SZUXZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 225
•5 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZUXZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 225
File number(s): SYG 1456 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 5 November 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of second respondent (Tribunal) made on remittal affirming decision not to grant Protection visa – Tribunal member when constituting the Refugee Review Tribunal (RRT) affirmed decision not to grant a Protection visa on the ground it was reasonable for the applicant to relocate – the RRT’s decision was set aside by consent on the ground that the RRT failed to consider whether it was reasonable for the applicant to relocate having regard to generalised and sectarian violence – Tribunal member again affirmed the delegate’s decision on the ground it was reasonable for the applicant to relocate – Tribunal member made substantially the same findings as he made when Tribunal member constituted the RRT except Tribunal member considered the question the RRT failed to consider – whether in these circumstances the Tribunal made its decision in circumstances giving rise to a reasonable apprehension of bias – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476, 91R(1)(b)
Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
FKP17 & Ors v Minister for Immigration & Anor [2018] FCCA 2053
Helow v Secretary of State for the Home Department [2008] 1 WLR 2416
Johnson v Johnson [2000] HCA 48
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100
MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191
MZZXM v Minister for Immigration and Border Protection [2016] FCA 405
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZOAF v Minister for Immigration and Citizenship [2010] FCA 431
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZSNU v Minister for Immigration & Anor [2013] FCCA 1219
Vakauta v Kelly (1988) 13 NSWLR 502
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 11 May 2021 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Immi House Legal Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 1456 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZUXZ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,853.
THE COURT NOTES THAT:
3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) the applicant claims the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa) in circumstances that gave rise to a reasonable apprehension of bias.
To be in a position to determine this ground, it will be necessary to identify the applicant’s claims for protection, and the course of the applicant’s application for a Protection visa. As will appear later, the central element of the applicant’s claim is that the member who constituted the Tribunal also constituted the Refugee Review Tribunal (RRT) that had previously affirmed the delegate’s decision not to grant the applicant a Protection visa.
CLAIMS FOR PROTECTION AND COURSE OF APPLICATION
The applicant is a citizen of Lebanon. He arrived in Australia in 2011 holding a student visa. The applicant unsuccessfully applied for another student visa, and he unsuccessfully applied for merits review of that decision.
In June 2013 the applicant applied for a Protection visa. The applicant set out his claims for protection in a statement that formed part of his application for a Protection visa.[1] Those claims may be summarised as follows:
[1] CB46-48
(a)The applicant fears that if he returns to Lebanon he will be killed, tortured, or seriously injured because he was an opponent of the Salafi group, which has controlled the lives of people who live in the area the applicant has lived. That area is “alkobe”, in Tripoli.
(b)Since 2005 the applicant’s neighbourhood of “alkobe” has seen an increase in the number of Islamic extremists who have been recruiting young men to join what they call “the true Islamic movement”.
(c)The applicant was a member of the “Al Tawhuid movement” (IUM) in Tripoli headed by Sheikh Bilal Shaaban.[2] It is a moderate Islamic movement which has been targeted by the Salafi group, and by the “future party movement” who have been calling for the IUM to be removed from North Lebanon. The Salafi group have killed many members of the IUM, and many members of the IUM have survived assassination attempts by members of the Salafi group.
(d)The applicant was assaulted on a few occasions outside his home by local members of the Salafi group, and the Salafi group vandalised the applicant’s car. The applicant could not report these incidents to the police because the Salafi group had the backing of the very powerful intelligence unit of the police.
(e)In 2009 the Salafi group had all of the Tripoli population under its control. The Salafi group attacked their opponents, and many members of the IUM were forced to join the Salafi group or leave Lebanon. Those members who remained had their homes sprayed with bullets.
(f)In 2009 a group belonging to the local Salafi group approached the applicant to join them, because they were on a mission to recruit as many doctors and nurses in Lebanon for well-paid work in their organisation. The applicant refused, because he already had a job in a hospital, and he was happy with his employment. The members of the Salafi group threatened the applicant by telling him he should take notice of what had happened to his friends. The applicant was punched and kicked, a knife was placed on the applicant’s neck, and he was told “that is for next time”.
(g)After the incident the applicant could not go to work for fear of his life. He did not leave his home without being accompanied by his father. Before the applicant left Lebanon he felt the Salafi group was watching his every move.
