SZTJF v Minister for Immigration - [2014] FCCA 1638

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJF v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1638

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Fiji – applicant disbelieved in important respects – Tribunal’s adverse credibility assessment based upon the same material as it used to reject her cousin’s claims a few days before her hearing – applicant told of the information but not the outcome in her cousin’s case – whether the Tribunal gave the applicant sufficient time to respond to the information and sufficiently explained the issues on which the review would turn, and whether the circumstances gave rise to an apprehension of bias considered.

Legislation:

Migration Act 1958 (Cth), ss.336E, 424A, 424AA, 439

Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minister for Immigration v Jia (2001) 178 ALR 421
Minister for Immigration v Li [2013] HCA 18
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SBBS vMinister for Immigration (2002) 194 ALR 749
SZAPC v Minister for Immigration [2005] FCA 995
SZMCD v Minister for Immigration [2009] FCAFC 46

Applicant:

SZTJF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2435 of 2013

Judgment of:

Judge Driver

Hearing date:

24 July 2014

Delivered at:

Sydney

Delivered on:

5 September 2014

REPRESENTATION

Solicitors for the Applicant:

Mr A Silva

Solicitors for the Respondents:

Mr L Dennis

Sparke Helmore

ORDERS

A writ of certiorari shall issue removing the record of the decision of the Refugee Review Tribunal made on 20 September 2013 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2435 of 2013

SZTJF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 20 September 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant, a citizen of Fiji, arrived in Australia on a tourist visa granted on 15 March 2012. On 21 August 2012, she applied for a Protection (Class XA) visa[1]. On 31 December 2012, a delegate of the Minister refused to grant the applicant the visa[2]. On 24 January 2013, the Tribunal received an application for review of the delegate’s decision[3]. On 20 September 2013, following a hearing which took place on 10 September 2013[4], the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa[5]. By application dated 16 October 2013, and amended on 10 January 2014 and further amended more recently, the applicant seeks judicial review of the Tribunal’s decision.
[1] Court Book (CB) 2
[2] CB 86
[3] CB 101
[4] CB 129
[5] CB 137

Applicant’s claims

The applicant claimed to fear harm in Fiji from the country’s military and police because she was viewed as a trouble-maker and opponent of the regime. She claimed she came to the adverse attention of the Fijian regime, including the police, on several occasions in the past because she was married to the former mayor of Savusavu, conducted community work, was President of the Hidden Paradise Multiracial Women’s Group (HPMWG) and had adverse encounters with the police in October and November 2011.
The applicant claimed to hold a particular fear of three men who she claimed had “great control over the army and the police”[6]. The men she identified were: the current Minister for Agriculture, Fisheries and Forests (Colonel Inia Seruiatu), Commissioner for Northern region (Mr Alipate Bola) and the Sub-Inspector for Police Kapiaa. The applicant claimed further that the Commissioner and Colonel were close relatives and that she would not be discreet in expressing her views on basic rights if she returned to Fiji.
[6] CB 138: [7]

Tribunal decision

The Tribunal found that aspects of the applicant’s claimed circumstances were consistent and supported by reliable sources. For example, it accepted that she was married, had seven children, separated in 2009 and that her husband was the former Mayor of Savusavu and maintained a public profile[7]. However, the Tribunal also found that the evidence did not reveal that her husband had any adverse profile or that the applicant would be at any risk of harm because of her connection to him, particularly as they had separated[8].
[7] CB 140: [14]-[16]
[8] CB 140:[17]
After exploring the applicant’s claims at a lengthy hearing, the Tribunal found that significant aspects of her claims and evidence were “problematic and lacking in credibility”[9]. The Tribunal found that significant aspects of her evidence were “vague, changing, rehearsed, unconvincing and untrue”[10]. For example, the Tribunal maintained its concern about the applicant’s evidence regarding her living arrangements in Australia and her departure from Fiji[11], which the Tribunal identified was different to other evidence that was before it.
[9] CB 140:[13]
[10] CB 141:[18]
[11] CB 141:[19]-[20]
The Tribunal’s credibility concerns were compounded by the applicant having identified no difficulty in leaving Fiji, and having delayed departure for two months after her tourist visa was granted. The Tribunal did not accept that her explanations for the delay were plausible[12].
[12] CB 142:[24]-[26]
The Tribunal placed reliance on the very limited adverse approaches that the applicant claimed she experienced from any person or agent of the Fijian regime[13]. In addition, the Tribunal found the applicant’s evidence that her daughter-in-law was approached and threatened was not credible[14] and that her evidence about her role with the HPMWG was “uncertain and unconvincing”[15] and in other respects “vague”[16]. It also found that the applicant sought to interchangeably portray herself as vulnerable and elderly; but also claimed that she had spoken “critically and sarcastically to police” in October 2011.
[13] CB 142-143:[27]-[29]
[14] CB 143:[30]-[31]
[15] CB 143:[32]-[34]
[16] CB 144:[36], [39]
Given its credibility concerns, the Tribunal did not accept the applicant’s claims about being President of the HPMWG or that she had had the claimed adverse encounter with the police in October 2011[17]. Nor did it accept on the basis of its credibility concerns that she had any adverse profile with the police in November 2011[18] or confronted them in February 2012[19]. Similarly, the Tribunal was not satisfied that the applicant had any intention or desire or would speak out about human rights[20]. For these reasons, the Tribunal was not satisfied that she met the refugee or complementary protection criteria for a protection visa[21].
[17] CB 145:[42]
[18] CB 145:[43]
[19] CB 145-146:[44]-[45]
[20] CB 146:[46]-[48]
[21] CB 146:[49]-[50]

