WZATN v Minister for Immigration & Anor
[2014] FCCA 861
•30 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 861 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – whether jurisdictional or procedural error – whether actual or apprehended bias. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c) |
| Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 |
| Applicant: | WZATN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 358 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 April 2014 |
| Date of Last Submission: | 28 April 2014 |
| Delivered at: | Perth |
| Delivered on: | 30 April 2014 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr P Macliver |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS (made on 28 April 2014)
The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and, alternatively on the merits of the application.
The applicant pay the first respondent’s costs in the sum of $6646 by 28 May 2014.
Reasons for Judgment to be published from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 358 of 2013
| WZATN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed in this Court on 2 December 2013, the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth),[1] of a decision of the second respondent, the Refugee Review Tribunal, [2] made on 30 October 2013. The Tribunal affirmed a decision of a delegate[3] of the first respondent[4] dated 21 March 2013 to refuse to grant a protection (Class XA) visa[5] to the applicant.
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 265-292.
[3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 124-140.
[4] “Minister”.
[5] “Protection Visa”.
Factual and procedural background prior to the Tribunal Decision
The applicant:
a)is a Sri Lankan citizen of Tamil ethnicity, born in Killinochchi, Northern Province, Sri Lanka on 2 November 1990;[6]
[6] CB 125.
b)lived in Colombo between 2007 and 2009 where he resided with his brother;[7]
[7] CB 125.
c)with his family departed Sri Lanka and entered India on a tourist visa on 28 March 2009;[8]
[8] CB 125.
d)subsequently registered with the Indian authorities as a refugee, and resided at the Kavangarai Refugee Camp at Pulzhal, in Chennai in India;[9]
[9] CB 125.
e)departed Channai on 12 June 2012 and arrived in Australia as an irregular maritime arrival on 28 June 2012;[10]
[10] CB 125.
f)had an initial entry interview on 29 August 2012;[11]
[11] CB 2-20.
g)was advised on 30 October 2012 that the Minister (then the Minister for Immigration & Citizenship) had exercised power under s.46A(2) of the Migration Act to allow the applicant to lodge an application for a Protection Visa;[12]
[12] CB 38.
h)lodged an application for a Protection Visa on 30 October 2012;[13]
[13] CB 40-75.
i)had detailed written submissions in support of his Protection Visa application forwarded to the Delegate by lawyers acting on his behalf;[14]
j)was advised on 21 March 2013 of the Delegate’s Decision to refuse to grant the applicant a Protection Visa;[15]
k)lodged an application with the Tribunal on 27 March 2013 (through lawyers acting on his behalf) for a review of the Delegate’s Decision;[16]
l)had lawyers acting for him file a lengthy submission in support of the applicant’s application to the Tribunal on 15 May 2013;[17]
m)at a hearing before the Tribunal on 17 May 2013:
i)gave evidence in response to various questions put to him by the Tribunal; and
ii)had his representative make submissions to the Tribunal;[18] and
n)subsequent to the Tribunal hearing provided (through his lawyers) further written submissions to the Tribunal, including photographs of the applicant’s family home in Sri Lanka.[19]
[14] CB 109-122.
[15] CB 124-140.
[16] CB 154-159.
[17] CB 180-229.
[18] CB 270-274 at paras.36-64.
[19] CB 234-264.
Tribunal Decision
The Tribunal Decision sets out:
a)the relevant law, including:
i)reference to the relevant refugee and complementary protection criterion;[20]
[20] CB 266-268 at paras.6-18.
ii)the requirement to take account of the relevant Departmental policy guidelines;[21] and
[21] CB 268 at para.19.