(h)Since his arrival in Australia the applicant’s parents have been intimidated, and the applicant’s father would attend work only when accompanied by his fellow workers.
(i)In 2012 the applicant’s good friend and fellow member of the IUM group was shot dead outside the IUM headquarters. The applicant’s father has been warning the applicant not to return home.
[2] As is made apparent by the Tribunal in its two sets of reasons, the “Al Tawhuid movement” is a reference to the Harakat al-Tawhid al-Islami, also known as the “Islamic Unification Movement”.
In February 2014 the delegate refused to grant the applicant a Protection visa. The applicant applied to the RRT for review of the delegate’s decision, and, on 22 July 2014 the RRT affirmed the delegate’s decision (RRT decision).[3] The RRT made the following findings:
(a)The applicant was introduced to the IUM by a particular Sheikh, who encouraged the applicant to attend a mosque and take a more active role in religion; the applicant attended a mosque associated with the IUM, and undertook to teach the Koran to children; the applicant did not engage in any other activities relating to the IUM; and although the applicant was not a prominent or high ranking member of the IUM, he was known in his area as someone affiliated with the IUM.[4]
(b)The IUM is one of the most important radical Sunni movements in Tripoli, having been formed in 1982 by its leader, Sheikh Sa’id Sha’ban, who was extremely vociferous in opposing the actions of Syria and the Lebanese Communist Party during the 1980s; the IUM maintained a presence in Tripoli, confining itself to social and religious activities; in 2005, following the withdrawal of Syrian forces from Lebanon, Hezbollah intensified its contacts with other Assad-backed groups in Lebanon to push back against the newly empowered anti-Assad Sunni forces, and it gathered under one umbrella pro-Assad Sunni groups, which included the IUM; that in turn, antagonised the anti-Assad March 14 Coalition, which was led by the Future Movement.[5]
(c)In 2009 members of the Salafi group verbally harassed the applicant, vandalised the applicant’s car, threatened the applicant at knife point, and targeted the applicant because they had an interest in recruiting the applicant because they believed the applicant, as a qualified nurse, could be of use to them.[6]
(d)The verbal harassment and damage to the applicant’s car did not amount to serious harm; those who threatened the applicant in 2009 had behaved in an intimidatory manner, but did not seriously intend to carry out their threats; and, for these reasons, at the time the applicant left Lebanon the Salafi group in the applicant’s area did not have a genuine, ongoing interest in the applicant.[7]
(e)If the applicant feared harm from the Salafi group in his area the applicant would have applied for a protection visa soon after he arrived in Australia.[8]
(f)The situation in Tripoli, however, had changed since the applicant left Lebanon.[9] Given the applicant is a member of the IUM, and he was known in his locality as someone who was affiliated with the IUM, and had been targeted in the past for that reason, it is highly likely that if the applicant were to return to Lebanon he would be viewed as a member of the IUM; and, for that reason, the chance of the applicant facing serious harm at the hands of the Salafi group because of his membership of the IUM cannot be ruled out as remote.[10]
[3] CB174-181
[4] CB176-177, [13]
[5] CB177, [14]
[6] CB177, [15]
[7] CB178, [16]
[8] CB178, [17]
[9] CB178, [18]
[10] CB178-179, [19]
Having made these findings, the RRT considered the question of relocation. The RRT was satisfied it would be reasonable and practicable for the applicant to safely relocate to Beirut.[11] The RRT relied on findings that it did not accept that Tripoli-based Salafi groups would pursue the applicant in Beirut; the applicant is young;[12] the applicant is educated, holding qualifications and having worked as a nurse; and the applicant is resilient, as demonstrated by his travelling to, and studying and working in, Australia.[13] The RRT also relied on the following findings:[14]
The Tribunal accepts that the southern suburbs of Beirut have been hit by a number of explosions and a rocket attack causing casualties and property damage. These sporadic attacks appear to have occurred near an Iranian cultural centre, the Iranian Embassy, a checkpoint and apartment buildings accommodating top Hezbollah officers and Hezbollah facilities. Having considered all the applicant's circumstances, the Tribunal is not satisfied that the general security situation in Beirut is so bad or severe that it would expose the applicant to a real chance of persecution for a Convention reason now or in the reasonably foreseeable future.