The judicial review application

These proceedings began with a show cause application filed on 9 October 2013. An amended application was filed on 10 January 2014. The applicant sought leave to file in court a further amended application at the trial of this matter on 24 July 2014. That leave was opposed by the Minister on grounds of non compliance with the timetable set by the Court on 23 October 2013 and prejudice. I determined, however, that leave should be granted as the Minister had had advance notice of the proposed further amended application and had dealt with the arguments bearing upon those grounds in his outline of legal submissions filed on 15 July 2014, with the benefit of having seen the applicant’s outline of final submissions provided on 10 July 2014.
The further amended application contains the following particularised grounds[22]:
[22] Grounds 1 and 2(a) were not reproduced in the further amended application as they were not pursued
…
(2) The Tribunal made jurisdictional error in (a) not providing procedural fairness to the applicant and being(b) Wednesbury Unreasonable to the applicant
Particulars
The applicant was not represented before the Tribunal and:
(a) not pursued
(b) When the applicant asked for time to respond to adverse information put to her under s.424AA the Tribunal breached s.424AA(b)(iv) as it only gave one day which was harsh and thus it was a denial of procedural fairness as well as an exercise of discretion in a manner that was Wednesbury Unreasonable.
See CB 141-142 ([18] to [23]). Also transcript Pg 54 ln 15-40.
(3) The Tribunal was Wednesbury Unreasonable in the way it dealt with two of the vital claims made by the applicant
Particulars
(a) about the hospital incident and
(b) about the dance incident
The Tribunal drew adverse inferences on credibility while none existed or based on pure speculation. It appeared that the Tribunal was intent on drawing negative inferences whatever the response the applicant gave bordering on demonstrating apprehended bias.
See CB 145-146 ([44] to [45]). Transcript pg 46-53 for hospital incident.
See CB 144-145 ([39] to [40]). Transcript pg 33-36 for dance incident.
(4) The Tribunal made jurisdictional error by (a) denying procedural fairness to the applicant (b) taking irrelevant consideration into account
Particulars
The Tribunal queried the applicant’s cousin at her hearing about the basis of the applicant’s case. The Tribunal further drew adverse inference from the applicant’s cousin’s inability to provide clear response to those queries. The Tribunal did not disclose that to the applicant at the hearing of the applicant as it was required to do to provide procedural fairness to the applicant.
(5) The Tribunal made jurisdictional error in that the Tribunal was biased or there was apprehended bias
Particulars
The way that the Tribunal conducted it shearing and the way it made its decision, especially the following matters cause apprehension that it was biased or lends credence to the fact that it was truly biased.
(i) Its questioning of the Cousin about the applicant’s case and prejudice lingering from there;
(ii) Refusal of time for addressing 424AA issues;
(iii) Making adverse findings without factual basis;
(iv) Closed mind apparent from its efforts to find smallest of reasons to find credibility finding against the applicant;
(v) Exaggerated expression of credibility concerns; and
(vi) Recklessly rejecting claims without due considerations.
I received as evidence the court book filed on 26 November 2013 and two affidavits by the applicant. The first affidavit was filed on 9 January 2014 and attaches a Spark and Cannon transcript of the hearing conducted by the Tribunal in the applicant’s case on 10 September 2013. The second affidavit was filed on 17 March 2014 and encloses a copy of the decision record of the Tribunal in respect of another decision made on 6 September 2013[23] and the transcript of the hearing conducted by the Tribunal in that case on 5 September 2013.
[23] RRT Case number 1219873
The Minister objected to the receipt of the second affidavit to the extent that it was not relevant to an issue in the proceedings. I received the affidavit subject to determinations of relevance. I have concluded that the earlier Tribunal decision and the transcript relating to that case are relevant for the purposes of dealing with Grounds 2, 4 and 5 in the further amended application.
The parties both made written and oral submissions.

