affidavit on which the applicant relies is the affidavit of Mr Huang made on 30 July 2013 to which I refer above. In that affidavit, Mr Huang expresses the opinion that the hearing before the Tribunal is “one of the worst examples of pre judgment and bias that I have heard” and that, having heard the audiotape of the hearing, he realises that “nothing the applicant said was going to result in an outcome favourable to them”.
A third affidavit on which the applicant relies is that of Mr Kieran McArdle to which I also refer above. In that affidavit, Mr Kieran McArdle says he listened to the audiotape of the hearing, and recorded in annexure “A” to his affidavit his perceptions of the tone and turn of phrase used by the Tribunal member during the hearing. The applicant appears to rely on this affidavit as evidence of how a “reasonable persons with commercial experience” would perceive the tone of the Tribunal member.
Legal principles
Before I consider the Minister’s objections to the affidavits, including the objection based on relevance, it will be necessary to identify the legal principles that govern the applicant’s claim based on apprehended bias.
The apprehension of bias principle as it applies to courts
The starting point is a principle that applies to judges: a judge is disqualified from hearing a case if there is the appearance of bias; and there will be an appearance of bias if “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 the judge is required to decide”.[17]
[17] Johnson v Johnson (2000) 201 CLR 488 at 492 ([11]); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 ([6]); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 ([32])
The application of this principle, which has been referred to as the “apprehension of bias principle”,[18] requires two steps.[19] The first is “the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”. The second is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[18] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 ([6]).
[19] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 ([8])
One class of conduct that might lead a judge to decide a case other than on its legal and factual merits is prejudgment. “Prejudgment” refers to a state of mind that is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.[20] A judge may manifest prejudgment by expressing a “premature disbelief in the credibility” of a party or witness,[21] or by expressing concluded views during the hearing.[22] The requirement that a judge not prejudge a case, however, does not require the judge’s mind to be blank; the question is “whether it is open to persuasion”.[23] Further, the apprehension of bias principle “does not require the absence of any predisposition or inclination for or against an argument or conclusion”.[24] It has been said that:[25]
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing these opinions, and being given an opportunity to deal with them.
[20] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 [72]
[21] Black v Black [1951] NZLR 723 at 729 (Cooke J). I acknowledge the scholarship of John Tarrant in his book Disqualification for Bias, The Federation Press, 2012 which led me to this case.
[22] Examples are discussed and cited in J Tarrant Disqualification for Bias, The Federation Press, 2012 at 122-128.
[23] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 [72] (Gleeson CJ and Gummow J).
[24] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 [72] (Gleeson CJ and Gummow J).
[25] Johnson v Johnson (2000) 201 CLR 488 at 493 ([13].
Another class of conduct that might give rise to a reasonable apprehension of bias, and which the applicant also appears to claim the Tribunal demonstrated in this case, is hostility and, in general, conduct which departs from proper standards of fairness.[26]
[26] Examples are discussed and cited in J Tarrant Disqualification for Bias, The Federation Press, 2012 at 197-203.
Whether or not conduct might give rise to a reasonable apprehension of bias is decided by reference to what “a fair-minded lay observer might reasonably apprehend”. This “hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective”.[27] While the fictional observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness is to be considered in the context of ordinary judicial practice”.[28]
[27] Johnson v Johnson (2000) 201 CLR 488 at 493 ([12]).
[28] Johnson v Johnson (2000) 201 CLR 488 at 493 ([13]).
The apprehension of bias principle as it applies to the Tribunal
The apprehension of bias principle applies to administrative tribunals in general,[29] including the Tribunal.[30] The practical operation of the apprehension of bias principle, however, may operate differently when applied to a decision-maker that is not a court.[31] That means:[32]
[T]he rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings and the respects and extent to which this will so depends on the functions the decision-maker is required to undertake.
[29] See for example R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554 referring to the “well known passages from Allinson v General Council of Medial Education and Registration [1894] 1 Q.B. 750 as cited and commented upon by Issacs J. in Dickason v Edwards (1910) 10 CLR 243 at p. 258.”
[30] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
[31] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-344 [4]
[32] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [5]
These observations have been applied to the statutory functions and procedures of the Tribunal:[33]
The kind of conduct on the part of the Tribunal that might give rise to a reasonable apprehension of bias needs to be considered in the light of the Tribunal’s statutory functions and procedures. Conduct which, on the part of a judge in adversarial litigation, might result in such an apprehension, might not have the same result when engaged in by the Tribunal. That is another matter.