iii)issues relevant to the assessment of credit including the degree of difficulty of proof of issues for refugee claimants, and the fact that the Tribunal is not required to accept uncritically claims and assertions made to it;[22] and
b)the applicant’s claims and evidence including:
i)his personal biodata, including the fact that his siblings still live in the Kavangarai Refugee Camp in Chennai India;[23]
ii)claims that the LTTE[24] took his father for seven days in approximately 2005-2006, and that the LTTE wanted one person from his family to join them, and that when he and his brother fled to Colombo, the LTTE forcibly took his eldest sister;[25]
iii)that in Colombo the Sri Lankan Army[26] and the police were rounding up Tamils, and he was arrested on three occasions because he had an ID card from an area that was considered an LTTE stronghold and he was suspected of being associated, and was interrogated by the police in relation to his affiliation, with the LTTE;[27]
iv)that he left India because he could have been a refugee there for the rest of his life, and was afraid of being sent back to Sri Lanka. He cannot return to India because he has no legal right to reside there;[28]
v)his claims to fear harm at the hands of the police, the SLA, the Criminal Investigation Division and LTTE members if returned to Sri Lanka, particularly because he is a young Tamil male from the Killinochchi area and because two of his sisters were involved with the LTTE;[29] and
vi)that because he left Sri Lanka the authorities may now consider that he has admitted to being a member of the LTTE.[30]
[22] CB 268 at paras.20-21.
[23] CB 269 at paras.23-25.
[24] “LTTE” is the accepted acronym for an organisation called the Liberation Tigers of Tamil Eelam.
[25] CB 269 at para.27.
[26] “SLA”.
[27] CB 269 at para.28.
[28] CB 269 at para.30.
[29] CB 269-270 at paras.31-32.
[30] CB 270 at para.33.
The Tribunal Decision indicates that at the Tribunal hearing the applicant:
a)alleged that his two sisters had been taken away at different times by the LTTE;[31]
b)alleged that the LTTE had brought wounded fighters to the family home for treatment, and the LTTE had also taken over and used family vehicles;[32]
c)provided information on the three occasions when he alleged was detained whilst working in Colombo, in 2007, sometime in 2008 and in June or July 2008. Essentially, these appear to have consisted of identity checks of rounded up Tamil persons residing in Colombo who were from perceived LTTE strongholds, and who might have been suspected of being associated with the LTTE. The applicant asserts that he was interrogated, but on the information provided a more correct characterisation might be that he was questioned. He does not allege that he was assaulted or beaten, and when specifically asked how he had been mistreated the applicant responded that he had been questioned in different ways. On the first occasion after saying that he was a student and removing his shirt he was allowed to leave without harm, and on the second and third occasions he was allowed to leave after the intervention of his Singhalese speaking employer;[33]
d)was asked by the Tribunal why he considered he would be targeted in circumstances where the war ended in May 2009, there has been large scale reconstruction, and the state of emergency ended in September 2011. The applicant indicated that he had lived in an LTTE controlled area, and that his family circumstances, including his sister helping the LTTE, were such that there was a risk of his being hurt;[34]
e)when asked why the police simply let him go after the Colombo arrests, and why the police would still be interested in him after several years, the applicant indicated that he thought the police would be even more suspicious now that he had left the country and repeated his answer that his sister had assisted the LTTE;[35]
f)indicated that he was not able to return safely to anywhere in Sri Lanka because he would have to register and the authorities would find him, but that his parents, who were still in India, could return because they were elderly and they could be financially supported by the applicant’s brother in Canada;[36]
g)asserted, in response to a question from the Tribunal, that he would be targeted for harm by the LTTE out of jealousy because his family had been wealthy but had got away, and even those who were members of the LTTE who had joined other groups might still want to harm the applicant;[37] and
h)denied that persons who had worked for the LTTE during the war were no longer of interest to the authorities;[38]
[31] CB 271 at para.40.
[32] CB 271 at paras.41-42.
[33] CB 271-272 at paras.44-47.
[34] CB 272 at paras.48-49.
[35] CB 272 at para.50.
[36] CB 272 at paras.52-53.
[37] CB 272 at para.54.
[38] CB 273 at para.56.
The Tribunal Decision indicates that the Tribunal then turned to matters which it considered would be the reason, or part of the reason, why the Tribunal would affirm the Delegate’s Decision, and explained to the applicant that he had a right to an adjournment before providing a reply, and that the Tribunal would also consider a request for time to enable the applicant or his representative to provide a written response to the information, provided pursuant to s.424AA of the Migration Act. The information put to the applicant was as follows:
· The UNHCR eligibility guidelines indicate certain profiles of persons who may require refugee protection in respect of Sri Lanka. The particular profiles were explained, and the Tribunal indicated that the applicant does not appear to be in any of those profiles;
· country information indicates that failed asylum seekers returning to Sri Lanka are subject to the same treatment as anyone else and are not targeted for mistreatment;
· anyone who has departed Sri Lanka illegally and in contravention of the relevant law, may be charged with an offence, detained, and presented before a magistrate. The country information indicates that the penalty for such an offence is a fine and that the magistrate’s court grants bail to those charged with such an offence.[39]
[39] CB 273 at para.57.