Consideration

As is noted in the further amended application, Ground 1 of the earlier amended application was abandoned. Ground 2 asserts that the decision of the Tribunal to give the applicant only one day to respond to adverse information put to her at the Tribunal hearing, pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act) involved a breach of s.424AA(b)(iv) of the Migration Act and was procedurally unfair and legally unreasonable.
Section 424AA of the Migration Act provides as follows:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The section confers on an applicant before the Tribunal an entitlement to know that she may seek additional time to comment on or respond to the adverse information put but it does not confer any entitlement to receive any particular amount of additional time. Section 424AA(b)(iv) confers upon the Tribunal a discretion to decide whether to adjourn the review if the applicant seeks more time to respond and requires the Tribunal to consider whether the applicant reasonably needs additional time to comment on or respond to the information.
The Tribunal deals specifically with the adverse information in issue in its reasons under the heading “General credibility concerns” at [18]-[23] of its reasons[24]:
The Tribunal had the benefit of exploring the applicant’s claims with her during an extended hearing of around three hours duration on 10 September 2013. Significant aspects of the evidence she gave during that appearance impressed the Tribunal as vague, changing, rehearsed, unconvincing and untrue.
Of most concern, early in the hearing the Tribunal explored the applicant’s living arrangements in Australia. It noted that she has given her address as being a specified street in Townsville. She told the Tribunal that this is the home of a friend of her brother’s being Rusiate Varani (the person who assisted in the preparation of aspects of her Protection visa application and review application); she lived there with Mr Varani, his wife their children and one grandchild; she knows of no other relatives who have lived at that address in her time in Australia; she works at a nursing home on Palm Island and travels between there and the given address in Townsville; she knows of a lady named “Maria Daveta” who also works at the same nursing home on Palm Island but they are not related; she cannot recall when she last saw Maria but it was last week some time; the only relative she knows on Palm Island is her brother, his family and a cousin named Ilikena Dabea.
The Tribunal also asked if she travelled alone from Fiji on her most recent journey to Australia. She responded that she travelled alone but met the same Maria referred to above entirely by coincidence when she was paying her airfare and had no idea before that time that Maria was intending to come to Australia. She had no interaction with Maria before coincidentally bumping into her while paying her airfare.
Later in the hearing the Tribunal put to the applicant under section 424AA of the Act that it has information from a department Tourist Visa application which indicates that the applicant and another Fijian lady (person X) applied for their Australian Tourist visas at the same time in March 2012, with a person of the applicant’s name and passport number providing a letter to the department indicating that she and X are cousins. Also: department records indicate that they travelled to Australia on the same flight and cleared immigration within seconds of one another; and Tribunal records indicate that they currently reside at the same address in Townsville. The Tribunal noted that the above is relevant to the review as it appears very different from the evidence she gave earlier regarding her travels to Australia, having only coincidentally found out of “Maria’s” trip to Australia and having no relatives other than the ones she named living at the address she gave in Townsville. The Tribunal noted that if it relies on the information put to her it may conclude that she has not been forthcoming or truthful in the evidence she has given, not only in relation to matters specifically referred to above, but more generally. The Tribunal informed her of her right to request additional time to respond but noted that she may also respond immediately.
The above information was put to the applicant at the end of her Tribunal hearing, after all her claims had been fully explored. She requested additional time to respond which was allowed. Her written response, provided the day after the hearing was to the effect that she and X are first cousins; she didn’t disclose that during the hearing as she considers her application to be separate and X’s details to be confidential; she has hypertension and high blood pressure, had a headache, felt dehydrated “uneasy and barely conscious” during her hearing but “I kept it to myself and pretended everything was alright” and “was blank” when asked about her relationship with X; she now realizes the “extent of the blunder that I have made” and in hindsight thinks she did not answer other questions properly due to anxiety, stress and pressure; her claims are based on her own experiences and she is not aware of X’s claims; and she apologizes to the Tribunal if her evidence raises doubts and she did not intend to mislead the Tribunal.
The Tribunal has considered the above in the context of all the evidence before it. Given that the applicant’s claims regarding her state of health and wellbeing during the hearing: were not advanced at any point during the hearing; have only been advanced in response to significant credibility concerns being put to the applicant; are not supported by independent evidence; and arise in the context of extensive credibility concerns detailed in the balance of the Tribunal’s considerations, the Tribunal finds them unconvincing in addressing the concerns put to the applicant. The Tribunal notes that at no stage did it mention to the applicant that X has lodged a Protection visa or ask the applicant to disclose personal identifiers regarding X. It had originally asked her only if she most recently travelled alone to Australia from Fiji, about her living arrangements in Australia and her relatives in Australia. The Tribunal considers the applicant’s original responses to the Tribunal, which omitted any reference to X, to have been deliberate and to demonstrate a willingness on her part to provide false and/or misleading evidence to the Tribunal. This casts doubt on the applicant’s general reliability and credibility as a witness.
[24] CB 141-142
The transcript confirms the tenor of the discussion between the Tribunal and the applicant about the adverse material and the applicant’s request for time to respond to it. The applicant was plainly taken aback by the information put to her and did not know at the time how to respond to it. She did not say that one day was inadequate and, indeed, she did respond the following day. The question is, however, whether the applicant was given a fair opportunity to respond.