[11] CB180, [25]
[12] CB179-180, [21]-[24]
[13] CB180
[14] CB180, [24]
The applicant applied to this Court for judicial review of the RRT’s decision. On 30 May 2017 this Court set aside the RRT’s decision, and directed the Tribunal to reconsider the applicant’s application for review. The Court made those orders on the basis of what the Minister conceded was a jurisdictional error, and the orders his Honour made recorded the jurisdictional error the Minister conceded the RRT had made:[15]
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent, in assessing whether it would be reasonable for the applicant to relocate, committed a jurisdictional error of the kind identified in MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191. In particular, the second respondent failed to consider whether it would be reasonable for the applicant to relocate given the generalised and sectarian violence in Lebanon.
[15] The order is annexed to the affidavit of A Youssef made on 8 October 2020
The jurisdictional error the Federal Court in MZYQU found the decision-maker made in that case was that the decision maker assessed the reasonableness of relocation only by reference to whether the visa applicant faced a real chance of “serious harm as required by s 91R(1)(b)” of the Act, and did not assess reasonableness by reference to whether the visa applicant wold face a risk of harm that was not “serious harm as required by s 91R(1)(b)” of the Act. Thus, it appears that the jurisdictional error the Minister conceded the RRT made when considering relocation, and the jurisdictional error this Court accepted the Tribunal made when it set aside the RRT’s decision on the basis of the Minister’s concession, is that the Tribunal assessed the reasonableness of the applicant’s relocation to Beirut by reference to whether there was a real risk the applicant would suffer harm that would amount to persecution, or to serious harm, and the Tribunal did not consider the reasonableness of the applicant’s relocating to Beirut by reference to whether the applicant faced a risk of some harm other than harm that would amount to persecution or serious harm.
By letter dated 20 June 2017 the Tribunal informed the applicant that this Court had remitted the applicant’s application for review to the Tribunal, noting that the matter will be “re-allocated to a Member”.[16] The letter stated that the member may do any one or more of a number of matters the letter identifies, namely, seek further information, seek the applicant’s response to particular information, invite the applicant to attend a hearing, or make a decision. The matter was remitted to the member who made the first Tribunal decision.
[16] CB184
By letter dated 26 October 2017 the Tribunal invited the applicant to attend a hearing before it on 29 November 2017.[17] By letter dated 20 November 2017 (which the Tribunal received on 22 November 2017) the applicant informed the Tribunal he would not be attending the hearing.[18] The applicant stated (errors in original):
Ever since the advise of the said interview I have been under a lt of stress and depression having to remmeber painfull events and made even worse by current events in lebanon and could not health wise talk about it or re visit such very traumatic period in my life and currently seeking help from apprpriat health professionals, and would instead rely on the following documents I am submitting in support of my Case.
1.Smart Travel Advice issued by the Australian Department of foreign affair and trade dated 11/11/2017 Current outlining the facts that all of Lebanon is not safe.
2.Bundles of various Media reports outlining the danger Lebanon is currently facing as fallout of the Prime Minister Saad El Harriri resignation and also detailing how the country is Run by various Millitias.
[17] CB187
[18] CB201
There is in evidence a recording of a telephone call made by an officer of the Tribunal to the applicant in which the applicant confirmed he will not attend the hearing.