The Tribunal Decision indicates that:
a)the Tribunal explained that the relevance of the information provided was that if the Tribunal accepted it, and subject to the applicant’s comments, the Tribunal might conclude that the applicant would not face a real chance of serious harm should he be returned to Sri Lanka now or in the reasonably foreseeable future;[40]
b)following an adjournment in the Tribunal hearing, the Tribunal asked the applicant whether:
i)he could relocate to any other part of Sri Lanka, and was again told that he would have to register and the authorities could do a search and find him anywhere in Sri Lanka;[41]
ii)he had any evidence to support his claim that his sister had been taken and forced to assist the LTTE, to which the applicant replied that he did not know how to convince the Tribunal that his sister had been taken by the LTTE;[42] and
iii)the police had asked about his sister and family when he had been arrested and questioned by the police. The applicant did not respond to this question directly, but said that he might provide a photo of his house;[43]
c)the Tribunal thereafter explained the complementary protection provisions of the Migration Act and invited the applicant to comment or make submissions on those provisions, which the applicant did, through his representative;[44] and
d)the Tribunal also agreed to the applicant’s representative to request that one week be allowed to provide for further submissions.[45]
[40] CB 273 at para.57.
[41] CB 273 at para.58.
[42] CB 273 at para.59.
[43] CB 273 at para.60.
[44] CB 273-274 at paras.61-64.
[45] CB 274 at para.64.
The Tribunal Decision indicates that the Tribunal received a post-hearing submission on 4 June 2013, in which the applicant:
a)submitted that his case fell within the scope of the relevant United Nations High Commission for Refugees[46] eligibility guidelines[47] for assessing the international protection needs of asylum seekers from Sri Lanka, namely being a family member of a person suspected of affiliation with the LTTE;
b)submitted that the fact that the applicant had been released from police detention in the past did not mean he would not be harmed upon return to Sri Lanka, and his being a Tamil from the north of Sri Lanka together with time spent abroad would heighten the chances of him being harmed for reasons of his imputed political opinion on the basis of his sisters’ previous involvement with the LTTE;
c)referred to previous country information, and provided other country information reports to the Tribunal; and
d)attached a number of photographs claimed to be of the applicant’s family home destroyed during the civil war in Sri Lanka.[48]
[46] “UNHCR”.
[47] The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (21 December 2012) (“2012 UNHCR Eligibility Guidelines”).
[48] CB 274 at para.65.
The Tribunal Decision thereafter sets out independent country information from a variety of sources concerning the treatment of Tamils in Sri Lanka, including the treatment of returnees, failed asylum seekers and those who have departed Sri Lanka illegally, including, but not limited to the following:
a)the 2012 UNHCR Eligibility Guidelines;
b)information from the Canadian Immigration and Refugee Board;
c)the outcomes of a Danish Immigration fact-finding mission to Sri Lanka in July 2010, which reported in October 2010;
d)various information from the Australian Department of Foreign Affairs and Trade[49] up to and including a report on 28 February 2013;
e)various media accounts of events in Sri Lanka including reports from:
i)the Sri Lanka Guardian in January 2011;
ii)BBC Sinhala in September 2011; and
iii)Tamil Net in 2012;
f)a May 2010 press release from the Edmund Rice Centre, an Australian research, advocacy and networking organisation that also works with refugees and asylum seekers; and
g)a June 2011 report from Amnesty International concerning failed asylum seekers, mainly Tamil, being taken in for questioning on their return to Sri Lanka.[50]
[49] “DFAT”.
[50] CB 274-287 at paras.66-91.
