FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138

MIGRATION – whether Tribunal member had made up mind to affirm decision of delegate at time of sending s 424A letter – test for apprehended bias – no obligation to maintain neutral state of mind during review of decision – critical that Tribunal member not close mind against further probative material – Held: no reasonable apprehension of bias.

MIGRATION – compliance with s 424A of the Act – whether particulars of information the reason, or a part of the reason, for affirming the decision under review were provided to the respondent – whether explanation of why information relevant to review was sufficient – Held: particulars of relevant information not provided and insufficient explanation of relevance to review.

Migration Act 1958 (Cth) ss 36, 424A, 430

Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SZGMF AND REFUGEE REVIEW TRIBUNAL

NSD 593 OF 2006

BRANSON, FINN AND BENNETT JJ

7 September 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

REASONS FOR JUDGMENT

the court

introduction

1                     SZGMF, who it is convenient to call ‘the respondent’, is a citizen of Bangladesh who left his country of nationality in 1998. He claims to be entitled to a protection visa under the Migration Act 1958 (Cth) on the basis that he would experience serious persecution on the ground of political opinion were he to return to Bangladesh (see s 36 of the Act and Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees).

2                     The respondent has consistently asserted that he was a member of the Bangladesh Awami League and that his party leaders nominated him as Social Welfare Secretary in the Rajnagar Thana Branch of the League. He has also consistently asserted that his local political opponents attacked Awami League supporters and filed a false case against him in 1997.

3                     The Refugee Review Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (as the Minister is now known) that the respondent is not entitled to a protection visa.

4                     The Tribunal declined to give any weight to a number of documents provided to it by the respondent because of information received by it from the Australian High Commission in Dhaka. The details of that information are discussed below. The documents provided to the Tribunal by the respondent fall into two categories; first, letters of support signed by present or former senior office holders of the Awami League and secondly, purported police documents relating to a court proceeding in Bangladesh which the respondent described as a false case.

5                     The Tribunal gave no weight to the respondent’s letters of support. The Tribunal did not accept that the respondent had enjoyed even local prominence in the Awami League. Proceeding on the basis (but without making a finding to that effect) that the respondent had been an active supporter of the Awami league, the Tribunal nevertheless found that he had not feared for his life in Bangladesh. The Tribunal further found that whatever small political profile the respondent may have had in 1998 would by now have been lost. The Tribunal accepted the advice from the Australian High Commission that the purported police documents were not genuine. The Tribunal concluded that the respondent does not have a well-founded fear of persecution in Bangladesh for reason of political opinion or for any other Convention reason.

6                     The decision of the Tribunal was quashed by an order of the Federal Magistrates Court (SZGMF v Minister for Immigration & Anor [2006] FMCA 283). The Federal Magistrates Court further ordered the Tribunal to redetermine the matter according to law.

7                     The Minister has appealed to this Court from the judgment of the Federal Magistrates Court and the respondent has filed a notice of contention. The second respondent filed a submitting appearance. For the reasons set out below, we have concluded that the Minister’s appeal should be dismissed.

reasons of federal magistrate

8                     The learned Federal Magistrate identified the real issues to be decided on the application to that Court for judicial review of the decision of the Tribunal as whether the Tribunal complied with its statutory obligations under s 424A of the Act and whether it denied the respondent procedural fairness.

9                     On the first of the issues his Honour noted that the Tribunal had written to the respondent in the following terms (‘the s 424A letter’):

‘The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

The information is as follows:

The [respondent] submitted documents of support from prominent political figures in Bangladesh in support of his claims. He also submitted documents purporting to be police documents involving a charge against him.

The Tribunal has received reliable information as follows:

1. Many members of the Awami League are prepared to offer such documents on request in a humanitarian way to help former supporters. They are worded in a way to offer support to obtain economic refugee status, rather than to verify any particular status within the Awami League.

2. The purported police documents do not match with the original case documents held at the Moulvibazar Additional District Magistrates Court and are not authentic.

This information is relevant because it may undermine the general credibility of the [respondent] and may cause these documents to be disregarded.

You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 5 April 2005.

IF YOU DO NOT GIVE COMMENTS BY 5 APRIL 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.’