What the Tribunal did not tell the applicant was that it had, on 6 September 2013 (five days before the hearing of the applicant’s case), given its decision in her cousin’s case which included the following reasoning at [11]:
While the applicant told the Tribunal early in the hearing that she: most recently came to Australia alone and with no other family member or relative; lives at a specified address in Townsville with her Australian cousin …, his wife and children and that no other relative or person has ever lived with her at that address; works on Palm Island; does not personally know anyone else who has applied for a Protection visa in Australia. However, as put to her under section 424AA, all of the above claimed circumstances are inconsistent with other information before the Tribunal. Specifically, as put to the applicant, documentation provided in respect of her most recent Australian Tourist visa application together with Department movement records and Tribunal records indicate that: she applied for that visa with her cousin X (whose name and passport details are specified in that documentation); they travelled to Australia on the same flight, entered Australia on the same date and time; and they currently reside at the same address in Townsville. In response the applicant offered that she did not mention this earlier as her cousin has applied separately for a Protection visa and she didn’t think she needed to mention that cousin. However, as put to the applicant, this does not overcome the Tribunal’s concerns that she appears to have not been forthcoming or truthful in answering the tribunal’s questions regarding aspects of her claimed circumstances, which in turn raises concerns about the truthfulness of other aspects of her evidence. When the applicant ultimately changed her evidence and told the Tribunal that she did travel to Australia with X, did live with X in Townsville and added that they also work together on Palm Island, the Tribunal asked, in the context of the time they appear to have spent together, she has any understanding of why X fears returning to Fiji. Her response impressed the Tribunal s evasive, comprising: long pauses; she has not read her cousin’s application or claims; and she does not know any detail about why X is seeking Australia’s protection. The Tribunal considers the above to raise significant concerns regarding the applicant’s credibility as a witness, and considers it to demonstrate a willingness on her part to give incomplete, evasive, misleading and/or false responses to clear and direct questions put to her by the Tribunal.
The applicant was not put on notice that the Tribunal had already determined in her cousin’s case that her cousin was not a truthful and reliable witness by reference to the same information that it put to the applicant. It can safely be assumed that the applicant was not aware of that decision, or the Tribunal hearing that preceded it, or she would have taken care not to make the same mistake that her cousin had.
If the Tribunal had explained to the applicant, at the hearing, that it had already found that the information in issue meant that her cousin should not be accepted as truthful and that the applicant needed to explain to the Tribunal why the same conclusion should not be reached in her case, the allowance of one day might have been sufficient. However, the Tribunal did not explain that to the applicant[25]. In the circumstances, in my view, the provision of a single day was not sufficient to permit the applicant to respond effectively. It was inevitable that she would want to discuss the circumstances with her cousin. The applicant needed time to consider what conclusion the Tribunal had already reached in relation to the same information in her cousin’s case and to attempt to distinguish her case. In the circumstances, the applicant reasonably needed more than one day and the Tribunal almost certainly knew that. The Tribunal decision in the applicant’s cousin’s case could not have been despatched prior to 6 September 2013 and it is doubtful whether the applicant’s cousin had received it by the time of the applicant’s hearing, let alone had the opportunity to discuss it with the applicant. In my view, the exercise of the Tribunal’s discretion under s.424AA(b)(iv) miscarried because the Tribunal allowed a clearly inadequate time for the applicant to consider and respond to the earlier and related decision of the Tribunal (which the Tribunal itself probably could not disclose and which the applicant needed to find out about from her cousin) and which impacted fundamentally upon her case.