[33] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 138 ([27])
The characteristics of the Tribunal that need to be taken into account when considering the practical application of the apprehension of bias principle to the Tribunal include “the non-adversarial form of its procedures, the nature of the matters it is required to consider in coming to a decision”, and the Act “which in some respects directly modifies those requirements”.[34] The characteristics of the Tribunal that must be considered when determining the content of the apprehension of bias principle as it applies to the Tribunal are also identified in the following passage from the reasons of judgment of Allsop J (as his Honour then was) in NADH v Minister for Immigration and Indigenous Affairs:[35]
The Tribunal . . . 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.
[34] Re Minister for Immigration and Multicultural Affairs ; Ex parte Epeabaka (2001) 206 CLR 128 at 138 ([27])
[35] (2004) 214 ALR 264 at 269
In light of these authorities, the apprehension of bias principle as it applies to the Tribunal may be stated as follows: there will be an appearance of bias by the Tribunal if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.
At this point I should refer to the reasons of judgment of Allsop CJ in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship,[36] where his Honour noted that the words “fair-minded” as used in the formulation of the apprehension of bias principle “should be recognized for the central part they play in the assessment” of whether the principle has been breached.[37] His Honour said:[38]
It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of power.
[36] [2013] FCAFC 80
[37] [2013] FCAFC 80 at [2]
[38] [2013] FCAFC 80 at [4]
Contents of the apprehended bias principle as applied to the Tribunal
The practical content of the apprehension of bias principle as it applies to the Tribunal has been considered in a number of cases. Particularly useful is the discussion and collection of cases by Flick J in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[39]
[39] [2013] FCAFC 80
In that case his Honour noted a number of matters including the following. First, “[r]obust and forthright testing of the appellant’s claims by the Tribunal does not sustain a finding of apprehended bias”.[40] Second, although the Tribunal is not required to continually disclose its reasoning, “it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies”.[41] Third, the difficulty in any given case “is to identify those cases in which a decision-maker is expressing tentative views . . . . as opposed to those cases where they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind”.[42] Fourth, “[o]ccasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias”.[43]
[40] [2013] FCAFC 80 at [24] being a quote from the reasons of judgment of Barker J in SZOAF v Minister for Immigration and Citizenship [2010] 431 at [17] per Barker J
[41] [2013] FCAFC 80 at [27]
[42] [2013] FCAFC 80 at [27]
[43] [2013] FCAFC 80 at [31] quoting from the reasons of judgment of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Ultimately, his Honour said, all cases where a reviewing court has to determine whether the Tribunal’s conduct gives rise to an apprehension of bias involves the striking of a balance:[44]
. . . .between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately initial assessment may prove to be ill-founded and misconceived.
[44] [2013] FCAFC 80 at [33]
Admissibility of affidavits on which applicant relies
The affidavit of the applicant’s mother to which I refer to earlier in these reasons is inadmissible to the extent it contains expressions of opinion about what occurred at the Tribunal.[45] Evidence of what occurred at the hearing is contained in the audio recording of the hearing, which has been admitted into evidence.
[45] Section 76 Evidence Act 1995.
The affidavit is also irrelevant, as are the affidavit of Mr Kieran McArdle and the affidavit of Mr Huang made on 30 July 2013. As I understand it, the applicant seeks to rely on all three affidavits as evidence of how a fair minded lay observer might reasonably apprehend the Tribunal’s conduct. The purpose of the hypothetical fair minded lay person, however, is to serve as an objective standard against which to assess a decision-maker’s conduct. What that objective standard is cannot be established by evidence of a particular persons’ actual and hence necessarily subjective assessment of a particular proceeding.
This point was made by Bennett J in Sawer v Hugh:[46]
A hypothetical reasonable observer of the judge’s conduct is used to emphasise that the test is objective, and is not based purely upon the assessment of one judge by a number of his colleagues, or by an actual observer seated in court. Most significantly, the application of the test does not involve the Court taking evidence from the postulated lay person. I mention this discussion because the father then expanded his reference to bias to include my opinion that the paternal grandfather.
[46] [2010] FAMCA 373 at [31]. I again acknowledge the scholarship of J Tarrant in his book Disqualification for Bias Federation Press 2012 at 60 who led me to this case.