10                  His Honour concluded that, in accordance with the statutory requirements, the above letter set out in sufficient detail the information that was likely to lead to affirmation of the delegate’s decision. He further concluded that ‘[t]he significance of that information was also set out in sufficient clarity for the [respondent] to understand it’.

11                  On the second issue, however, his Honour concluded that the Tribunal did not afford the respondent procedural fairness because there was a reasonable apprehension of bias; ie that the Tribunal member had already made up his mind to affirm the decision of the delegate at the time that the respondent was invited to comment on the information set out in the s 424A letter. His Honour therefore set aside the decision of the Tribunal on the ground that it was affected by apprehended bias.

notice of appeal and notice of contention

12                  The notice of appeal alleges that the Federal Magistrate erred in concluding that the Tribunal’s decision was affected by jurisdictional error because there was a reasonable apprehension that the Tribunal member had made up his mind to affirm the decision of the delegate at the time when the Tribunal sought to comply with its obligations under s 424A of the Act.

13                  The respondent filed a notice of contention by which he contended that the decision of the Federal Magistrates Court should be upheld on the alternative basis that his Honour erred in finding that the Tribunal complied with the requirements of s 424A of the Act.

apprehended bias

The Test

14                  The parties accepted that the Federal Magistrate had rightly identified the test for apprehended bias in a Tribunal member by reference to the decision of the High Court in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[28] and [30]-[31]. That test is whether a hypothetical fair-minded lay observer, properly informed about the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the question to be decided.

Approach of Federal Magistrate

15                  The critical question identified by his Honour, having regard to the history of the matter before the Tribunal, was whether there is a reasonable apprehension that the Tribunal member did not have an open mind at the time that the s 424A letter was sent to the respondent.

16                  The Federal Magistrate drew support for his conclusion that, as at the date of the s 424A letter, the Tribunal member had already decided to affirm the decision of the delegate from two sources: first, from the written reasons for decision of the Tribunal and secondly, from what was, and what was not, included in the s 424A letter.

The Tribunal’s Written Reasons for Decision

17                  The Federal Magistrate expressed the view that it was apparent from reading the written reasons for decision of the Tribunal that, following the two hearings that it conducted in respect of the respondent’s review application, the Tribunal member had formed an adverse view of the respondent’s credibility. The passage from the reasons for decision upon which the Federal Magistrate placed reliance is as follows:

‘He [the respondent] demonstrated so little knowledge of the Awami League at the first hearing that I had serious doubts as to whether he was even a member. He came to the second hearing much better informed. However, his description of his own role was so vague that I cannot accept that he had any prominence in the party or locally, even if he was active. His account of his wanderings around Bangladesh between the time he left his home area and the time he left the country strained credibility. If it was unsafe for him to be in the country, he would have left.’

18                  A fair-minded lay person properly informed about the nature of the proceedings would be aware of the obligation placed on the Tribunal by s 430 of the Act. Section 430(1) requires the Tribunal on review to prepare a written statement that:

‘(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c)             sets out the findings on any material questions of fact; and

(d)             refers to the evidence or any other material on which the findings of fact were based.’

19                  As mentioned above, the decision of the Tribunal on the review (s 430(1)(a)) was that the respondent is not entitled to a protection visa. The reason for the Tribunal’s decision (s 430(1)(b)) was that the Tribunal was not satisfied that the respondent satisfied the criterion set out in s 36(2)(a) of the Act for the grant of a protection visa; ie that he is a non-citizen in Australia to whom Australia has protection obligations under the Convention. The Tribunal’s findings on material questions of fact (s 430(1)(c)) included that (a) the respondent was not persecuted, threatened or suffered any harm for any reason before he left Bangladesh and (b) his family is not being harassed or threatened in any way in Bangladesh. The passage from the reasons for decision of the Tribunal set out in [17] above constitutes a reference to evidence and other material on which the Tribunal’s findings on these material questions of fact were based (s 430(1)(d)).

20                  In our view, a fair-minded lay observer, properly informed of the requirements of s 430, would not apprehend that the Tribunal member might not bring an impartial mind to the question to be decided merely because he recorded in his reasons for decision the doubts concerning the respondent’s credibility held by him following the first hearing. Section 430(1)(d) required the Tribunal to refer to the evidence and other material on which its material findings of fact were based. It was entirely appropriate for the Tribunal additionally to explain how that evidence and other material led it to make its material findings of fact.