The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.[51] In arriving at that conclusion the Tribunal:
[51] Migration Act, s.36(2)(a) and (aa).
a)found that the applicant’s claims concerning the recruitment of his sisters by the LTTE was insincere and lacked credibility, and was fabricated or embellished for the purposes of strengthening the Protection Visa claim;[52]
[52] CB 288 at para.93.
b)had doubts concerning the applicant’s claim with respect to the LTTE using the family house and vehicles, but proceeded on the basis that that claim might be true;[53]
[53] CB 288 at para.93.
c)proceeded to assess the applicant’s claims in light of the finding as to his unreliability as a witness of truth;[54]
d)accepted that the applicant may have been questioned by the police in 2007 and 2008, but concluded that he was not seriously harmed, and whilst he may have been questioned in different ways, and mistreated in this respect, that that did not point to a real chance of future serious harm of itself, or in all the circumstances of the case;[55]
e)in light of the information concerning his detention and release in 2007 and 2008, and country information concerning the cessation of the hostilities and significant improvements in conditions in Sri Lanka, that the applicant did not face a real chance of serious harm at the hands of the Sri Lanka authorities, or by anyone else, if he returned to Sri Lanka, now or in the reasonably foreseeable future for reasons of his being a young Tamil originating from the north of Sri Lanka, and in that regard the Tribunal had particular regard to the 2012 UNHCR Eligibility Guidelines;[56]
f)was not satisfied that the applicant would be imputed with a pro LTTE political opinion for reasons of the LTTE having taken over his family’s home and vehicles and used them for their purposes, and was not satisfied that the applicant’s family circumstances, including his mother and father still living in a refugee camp in India, the alleged kidnapping of his uncle or the alleged detention of his sisters by the LTTE (which the Tribunal did not believe and found to be fabricated),[57] was sufficient to establish the more elaborate links required by the 2012 UNHCR Eligibility Guidelines required to establish a need for refugee protection;[58]
g)in view of the country information indicating a comprehensive and decisive neutralisation of the LTTE there was no more than a remote chance that the applicant might be harmed by former LTTE members;[59]
h)did not consider that the applicant was truthful with respect to the claims made concerning his sisters’ association with the LTTE, as his evidence on the point was vague and speculative, and inconsistent with his subsequent detention, and more particularly, his release by the police, which the Tribunal considered inconsistent with family involvement by the sisters with the LTTE, and the Tribunal formed the view that the applicant’s claims that his sisters were recruited by the LTTE was in fact a fabrication for the purposes of establishing an otherwise non-existent nexus between the applicant and the LTTE for the purposes of supporting his Protection Visa claim;[60]
i)did not accept that the applicant’s family, and in particular his father, had a relevant connection with the LTTE which would result in them being targeted for serious harm in Sri Lanka by the Sri Lanka authorities now or in the reasonably foreseeable future, for any reason, including their leaving for India at the time that they did, or that their home may have been taken over by the LTTE to treat its members during the hostilities;[61]
j)concluded that the applicant left India for reasons other than fearing persecution or significant harm if required to return to Sri Lanka, and that those other reasons included economic reasons;[62]
k)concluded that the applicant would not suffer serious harm by reason of being a returned failed asylum seeker, based on the country information which it had considered, and further that even if he failed to reacquire possession of the family home that that did not constitute serious harm as contemplated in s.91 of the Migration Act;[63] and
l)rejected other subsidiary claims of fear of attack by LTTE supporters or members, or by persons who may have been jealous of his past circumstances because his family used to have money in Sri Lanka, and in respect of the latter rejected the suggestion that it fell within the scope of Convention related persecution, and did not accept that there was credible country information to suggest that police protection would be denied to the applicant if he were targeted for such harm.[64]
[54] CB 288-289 at para.93.
[55] CB 288 at para.95.
[56] CB 288 at para.96.
[57] CB 288 at para.93 and CB 289 at para.101.
[58] CB 289 at paras.98-99.
[59] CB 289 at para.100.
[60] CB 289 at para.101.
[61] CB 289-290 at paras.102-103.
[62] CB 290 at para.104.
[63] CB 290-291 at paras.105-108.
[64] CB 291 at paras.109-110.