Although, in my opinion, these affidavits are irrelevant, I will treat them as containing the grounds on which the applicant relies for claiming that the Tribunal’s conduct, as revealed by the transcript and audio tape, give rise to a reasonable apprehension of bias.
Does the evidence reveal reasonable apprehension of bias?
I now turn to consider whether, as claimed by the applicant, a fair-minded lay observer might reasonably apprehend the Tribunal might not have brought an impartial and unprejudiced mind to the review it conducted of the applicants’ claim for a protection visa. In my opinion, that question must be answered in the negative.
The transcript as a whole, including the specific passages on which the applicant relies to show bias, reveals that during the hearing the Tribunal asked simple, non-leading questions; brought to the attention of the applicant’s parents, for their comments, assertions made by the applicant’s parents, or other matters which the Tribunal indicated the Tribunal may not accept or had difficulty in accepting; communicated to the applicant’s parents, for their comments, propositions which, if accepted by the Tribunal, might lead it to reject the applicant’s claim; and put or suggested to the applicant’s parents a number of propositions for their acceptance or rejection. This is not conduct which might lead a fair-minded lay observer to reasonably apprehend the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”. The transcript shows nothing that approaches the constant interruptions and challenges to the applicant’s truthfulness found in Re Refugee Review Tribunal; Ex parte H,[47] or to the conduct found in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs[48] and in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[49]
[47] (2001) 75 ALJR 982 at [32]
[48] [2003] FCA 872
[49] [2013] FCAFC 80
To the extent the Tribunal, by identifying concerns it had with particular matters, might be taken to have reached views about such matters, the evidence does not support an inference that these views were anything other than tentative. To infer otherwise is to characterise the Tribunal’s asking questions about these matters as a charade where there are no circumstances to warrant such an inference. On the contrary, the Tribunal’s holding and conveying its concerns to the applicant’s parents enhanced the fairness of the hearing by alerting the applicant’s parents of deficiencies the Tribunal perceived in the applicant’s claim and affording the applicant’s parents an opportunity to address those perceived deficiencies.
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.
It appears the applicant’s mother believes the Tribunal set itself against accepting anything the applicant’s mother or father said. This is made clear in her affidavit in which she says that whatever “we said, she [i.e., the Tribunal member] said she “had trouble believing us” and similar – whatever we said”. Quite apart from this evidence being irrelevant, it is incorrect. The Tribunal accepted most of the applicant’s evidence.[50]
While the Tribunal raised some apparent inconsistencies in the parents’ evidence about their respective employment history in Australia, the Tribunal does not consider that these inconsistencies were significant enough to impugn the parents’ evidence regarding their work histories to a significant extent nor their credibility generally.
[50] CB 367 [185].
Finally, having read the transcript and heard the audiotape of the hearing, I am of the opinion that no person who appeared before the Tribunal was treated in a way that gave or could reasonably give rise to the appearance of unfairness being present in the exercise of power.
Claims based on non-compliance with s.424A and s.424AA of the Act
The applicant claims that the Tribunal, contrary to the obligations imposed on it by s.424A or s.424AA of the Act, failed to:
(a)provide to the applicant clear particulars of information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review;
(b)ensure, when it was reasonably practicable for it to do so, that the applicant understood why the information was relevant to the review, and the consequences of it being relied on in affirming the decision that was under review; and
(c)invite the applicant’s parents to comment or respond to it.
The information the applicant claims the Tribunal did not provide
The information, or at least some of the information of which the applicant claims the Tribunal failed to give him particulars is said to be identified in the affidavit of Mr Huang made on 14 May 2013.[51] In that affidavit, Mr Huang says:
I was not notified by the Member that she was intending to make a finding that my infant client would not actually be subject to suffering and persecution under the Refugee Convention, or ill treatment as defined by the Complementary Protection provisions, because he is a black child.
[51] Applicant’s written submissions, page 2: “The evidence of Mr Huang is clear on this point. The Member . . . did not either in the hearing, nor in writing separate from the hearing, give to the appellant [sic] (represented by his parents) either of the opportunities required by statute.”