[25] The Tribunal may reasonably have felt that s.336E and s.439 of the Migration Act prevented that disclosure
As the Full Federal Court stated in SZMCD v Minister for Immigration[26] failure to satisfy s.424AA may lead to the failure to satisfy s.424A(1) which is mandatory requirement[27]:
[26] [2009] FCAFC 46
[27] at [74] and [77]
The first question in this appeal is whether non-compliance by the Tribunal with the provisions of s.424AA (in the present case, by allegedly failing to do that which was required by s.424AA having chosen to go down the path of engaging s.424AA) also constitutes jurisdictional error.
…
The immediate effect of a failure properly to comply with s.424AA is that the Tribunal will have purported to exercise a procedural discretion but will have in fact failed to do so in the manner required by the statute. The relevant sections when read together in their context suggest that the overriding obligation to provide the applicant with clear particulars of relevant information subsists and will be required to be discharged by other means (ie through s.424A(1)).
The effect of the above is that if the Court holds that the Tribunal has not complied with s.424AA(b)(iv) when it chose the s.424AA path, then the Tribunal would have made jurisdictional error as it did not comply with s.424A(1) by giving the applicant the adverse information in writing.
Because the Tribunal’s exercise of discretion under s.424AA(b)(iv) miscarried, it breached that section and hence committed jurisdictional error. It follows that the applicant should receive the relief she seeks in the application.
It is not strictly necessary to deal with the other grounds of review. In general terms, however, I agree with the Minister’s submissions in relation to Ground 3.
This ground conflates several grounds of review. It contends that the Tribunal was unreasonable in the Wednesbury sense in relation to the “dance incident” and the “hospital incident”. Essentially, the Tribunal rejected these claims on the basis of comprehensive adverse credibility findings[28]. These findings were open to the Tribunal for the reasons it gives. The Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence[29]. The Tribunal’s conclusion about credibility cannot be said to be so unreasonable that no reasonable person could have come to it[30]. Nor does it lack “an evident and intelligible justification”[31].
[28] CB 144-145:[39], [45]
[29] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[30] Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223
[31] Minister for Immigration v Li [2013] HCA 18 at [76]
This ground also asserts that the Tribunal “drew adverse inferences on credibility” which were based on “pure speculation”. To the extent that this ground asserts a “no evidence” ground of review, the Minister submits that it should be rejected. I agree. The Tribunal comprehensively set out the applicant’s claims and the evidence that it deemed relevant[32]. The Tribunal has clearly undertaken its role of assessing and attributing weight to the evidence before it. Accordingly, there is no basis for any contention there was “an actual absence of any foundation in fact” for the Tribunal’s findings[33].
[32] CB 138-139:[3]-[8]
[33] SZAPC v Minister for Immigration [2005] FCA 995 at [57]
This ground also contends that the Tribunal’s approach was “bordering on” apprehended bias. An allegation of bias is one that must be clearly made and distinctly proved[34]. The Tribunal’s approach in respect of this ground was not such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have bought an impartial mind to bear on the decision[35]. That is because the Tribunal disclosed (albeit not with sufficient clarity and not with enough time being allowed for a response) the issue from which pre-judgement would arguably flow. Had the Tribunal not disclosed at all the issue arising from the applicant’s cousin’s case, however, an apprehension of bias would probably have been established.
[34] Minister for Immigration v Jia (2001) 178 ALR 421 at [69]; SBBS vMinister for Immigration (2002) 194 ALR 749
[35] Webb v R (1994) 181 CLR 41 at 70-71; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-45; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]
Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously[36]. As in this case, the requirements of procedural fairness will often require that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question.
[36] Ex parte H (2001) 179 ALR 425 at [30]