21                  Further, there is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate’s decision. What is critical is that the member not close his or her mind against any additional material that might possibly prove probative. In our view there is no reason to think in this case that the Tribunal member, after the first hearing, had closed his mind against additional material that might possibly prove probative. The Tribunal thereafter invited the respondent to a second hearing and it sought expert assistance regarding the authenticity of documents provided to it by the respondent. This is not conduct which suggests that the Tribunal had already reached a decision from which it could not be moved.

22                  The Federal Magistrate also placed weight on a passage from the Tribunal’s reasons for decision in which the Tribunal member commented on the respondent’s response to the s 424A letter. The respondent’s immediate response to the Tribunal’s s 424A letter was to assert an entitlement to additional time to make comments ‘as the information is coming from overseas’ and to request that he be allowed more time to make comments on the information. The Tribunal replied by denying the respondent was entitled to extra time as the Tribunal had not requested the information and thus confirmed the time within which his comments should be provided. However, the Tribunal’s letter indicated that it might be prepared, on request, to grant him further time to obtain information from overseas. No such request was made.

23                  The passage on which the Federal Magistrate placed weight was the following:

‘His request for more time to obtain and submit other documents would have been more persuasive if they also had not been intended to demonstrate that he had court cases against him.’

24                  His Honour considered the paragraph ‘indicative of a strong view held by the presiding member at the time the extension of time was sought that the false cases claim was false’. Having regard to the advice from the Australian High Commission in Dhaka that the documents said to support the respondent’s false cases claim were not genuine, we do not consider that the Tribunal is to be criticised for forming a strong view that the false cases claim was itself false – provided that it remained open to persuasion that it should modify or alter its view. Indeed, the Federal Magistrate himself observed that ‘[t]here can be little quarrel with the proposition that the second report from DFAT about the court documents seriously undermined the [respondent’s] credibility.’ We see no reason to conclude that the Tribunal had closed its mind against consideration of any further probative material that the respondent might have placed before it.

The Contents of the s 424A Letter

25                  The Federal Magistrate also placed weight on the following features of the s 424A letter:

(a)                its failure to mention that a ‘reliable senior Awami League member’ had advised that the letters of support relied upon by the respondent were genuine;

(b)               the description of information given by the ‘reliable Awami League member’ as ‘reliable information’; and

(c)                the failure to mention that the Awami League member had expressed the belief that the respondent, at the time of the alleged charges against him, may have left the Awami League because of personal disagreements with certain Awami League members.

26                  His Honour expressed the view that an implication arises from the withholding of the information regarding the genuineness of the letters of support relied on by the respondent that the Tribunal member preferred not to give the respondent the opportunity to use that information. The more likely implication, in our view, is that the author of the s 424A letter wrote it with the intention of ensuring compliance with the obligation placed on the Tribunal by s 424A of the Act and did not turn his or her mind to the possibility of using the letter for any additional purpose. In any event, it seems to us that the letter clearly implied that the letters of support were considered to be genuine ‑ in contrast with the police documents which are described in the letter as ‘not authentic’.

27                  The distinction drawn by the Federal Magistrate between information from a reliable person (‘a reliable senior Awami League member’) and ‘reliable information’ is, in our view, excessively subtle. The Tribunal was required to give the respondent particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The relevant information concerning the letters of support was set out in the paragraph numbered 1 in the letter. The Tribunal was not required to give the respondent particulars of the source of the information. We think it unlikely that a fair-minded lay observer would infer anything of significance from the short-hand way in which the s 424A letter refers to the source of the information.

28                  The Federal Magistrate identified the significance of the failure of the s 424A letter to mention that the Awami League member had expressed the belief that the respondent, at the time of the alleged charges against him, might have left the Awami League because of personal disagreements with certain other members in the following passage from his reasons for judgment:

‘…There is an implication open on the material that the informant may have previously known the [respondent]. The significance of that possibility and the particular comments made by the informant were not revealed to the [respondent]. If they had been revealed the [respondent] may have been enabled to respond effectively to at least the first issue raised in the letter of 11 March 2005. For example, the [respondent] may have been able to assert that the informant was one of those with whom the [respondent] had disagreed, and was motivated by animosity towards him.’