TRIBUNAL’S REASONS
The Tribunal does not refer to the RRT decision, or to any findings contained in the RRT decision; the Tribunal’s reasons read as if they constitute a fresh consideration of the applicant’s application for review. The Tribunal’s reasons, however, replicate word for word large sections of the RRT’s reasons for decision. The extent of the replication is identified in a table counsel for the applicant prepared.[19] In particular, the Tribunal repeats the findings contained in the RRT decision. Thus, the Tribunal found:
(a)The applicant was introduced to the IUM by a particular Sheikh, who encouraged the applicant to attend a mosque and take a more active role in religion; the applicant attended a mosque associated with the IUM, and undertook to teach the Koran to children; the applicant did not engage in any other activities relating to the IUM; and although the applicant was not a prominent or high ranking member of the IUM, he was known in his area as someone affiliated with the IUM.[20]
(b)The IUM is one of the most important radical Sunni movements in Tripoli, having been formed in 1982 by its leader, Sheikh Sa’id Sha’ban, who was extremely vociferous in opposing the actions of Syria and the Lebanese Communist Party during the 1980s; the IUM maintained a presence in Tripoli, confining itself to social and religious activities; in 2005, following the withdrawal of Syrian forces from Lebanon, Hezbollah intensified its contacts with other Assad-backed groups in Lebanon to push back against the newly empowered anti-Assad Sunni forces, and it gathered under one umbrella pro-Assad Sunni groups, which included the IUM; that in turn, antagonised the anti-Assad March 14 Coalition, which was led by the Future Movement.[21]
(c)In 2009 members of the Salafi group verbally harassed the applicant, vandalised the applicant’s car, threatened the applicant at knife point, and targeted the applicant because they had an interest in recruiting the applicant because they believed the applicant, as a qualified nurse, could be of use to them.[22]
(d)The verbal harassment and damage to the applicant’s car did not amount to serious harm; those who threatened the applicant in 2009 had behaved in an intimidatory manner, but did not seriously intend to carry out their threats; and, for these reasons, at the time the applicant left Lebanon the Salafi group in the applicant’s area did not have a genuine, ongoing interest in the applicant.[23]
(e)If the applicant feared harm from the Salafi group in his area the applicant would have applied for a protection visa soon after he arrived in Australia.[24]
(f)Given the applicant is a member of the IUM, and he was known in his locality as someone who was affiliated with the IUM, and had been targeted in the past for that reason, it is highly likely that if the applicant were to return to Lebanon he would be viewed as a member of the IUM; and, for that reason, the chance of the applicant facing serious harm at the hands of the Salafi group because of his membership of the IUM cannot be ruled out as remote.[25]
[19] Marked “MFI1”
[20] CB266-267, [23], [24]
[21] CB267, [25]
[22] CB267, [26]
[23] CB267, [27], [28]
[24] CB268, [29]
[25] CB268-269, [32]
The Tribunal made a slightly different finding in relation to the situation in Tripoli than the finding made in the RRT decision. The Tribunal found the “situation in Tripoli remains fluid”.[26] The Tribunal quoted the following passage from DFAT’s 2017 country information report relating to Lebanon:[27]
In late 2014, the traditionally opposed Future Movement (Sunni) and Hizballah (Shi’a) commenced dialogue to lower tensions exacerbated by the conflict in Syria. That process has been successful in reducing the risk and incidence of violence but has not resolved the underlying causes of tension.
[26] CB268, [30]
[27] CB268, [30]
Having made these findings the Tribunal considered the question of relocation, and it concluded that, on the basis of the evidence before it, and having regard to the applicant’s circumstances overall, it “considers it reasonable, in the sense of practical, for the applicant to relocate to Beirut”.[28] The Tribunal repeated findings the RRT made on this question. The Tribunal did not accept that Tripoli-based Salafi groups would pursue the applicant in Beirut;[29] the applicant is young, and educated, holding qualifications and having worked as a nurse; and the applicant is resilient, as demonstrated by his travelling to, and studying and working in Australia.[30] The Tribunal, however, considered material, and made findings in relation to matters the RRT did not address. In particular, the Tribunal addressed the concerns the applicant identified in his letter “of 22 November 2017” “in relation to the current situation in Lebanon”.
[28] CB271, [44]
[29] CB268-270, [34]-[37]
[30] CB271, [43]
The Tribunal identified the material to which the applicant referred in that letter. The Tribunal addressed the matters raised by the applicant in his letter by referring to DFAT’s 2017 country information report in relation to Lebanon. The Tribunal referred to a number of assessments contained in the DFAT report. The Tribunal noted that DFAT had assessed the security situation in Lebanon as being largely stable, but unpredictable; instability is greatest in areas where ISIL and Jabhat Fatah al-Sham are located, particularly around the north-eastern border; there was no information in the DFAT report to suggest Beirut generally is unstable; and although there is a report of a suicide bombing in November 2015 that killed 43 people and injured 239, there was no information in the sources the Tribunal consulted, including media reports, that suggest that similar bombings have occurred in any area of Beirut since November 2015.[31] The Tribunal also noted that there was no other information before it to indicate that predictions of instability following the resignation of Saad Hariri in November 2017 have materialised or that the situation in Beirut has changed since October 2017.[32]
[31] CB270, [39], [40]
[32] CB270, [39]
On the basis of this information, the Tribunal found it was not satisfied that the general security situation in Beirut is so bad that it would expose the applicant to a real chance of persecution for a Convention reason, now or in the reasonably foreseeable future. The Tribunal was satisfied there is no real chance the applicant will face serious harm for a Convention reason by anyone if the applicant were to internally relocate; and it was not satisfied the applicant will suffer significant harm arising from general violence, tension and instability if he were to relocate to Beirut.[33] The Tribunal also made the following findings:[34]
DFAT has assessed that any individual, irrespective of their religious or political affiliation, could internally relocate to Beirut, dependent on their personal circumstances, such as financial independence and connections within Beirut. As already noted, the last bombing in Beirut occurred in a predominantly Shi’a suburb in 2015. There was no indication in DFAT’s 2017 country information report to lend support to the view that generalised and sectarian violence in Beirut is at a level that would render relocation unreasonable. The applicant has not provided any further evidence which demonstrates the security situation renders relocation unreasonable and there is no other evidence to that effect. Considering the Tribunal's findings on generalised violence above, the Tribunal does not accept the level of generalised or sectarian violence in Beirut makes it unreasonable for the applicant to relocate to that city.