It appears, at least from the applicant’s written submissions, that the information the applicant claims the Tribunal ought to have given him under s.424A or s.424AA is the Tribunal’s ultimate finding that the applicant would not face persecution in China on account of his being a “black child”.[52] That this is the information the applicant claims the Tribunal ought to have provided the applicant was confirmed by the applicant’s solicitor during address. He submitted that the relevant information was “the entirety of the finding, that is, the child is not a black child, the child will not be subjected to anything that covers the Refugee Convention, the child will be okay, the parents actually do have the money. It’s an entirety issue . . . . It’s not some isolated checking boxes issue”.[53]
[52] The expression “black child” refers to a child who is not eligible to apply for household registration (“hukou”) under China’s family planning laws - CB10.
[53] Transcript: 25.18
Later in his address, however, the solicitor for the applicant submitted that the information the Tribunal was required to provide to the applicant under s.424A and s.424AA was all the information on which the Tribunal ultimately relied when it determined the applicant was not entitled to a protection visa.[54] This resulted in a discussion about whether the applicant had identified the information on which the Tribunal relied but of which it did not give particulars to the applicant. That discussion led to my directing the applicant to provide to my associate by 22 August 2013 a document that identified with precision the information the applicant says the Tribunal relied upon but did not put to the applicant for comment. The applicant provided no such document. Instead, the applicant’s solicitor provided to my associate the affidavits of Mr Kieran McArdle and Mr Huang to which I refer above.
[54] Transcript: 28.30-35
Minister’s submissions
The Minister makes two submissions in answer to the applicant’s claim that the Tribunal failed to comply with s.424A or s.424AA of the Act. First, the applicant has not identified the information the applicant claims the Tribunal did not provide to him. Second, the information the applicant appears to claim the Tribunal should have given him includes information of the Tribunal’s thought processes, being information that does not fall within the meaning of “information” as that word appears in s.424AA[55].
[55] Relying on VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
In my opinion, the Minister’s submissions should be accepted.
Did the Tribunal fail to comply with s.424A and s.424AA?
What constitutes “information” for the purposes of s.424A of the Act was considered by the Full Court of the Federal Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs.[56] The Court said that “information”, as used in s.424A, refers to “knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”. The Court further said that “information” “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations . . . extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps”.[57]
[56] [2004] FCAFC 123 (Finn, Merkel and Stone JJ)
[57] [2004] FCAFC 123 at [24]
This last passage was quoted with approval by the plurality in SZBYR v Minister for Immigration and Citizenship.[58] The plurality added the further observations:[59]
If the contrary were true, s424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
[58] (2007) 81 ALJR 1190 at [18]
[59] (2007) 81 ALJR 1190 at [18]
Apart from the “information” identified in the applicant’s written submissions, the applicant has not identified what he alleges was the information the Tribunal was obliged to provide to the applicant but which it failed to provide. Even if it could be said the applicant has identified matters which he claims constitutes “information”, he has not demonstrated that such matters are “information” within the meaning of s.424A. And as to the “information” identified in Mr Huang’s affidavit, that is not “information” within the meaning of s.424A. It obviously does not constitute evidentiary material. It is a determination or findings based on materials the Tribunal has considered.
Admissibility of Mr Huang’s affidavit of 14 May 2013
I should here record the reasons why, in my opinion, Mr Huang’s affidavit of 14 May 2013 is irrelevant. The intended relevance of the affidavit was to show that, had Mr Huang been provided with the information the applicant claims the Tribunal ought to have provided him, Mr Huang would have provided material information to the Tribunal which would or could have led the Tribunal to make a different decision to that which it made. Such considerations, however, are entirely irrelevant to whether the Tribunal commits jurisdictional error by not complying with s.424A or s.424AA. Section 424A is mandatory; any breach of the section constitutes jurisdictional error.[60] The same would be the case with s.424AA.
[60] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [13]
Other grounds
At the hearing, the claim based on a failure to comply with s.424A and s.424AA was treated as falling within ground 1 of the grounds of application contained in the amended application. And the claim for bias was treated as falling within ground 2 of those grounds. The solicitor for the applicant indicated during the hearing that ground 3 of the grounds of review is to be treated as a particular of bias. The solicitor accepted ground 4 as being another way of raising the claim for apprehended bias, and that ground 5 was another way of raising ground 1.
Conclusions and disposition
The Tribunal did not conduct its review of the delegate’s decision to refuse to grant the applicant a protection visa in circumstances giving rise to a reasonable apprehension of bias. Nor did the Tribunal fail to comply with s.424A or s.424AA of the Act. In these circumstances, I propose to dismiss the application.
I will hear the parties on the question of costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 August 2013
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