SZUCD v Minister for Immigration - [2017] FCCA 421

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 421

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether actual or apprehended bias on the part of the Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.91R(3), 425(1)

First Applicant:

SZUCD

Second Applicant:

SZUCE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 762 of 2014

Judgment of:

Judge Barnes

Hearing dates:

11 September 2015

16 November 2015

Delivered at:

Sydney

Delivered on:

8 March 2017

REPRESENTATION

The First Applicant:

In person

Solicitors for the Respondents:

DLA Piper

ORDERS

A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 24 February 2014.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 21 August 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 762 of 2014

SZUCD

First Applicant

SZUCE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 25 February 2014 affirming a decision of a delegate of the First Respondent not to grant protection visas to the Applicants.
The Applicants are mother and son and citizens of China. The First Applicant (referred to for convenience as the Applicant) arrived in Australia in February 2008 as the holder of a student visa. She applied for protection in September 2012. Her son, who was born in Australia, was included in the application as a member of her family unit. The application was refused and the Applicants sought review by the Tribunal.
The Applicants’ claims were set out in a statement accompanying the protection visa application. In essence, the Applicant claimed that she feared…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 421
Decision Date: 8 March 2017

CaseChat Overview and Summary

This decision concerned an application for judicial review brought by SZUCD against the Minister for Immigration. The applicant sought to challenge a decision made by the Administrative Appeals Tribunal. The matter came before Judge Barnes of the Federal Court of Australia.

The central legal issue before the Court was whether the conduct of the Tribunal member during the hearing gave rise to a reasonable apprehension of bias. This required the Court to consider the appropriate standard for assessing bias in the context of an inquisitorial tribunal, particularly in relation to the testing of an applicant's claims and evidence.

Judge Barnes, referencing previous High Court authority and other Federal Court decisions, affirmed that while occasional displays of impatience or irritation do not automatically establish disqualifying bias, they are not irrelevant. The Court emphasised that the entirety of the circumstances must be considered. His Honour noted that the Tribunal is entitled to test claims and that the stage at which statements are made and any inherent probabilities are relevant. However, the Court cautioned against using the standards applicable to a judge in a public adversarial court as a comparator for the conduct of an inquisitorial tribunal member. The Court highlighted that the language used by the Tribunal to test claims, such as asserting disbelief or making definitive statements about cultural behaviour, could be a factor in assessing apprehension of bias. The proper test is whether a reasonable, informed lay person would apprehend that the Tribunal might not bring an impartial mind to the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Relevantly, Robertson J also observed that the Tribunal was entitled to test the claims relied on (at [76]), that it was necessary to consider at what stage of the hearing impugned statements were made and any “inherent probabilities or improbabilities to which the Tribunal was reacting” (at [82]). However, as his Honour stated (at [84]) it is a:… requirement that, until the time of decision, what the Tribunal says and does must not give rise to a reasonable apprehension of bias as that test has been explained, in relation to the Tribunal, by the High Court in Re Refugee Review Tribunal; Ex parte H” (emphasis added). Moreover, insofar as the First Respondent relied on VFAB at [81], Robertson J (with whom Allsop CJ agreed) stated in SZRUI at [91]-[93] that: … 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.In my opinion, one of the matters to be taken into account by a properly informed lay person is that there is other language available to test, vigorously or otherwise, the claims or evidence of an applicant for refugee status than by saying “I don’t believe it” or “I can’t believe it” while asserting in definite terms how those in a foreign culture would behave.Also to be taken into account as ascribed to the properly informed lay person, in my opinion, is that the consequence of the proceedings being inquisitorial makes the circumstances quite different to civil litigation before a judge, where the proceedings are almost invariably in public, there are parties representing their own interests and those parties are often represented by lawyers. This means that questioning and vigorous questioning by the Tribunal is not to be measured against a standard appropriate to a judge presiding over a public hearing in a court but it also means that what may be taken as vigorous testing by a judge of submissions by counsel in a court is not a valid point of comparison when considering what is said and done by a Tribunal member in relation to a claimant’s statements or other material. Indeed, in my opinion, it is liable to be a distraction to use as a comparator what in a court setting would not give rise to a reasonable apprehension of bias.

Ratio Decidendi

Legal Principle Established

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