[33] CB270, [41]
[34] CB270-271, [42]
Finally, the Tribunal referred to the applicant’s statement in his letter dated 20 November 2017 that he was under stress, depressed, and was seeking help from health professionals. The Tribunal noted the applicant did not provide to the Tribunal any other information, including medical reports, in support of these claims that could enable the Tribunal to form a view in relation to the applicant’s state of health. The Tribunal, therefore, was not satisfied the applicant has any physical or psychological illness that could be considered in assessing the reasonableness of the applicant’s relocation.[35]
[35] CB271, [43]
In light of these findings, the Tribunal concluded the applicant did not satisfy the criteria for protection provided for by s 36(2)(a) and s 36(2)(aa) of the Act.
GROUND OF APPLICATION
The applicant relies on the ground of application contained in the amended application.
The Tribunal made a jurisdictional error on the ground of apprehended bias.
a. The Tribunal, constituted by . . . made a decision on 30 April 2018 (second decision);
b. The Tribunal made the second decision on remittal from the Federal Circuit Court by orders dated 30 May 2017;
c. The Tribunal, also constituted by . . . had previously purported to make a decision in the same matter on 22 July 2014 (first decision);
d. The first decision had been quashed by the Federal Circuit Court on the basis that the Tribunal had not properly had regard to generalised violence in the city concerned when assessing the reasonableness of relocation as in MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 (MZYQU) at [58]-[63];
e. The Tribunal in the first decision had made some reference at paragraph 24 to the “general security situation in” the city concerned but tied its analysis to “persecution for a Convention reason”, which must have led to jurisdictional error in the MZYQU sense;
f. The Tribunal in the second decision found at paragraph 42 that “the Tribunal does not accept the level of generalised or sectarian violence in [the city concerned] makes it unreasonable for the applicant to relocate to that city”, which the Applicant accepts was sufficient to avoid jurisdictional error in the MZYQU sense;
g. The Tribunal in the first decision had to some extent grappled with the generalised violence in the city concerned. Relatively little more analysis was needed by the Tribunal to avoid jurisdictional error in the MZYQU sense, as the second decision demonstrates by adopting much of the previous decision verbatim;
h. In these circumstances, a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the question of relocation or, in other words, might reasonably apprehend that the same member might favour reaching the same conclusion on relocation as he had previously, with little adjustment in expression and analysis: Michael Wilson and Partners v Nicholls [2011] HCA 48; 244 CLR 427 (Wilson) at [31].
Applicant’s submissions
In his counsel’s written submissions, the applicant referred to the general principles relating to the circumstances in which a judge or a non-judicial decision-maker may act in a way such as to give rise to a reasonable apprehension of bias; that is, principles that identify the circumstances in which “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”.[36] The applicant then referred[37] to the following passage from the judgment of Gordon and Nettle JJ in CNY17 v Minister for Immigration and Border Protection:[38]
The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker's impartiality? … Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?
In applying the test, “it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made”. It is also necessary to consider “what is involved in making the decision and the identity of the decision‑maker”. This draws attention to the fact that the test must recognise “differences between court proceedings and other kinds of decision-making”. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair‑minded lay observer has “a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]”.