Ground 4

This ground contends that the applicant was denied procedural fairness because the Tribunal asked the applicant’s cousin about the applicant’s claims and drew adverse inferences from the applicant’s cousin’s answers (given at the applicant’s cousin’s separate Tribunal hearing, before the same member, held on 5 September 2013). The relevant parts of the evidence are referred to in the Tribunal’s reasons and reproduced in the hearing transcript[37]. This ground also now contends that the Tribunal took irrelevant considerations into account.
[37] CB 139:[11] and pages 53-55 of the transcript of the applicant’s cousin’s Tribunal hearing annexed to the affidavit filed on 17 March 2014
There is nothing apparent on the face of the Tribunal’s decision to indicate that it considered answers given by the applicant’s cousin as relating directly to the applicant’s claims for protection or the applicant’s credibility when making its decision: but there was an indirect connection through the common information relied upon by the Tribunal to reject both applications. Accordingly, there is a question whether the Tribunal disclosed all information that was “the reason, or a part of the reason, for affirming the decision that is under review”. The evidence given by the applicant’s cousin was not such information and did not need to be put to the applicant[38]. However, in the applicant’s cousin’s case, the Tribunal had reached an adverse credibility conclusion based upon the same information as it put to the applicant. In order to ensure a fair hearing the Tribunal needed to do more than just give the applicant the opportunity to comment on the information. The Tribunal also needed to give the applicant the opportunity to attempt to distinguish her case from that of her cousin[39].
[38] Migration Act, s.424A(1)(a)
[39] Migration Act, s.425
In my opinion, the Tribunal did not do enough at the hearing to ensure that the applicant understood that the review would turn on her credibility in circumstances where the credibility of her cousin had already been rejected. How the Tribunal could meet that obligation while maintaining the confidentiality of the applicant’s cousin’s review would have been problematic but not impossible. In my opinion, there was a breach of s.425 of the Migration Act.
Ground 5 asserts actual as well as apprehended bias[40].
[40] Although in the applicant’s written submissions it is stated that only Grounds 2-4 were pressed, this ground was argued orally
An allegation of bias is one that must be clearly made and distinctly proved[41]. I have dealt with that contention above at [29] in relation to Ground 3. Although the applicant’s claim is clearly arguable, the Tribunal’s approach was not, in my view, such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision[42].
[41] Minister for Immigration v Jia (2001) 178 ALR 421 at [69]; SBBS vMinister for Immigration (2002) 194 ALR 749
[42] Webb v R (1994) 181 CLR 41 at 70-71; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-45; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]
As I put to the applicant’s solicitor during oral argument, the available evidence in this case cannot, in my view, support a claim of actual bias. The real question is whether a fair minded observer, aware of the relevant facts, might apprehend that the presiding member would not bring an impartial mind to bear on the applicant’s review. The mere fact that the Tribunal made a decision in the applicant’s case in one (albeit important) respect similar to its decision in the case of the applicant’s cousin would not support such an apprehension. Similar cases often call for similar conclusions. The fact that the Tribunal at the hearing conducted in the case of the applicant’s cousin asked questions about the applicant’s personal circumstances does not support an apprehension of bias either. As I have already noted, the position would have been different if the Tribunal had been silent on the issue in this case.
The concern of the Tribunal in both cases was that the applicant and her cousin had not been truthful in respect of their relationship to each other. This included their migration history. The Tribunal was entitled to put questions to the applicant’s cousin at her hearing in the terms that it did. Further, the Tribunal was entitled to test the credibility of the applicant at the hearing of her review by asking similar questions. In some senses, this might be seen as laying a trap for the applicant but the applicant could avoid the trap by telling the truth. No doubt, if the applicant had been aware of the outcome of her cousin’s case, she would have taken more care to do so. She was not aware of that outcome, however, and the Tribunal’s haste to conclude the review before the applicant had a fair opportunity to be informed (presumably by her cousin) of that outcome and to deal with the consequences for her own case explain why an apprehension of bias has been asserted. However, if a fair process had been followed in that respect the Tribunal would still have been entitled to reach the same conclusions on the review and there would have been nothing to support an apprehension of bias. That established unfairness vitiates the Tribunal decision and the general feeling of unease surrounding it is not sufficient to demonstrate apprehended bias.
I will hear the parties as to costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 5 September 2014