The Tribunal also rejected the applicant’s claims that he would meet the complementary protection provisions under s.36(2)(aa) of the Migration Act. In that regard the Tribunal dealt with each of the claims relevant to the complementary protection provisions, and having considered them concluded that there was not a real risk that the applicant would suffer significant harm if returned to Sri Lanka now or in the reasonably foreseeable future.[65]
[65] CB 291-292 at paras.111-113.
The Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[66]
The application for judicial review, grounds of review, and procedural matters in this Court
[66] CB 292 at paras.114-115 and 117.
The application
The applicant’s application for judicial review was filed on 2 December 2013.
Grounds of review
The application listed the grounds of the application for judicial review as follows:
1. Jurisdictional error
2. Procedural error
3. The Tribunal was biased in its decision.
Orders
On 23 January 2014 a Registrar of the Court ordered that the applicant file and serve on or before 2 April 2014 an amended application giving particulars of the grounds of review, and any further affidavits on which the applicant intended to rely at hearing. The applicant has not filed an amended application, particularised or otherwise, and has not filed any further affidavits.
When the matter was called for hearing, both inside and outside the courtroom, on 28 April 2014 the applicant did not appear. The Court indicated to the Minister’s Counsel that it had read the Minister’s submissions as filed, and following a short submission from the Minister’s Counsel as to the appropriate orders, the Court made the following orders:
1.The application be dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and, alternatively on the merits of the application.
2.The applicant pay the first respondent’s costs in the sum of $6646 by 28 May 2014.
3.Reasons for Judgment to be published from Chambers at a later date.
These Reasons for Judgment are the Reasons for Judgment referred to in order 3 above.
Non-appearance of the applicant
Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) provides that the Court may dismiss an application if the applicant fails to appear at hearing. The Court dismissed the application accordingly, and in exercising its discretion to do so had regard to the failure to particularise the grounds of review as originally filed, and the subsequent failure to file an amended application or any further affidavits pursuant to the orders made by the Registrar on 23 January 2014, being matters which tended to demonstrate a lack of substance in the grounds of review, thereby fortifying the exercise of the Court’s discretion in a manner adverse to the applicant.
Consideration of grounds of review
Without particulars the three grounds of the application fail to raise an arguable case for the relief claimed, especially in circumstances where there is no obvious or egregious error by the Tribunal on the face of the Tribunal Decision. The Court was not assisted by any written submissions filed by the applicant, as contrary to orders made by the Court the applicant did not file written submissions, or any further affidavit, and therefore no further elaboration of the grounds was made before the day of hearing. As set out above, the applicant did not attend the hearing, and oral submissions in support of the application were therefore not made. In these circumstances, none of the grounds of review are capable of establishing any jurisdictional error which would warrant the Court exercising it discretionary right to grant prerogative relief. The grounds of review therefore do not raise an arguable case, and the application ought to be dismissed.
Insofar as the applicant asserts jurisdictional error by the Tribunal, no jurisdictional error is apparent on the face of the Tribunal Decision. In any event, the Tribunal’s conclusions, including those in relation to the applicant’s credibility on certain issues, were reasonably open on the material that was before it. The evaluation of the evidence before the Tribunal, including country information, was a matter for the Tribunal.[67]
[67] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ.
The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant.[68] The Tribunal was entitled to assess the applicant’s credibility, and the assessment of credibility is a matter for the administrative decision-maker par excellence.[69] A credibility finding is a finding of fact, and a reviewing body must not set it aside simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.[70] The findings of fact made, including the assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s inability to be satisfied of the applicant’s claims, were open findings on the evidence before the Tribunal, for the reasons set out in the Tribunal Decision.[71] The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function,[72] but, in any event, those findings reveal no jurisdictional error.
[68] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J.
[69] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J, and see, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
[70] W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at 716 per Tamberlin and RD Nicholson JJ; [2001] FCA 679 at para.64 per Tamberlin and RD Nicholson JJ.
[71] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[72] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
With respect to procedural error the requirements with respect to procedural fairness are set out exhaustively in Division 4 of Part 7 of the Migration Act.[73]
[73] Migration Act, s.422B.