[36] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48, at [31], quoted in Submissions for the Applicant, at [11]
[37] Submissions for the Applicant, at [13]
[38] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [57], [58] (footnotes omitted)
The applicant also referred to the following passage from the judgment of Edelman J:[39]
The notion of independence and impartiality is not limited to prejudgment of the issue. It is a “recognition of human nature” and “human frailty”. It can include any other “preponderating disposition or tendency” and can arise by matters that create emotions of sufficient strength to sway opinion: “affection or enmity”, “fear, hatred or love”.
. . .
Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker's bias and using comments in the reasons for judgment by the decision maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.
[39] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [132], [135] (footnotes omitted)
Further, the applicant referred to two Federal Court judgments which considered claims of apprehended bias by a decision-maker in relation to a decision the decision-maker made on remittal of an application for review of a delegate’s decision not to grant a protection visa which the decision-maker had previously decided adversely to the visa applicant.[40]
[40] Submissions for the Applicant, at [16]-[26], discussing MZZXM v Minister for Immigration and Border Protection [2016] FCA 405, and MZAEU vMinister for Immigration and Border Protection [2016] FCAFC 100
Having referred to these authorities, the applicant submitted as follows:
(a)That which might lead a fair-minded observer to apprehend that the Tribunal might have decided the application for review other than on its legal and factual merits is that the member who constituted that Tribunal had previously decided the application for review when that member constituted the RRT, and the decision was quashed. More particularly, the member’s previous decision having been quashed might lead a fair-minded observer to apprehend that the Tribunal member “would not be pleased to have a decision quashed for not properly considering a certain matter”.[41]
(b)The manner in which the fair-minded observer might apprehend the Tribunal might deviate from its obligation to decide the application for review other than on its legal and factual merits is that the Tribunal “might have been disposed to defend the decision so quashed and downplay the error by making minimal changes and producing the same outcome”; and that the Tribunal “might desire to show that his or her previous error was of no consequence”.[42]
(c)What is submitted in (b) is borne out from the Tribunal’s reasons, and in particular “their heavy overlap with the terms of the first decision”. The Tribunal “has reproduced almost all of the original decision and inserted a few paragraphs regarding updated information”; and then “stated a conclusion in terms sufficient to avoid repeating a jurisdictional error in the MZYQU sense”.[43]
[41] Submissions for the Applicant, at [35]
[42] Submissions for the Applicant, at [36]
[43] Submissions for the Applicant, at [38]
Minister’s submissions
In his counsel’s written submissions the Minister submits as follows:
(a)Whether the Tribunal made its decision in circumstances giving rise to a reasonable apprehension of bias must be determined in light of the totality of the circumstances that exist at the time the question arises.[44]
(b)There is no evidence the Tribunal member was “displeased” about his earlier decision having been set aside.
(c)That the Tribunal’s decision replicates findings contained in the RRT decision might suggest the Tribunal was predisposed to make the same findings, subject to being presented with any information, to come to the same findings, that would not be sufficient to establish apprehension of bias; what must be shown is that a fair-minded observer might suppose the Tribunal’s mind might not be open to persuasion.[45]
[44] Submissions of the First Respondent, at [15]
[45] Submissions of the First Respondent, at [17]
Principles
Before I consider the competing submissions, it will be necessary to refer to some additional principles. The first relate to the assumed attributes of the fair-minded observer;[46] for it is by reference to the fair-minded observer that the question of apprehension of bias is to be determined.
[46] The expression “fair-minded lay observer” is also used
In the context of claimed apprehended bias by judges,[47] it has been said that a fair-minded observer is taken to be reasonable;[48] the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”;[49] while the fair-minded 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 of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”, it being understood that the “rules and conventions governing such practice are not frozen in time”, that those rules and conventions develop “to take account of the exigencies of modern litigation”, and that “modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”;[50] the fair-minded observer “is no more entitled to make snap judgments than the person under observation”;[51] the fair-minded observer “is neither complacent nor unduly sensitive or suspicious”;[52] and that the fair-minded observer “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”.[53]
[47] In this and the following paragraph I repeat what I said in FKP17 & Ors v Minister for Immigration & Anor [2018] FCCA 2053, at [23], [24]
[48] Johnson v Johnson [2000] HCA 48, at [12]
[49] Johnson v Johnson [2000] HCA 48, at [12]. The quoted passage is from the judgment of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502, at page 527
[50] Johnson v Johnson [2000] HCA 48, at [13]
[51] Johnson v Johnson [2000] HCA 48, at [14]
[52] Johnson v Johnson [2000] HCA 48, at [53]
[53] Johnson v Johnson [2000] HCA 48, at [53]
A useful statement of the attributes of the fair-minded observer was given by Lord Hope of Craighead in Helow v Secretary of State for the Home Department:[54]
The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. ... Her approach must not be confused with that of the person who has brought the complaint. ... The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. ...
Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
[54] Helow v Secretary of State for the Home Department [2008] 1 WLR 2418, at page 2422
A second set of principles are those that deal with the application to the Tribunal of principles relating to apprehension of bias.[55] Those principles have been held to apply to administrative tribunals in general,[56] including the Tribunal.[57] The practical operation of those principles, however, may operate differently when applied to a decision-maker that is not a court.[58] That means:[59]
[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.
[55] I here repeat what I said in SZSNU v Minister for Immigration & Anor [2013] FCCA 1219, at [27]-[30], and [32]-[34]
[56] See for example R v Commonwealth Conciliation and Arbitration Commission; Ex parte The 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 C.L.R. 243, at p. 258.”
[57] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
[58] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at 343-344 [4]
[59] 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:[60]
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.
[60] 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”.[61]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 for judgment of Allsop J (as his Honour then was) in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs:[62]
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.
[61] Re Minister for Immigration and Multicultural Affairs ; Ex parte Epeabaka (2001) 206 CLR 128, at 138 ([27])
[62] NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (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 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 fair-minded 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.
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.[63] 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”.[64] 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”.[65] 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”.[66] Fourth, “[o]ccasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias”.[67] 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:[68]
. . . 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 well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
[63] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
[64] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [24] being a quote from the reasons for judgment of Barker J in SZOAF v Minister for Immigration and Citizenship [2010] FCA 431, at [17]
[65] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [27]
[66] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [27]
[67] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [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
[68] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [33]
Determination
The starting point is identifying the matters on which a fair-minded observer should be taken to be aware in determining whether such observer might reasonably apprehend the Tribunal might not bring, or may not have brought, an impartial and unprejudiced mind to the determination of the applicant’s application for review:
(a)The applicant and the Minister agreed the RRT made a jurisdictional error, that jurisdictional error consisting of the RRT’s failure to consider a particular question, namely, whether it would be reasonable for the applicant to relocate given the generalised and sectarian violence in Lebanon.
(b)It is legally possible that a Tribunal member whose decision has been set aside by a court may reconsider his or her decision on remittal.
(c)After the RRT’s decision was set aside and remitted to the Tribunal, the applicant was invited to appear before the Tribunal to give evidence and present arguments. The applicant elected not to appear, but instead sent his letter dated 20 November 2017, together with information which the applicant in his letter submitted showed it was not safe to return to Lebanon.
(d)The applicant did not make any submissions to the Tribunal, and the applicant did not provide any information, that specifically addressed any of the findings the RRT had made.
(e)The Tribunal referred to the applicant’s letter dated 20 November 2017 and to the material the applicant provided to the Tribunal.
(f)The Tribunal addressed the very question the RRT had failed to address; and the Tribunal did so by reference to information that was not before the RRT.
I do not accept that a fair-minded observer might reasonably apprehend that the member who constituted the RRT might have been “displeased” at having his previous decision set aside; and that is because it is not apparent what state of mind “displeased” is intended to denote. Is it anger at the Minister having conceded an error the Tribunal member believes it did not make? Is it instead embarrassment at having made a mistake which is so apparent that the Minister conceded it was a mistake? It would be unreasonable to assume that a fair-minded observer might view the Tribunal member as being “displeased” when no secure meaning can be given to “displeased”.
Even if some meaning could be given to “displeased”, it is difficult to see how a fair-minded observer might reasonably apprehend that this might have prevented the Tribunal from bringing an impartial and unprejudiced mind to the determination of the applicant’s application for review. The asserted logical connection is that the fair-minded observer might have thought that the Tribunal member might have been disposed to defend his previous decision. That, however, does not make sense. The fair-minded observer should be assumed to have been aware that the RRT’s decision had been set aside; and that there was no decision for the Tribunal member to defend. The fair-minded observer should be taken to understand that, having been set aside, the Tribunal’s task was to determine the applicant’s application for review by deciding the question it failed to consider, and by determining any further evidence and argument the applicant might wish to provide or give to the Tribunal.