As this was a case to which s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant “normal” procedural fairness.[74] The applicant was entitled only to the rights afforded to him under Division 4 of Part 7 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather:
a)the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal hearing. The applicant attended the hearing and gave evidence in support of his claims and with his representative in attendance, and with the representative also making representations on the applicant’s behalf.[75] Further, the Tribunal Decision includes a number of instances where the Tribunal specifically raised with the applicant at the hearing the concerns that the Tribunal had with his claims and evidence. Those concerns included:
i)the applicant’s credibility, the credibility of his claims and the nature of the evidence before the Tribunal to support the applicant’s claims;
ii)the applicant’s lack of a genuine fear of serious harm; and
iii)that the country information undermined the applicant’s claims; and
b)the Tribunal put information to the applicant pursuant to s.424AA of the Migration Act at the Tribunal hearing, relieving it of any obligation to put the information to the applicant pursuant to s.424A of the Migration Act.[76]
[74] Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
[75] CB 270-274 at paras.36-55.
[76] SZMCD v Minister for Immigration & Citizenship & Anor (2009) 174 FCR 415; [2009] FCAFC 46.
The Tribunal’s obligations under s.425(1) of the Migration Act were complied with by the Tribunal by giving the applicant the opportunity to be heard.[77]
[77] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] 228 CLR 152; [2006[ HCA 65 (“SZBEL”).
In any event, even if “normal” procedural fairness was required to be afforded to the applicant, it was so afforded. The relevant principles in relation to procedural fairness require a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed.[78] In SZBEL[79] the High Court approved of what was said in the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd:[80]
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[81]
[78] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
[79] SZBEL CLR at 161-162 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ; HCA at para.29 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ.
[80] (1994) 49 FCR 576 (“Alphaone”).
[81] Alphaone at 590-591 per Northrop, Miles & French JJ.
The applicant was afforded the opportunity, which in this case he took, to:
a)attend and make submissions at the Tribunal hearing; and
b)respond in writing to the particulars of information sought at the Tribunal hearing.
In all of the above circumstances the Tribunal did accord procedural fairness to the applicant. Insofar as the ground alleging “procedural error” is concerned, it demonstrates neither jurisdictional error by want of procedural fairness, procedural error by way of want of procedural fairness, nor any other procedural error. It has not been established that the Tribunal failed to follow proper procedures, and no procedural error has been established by the applicant that which would amount to jurisdictional error, and no jurisdictional error has otherwise been established.
In relation to the allegation that the Tribunal was biased in its decision, this is again unparticularised.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven.[82]
[82] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J and 546-547 per Kirby J; [2001] HCA 17 at para.69 per Gleeson CJ and Gummow J and para.127 per Kirby J (“Jia Legeng”).
To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[83] Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment.[84]
[83] Jia Legeng CLR at 532 per Gleeson CJ and Gummow J; HCA at para.72 per Gleeson CJ and Gummow J.
[84] Re Refugee Review Tribunal & Anor; Ex parte H& Anor (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para.27 per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision shows that the Tribunal properly raised various concerns about the applicant’s case with the applicant, and, as set out above in relation to procedural fairness, canvassed relevant issues in accordance with its obligations under the Migration Act. The Tribunal’s detailed questioning of the applicant at the Tribunal hearing, the opportunity afforded to the applicant to answer those queries both at the hearing, and by way of a submission after the Tribunal hearing, demonstrates that the Tribunal gave the applicant every opportunity to persuade the Tribunal to the requisite degree of satisfaction that he had a well-founded fear of persecution for a Convention reason. In those circumstances, the Tribunal does not demonstrate prejudgment on the part of the Tribunal, nor does it give rise to a reasonable apprehension of prejudgment by the Tribunal.
In all of the above circumstances, the applicant’s allegation of bias has not been made out.
None of the three grounds of judicial review posited by the applicant have been made out. In its 28 April 2014 order the Court therefore dismissed the application on its merits, in the alternative to dismissing it for non-appearance by the applicant.
Conclusions and orders
The Court has concluded that the application ought to be dismissed for non-appearance, alternatively on the merits because none of the grounds of review have been made out by the applicant, for the reasons set out above. As set out above, orders dismissing the application, and providing for the applicant to pay the first respondent’s costs and for the publication of these Reasons for Judgment from Chambers were made on 28 April 2014.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 April 2014
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