What the applicant appears to submit is that a fair-minded observer might reasonably think that, through obduracy or some similar attitude, the Tribunal member might have been inclined to repeat the error the Minister conceded the member made while constituting the RRT, believing he did not make an error, but to disguise the error the Minister conceded the RRT made. Alternatively, it may be the applicant submits the fair-minded observer might think that the Tribunal might have accepted it made an error, but nevertheless, through obduracy or some similar attitude, the Tribunal might have resolved not to decide the merits of the applicant’s case by considering the question it previously failed to consider, or any new information and arguments the applicant might submit to the Tribunal. In other words, it appears the applicant submits that a fair-minded observer might believe that the Tribunal member might have acted in bad faith, only because the member’s previous decision had been set aside.
Such a belief, however, would fall outside the set of beliefs it is reasonable to suppose a fair-minded observer would hold in assessing whether the Tribunal, in the circumstances of this case, made its decision in circumstances giving rise to a reasonable apprehension of bias. It assumes an assessment that would be made by a person who is unduly sensitive and suspicious, and by a person who is ignorant of the fact that Tribunal decisions are not uncommonly set aside by courts, and that decisions that are set aside may be remitted for redetermination by the member who constituted the Tribunal whose decision has been set aside.
I accept that a fair-minded observer might - indeed would - notice an obvious feature of the Tribunal’s reasons; and that is that they substantially repeat findings contained in the RRT decision. That, however, must be seen in light of the matters I identify in paragraph 33 of these reasons. The only jurisdictional error the Minister conceded, and this Court accepted, the RRT made, was the RRT’s failure to consider a particular issue, namely, whether it would be reasonable for the applicant to relocate given the generalised and sectarian violence in Lebanon. The Tribunal recognised that its function when again reviewing the applicant’s case was not limited to determining that question, but it extended to reconsidering the applicant’s application again. That is apparent from the Tribunal’s letter inviting the applicant to appear before the Tribunal to give evidence and make submissions. The applicant, however, did not take up the invitation; he limited himself to providing information relevant to the security situation in Lebanon as a whole.
In those circumstances, a fair-minded observer would not, from the fact that the Tribunal member made the same findings as he made in the RRT decision, consider that the Tribunal member was not open to being persuaded. The fair-minded observer would instead view the Tribunal member’s making the same findings as he made in the RRT decision to reflect the combination of two things: the Tribunal member had previously considered the matters that led to his making the findings contained in the RRT decision; and the applicant did not provide to the Tribunal any additional information, or make any submissions, the Tribunal member could have considered in determining whether to make different findings to those he had previously made. In other words, the fair-minded observer would not view the Tribunal member making the same findings he previously made as manifesting an unwillingness by him to be open to persuasion; and that is because the applicant did not put before the Tribunal any material or arguments in relation to the matters on which the Tribunal made findings that could have been considered by the Tribunal.
Finally, I do not accept the applicant’s characterisation of the Tribunal’s consideration of the question the Tribunal member failed to consider when he constituted the RRT as a “minimal change” to the RRT decision. It incorrectly implies that, when considering whether it would be reasonable for the applicant to relocate given the generalised and sectarian violence in Lebanon, the Tribunal ought to have considered in its reasons something in addition to that which it did consider. The applicant, however, has not identified the material the Tribunal ought to have considered, but failed to consider. The Tribunal referred to, and relied on, the DFAT country information report for 2017; and it noted the applicant “has not provided any further evidence which demonstrates the security situation renders relocation unreasonable and there is no other evidence to that effect”.[69] The applicant has not identified any information in the 2017 DFAT report, or other information before the Tribunal, that could reasonably have supported a finding different to the one the Tribunal made about whether it would be reasonable for the applicant to relocate given the generalised and sectarian violence in Lebanon and which, therefore, the Tribunal ought to have addressed in its reasons.
[69] CB270-271, [42]
For these reasons, the ground on which the applicant relies fails.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
Counsel for both parties agreed that costs should follow the event, and that costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). Those rules have been superseded by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). I propose to order that the applicant pay the Minister’s costs in the amount of $7,853, being the amount provided for in Part 2 of Schedule 2 to the GFL Rules.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 5 November 2021
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