29                  In our view, the implication identified by his Honour would also be unlikely to be drawn by a fair-minded lay observer properly informed of the statutory obligations imposed on the Tribunal by s 424A of the Act. The implication, while open to be drawn, is not a powerful one. Further, s 424A did not require the Tribunal to speculate as to the relationship (if any) between the informant and the respondent.

Conclusion re Apprehended Bias

30                  We conclude that the Federal Magistrate erred in concluding that a hypothetical fair‑minded lay person properly informed as to the nature of the proceedings before the Tribunal, the matters in issue and the conduct identified by his Honour might reasonably apprehend that the Tribunal member, at the time that the s 424A letter was sent to the respondent, might have reached a firm decision from which he could not be persuaded to affirm the decision of the delegate.

compliance with s 424A of the Migration Act

Requirements of s 424A

31                  The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)) and secondly, to ensure, as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).

The Information Received

32                  The information received by the Tribunal concerning the respondent’s letters of support was as follows:

‘A reliable senior Awami League member has advised us that the Awami League documents attached to these referrals are genuine. However, our contact further advised that the content of these documents are worded in such a way as to offer this applicant support to obtain economic refugee status abroad, rather than to verify any particular status within the Awami Lleague [sic]. He said many members within the Awami League, are prepared to offer such documents on request from such applicants, in a humanitarian attempt to help their former supporters.’ (emphasis added)

The Information Provided

33                  The s 424A letter (see [9] above) advised the respondent that it had received the following information, which it characterised as ‘reliable’, concerning his letters of support:

‘Many members of the Awami League are prepared to offer such documents on request in a humanitarian way to help former supporters. They are worded in a way to offer support to obtain economic refugee status, rather than to verify any particular status within the Awami League.’

Did the Tribunal Provide Particulars of the Information?

34                  The information which the Tribunal received concerning the respondent’s letters of support included advice that those very letters were worded in such a way as to offer him support to obtain economic refugee status abroad rather than to verify any particular status within the Awami League. The information also included advice, apparently by way of explanation, that many members of the Awami League are prepared to offer ‘such documents’ on request from ‘such applicants’. Yet the purported particulars of the information provided to the respondent by the s 424A letter made no reference to the advice that his documents were worded in such a way as to offer him support to obtain economic refugee status abroad rather than to verify any particular status within the Awami League.

35                  In its reasons for decision the Tribunal stated:

‘Because of the advice received by the Australian High Commission in Dhaka from a senior source within the Awami League, I am unable to give any weight to the [respondent’s letters of support].’

36                  The above statement provides no basis for a finding that the Tribunal considered that only the general, and not the specific, information which it had received concerning the respondent’s letters of support would be the reason, or a part of the reason, for affirming the decision under review. It is therefore appropriate to conclude that the information which specifically related to the respondent’s letters of support was information which the Tribunal considered would be (at the least) part of the reason for affirming the decision under review. It necessarily follows that the Tribunal failed to comply with its statutory obligation under s 424A(1)(a).

Explanation of Relevance

37                  The Tribunal sought to ensure that the respondent understood why the information concerning his letters of support was relevant for its review by telling him:

‘This information is relevant because it may undermine the general credibility of the [respondent] and may cause these documents to be disregarded.’

Sufficiency of Explanation

38                  The following are representative extracts from the respondent’s letters of support from present or former senior Awami League members:

‘I Know [SZGMF] … is personally known to me. [SZGMF] has been an active member of Bangladesh Awami League, a major political party in Bangladesh and was holding the portfolio of social welfare secretary from 1995 to 1998 in Rajnagar Thana.

During his stay in Bangladesh [SZGMF] was directly involved with politics of Bangladesh Awami League and seriously vocal against all sorts of Islamic fundamentalism. I know that because of his personal views, [SZGMF] was harassed and intimidated by the vested quarters while he was in Bangladesh.’

and

‘I have great pleasure to certify that [SZGMF] is personally known to me. He was the Welfare Secretary of Bangladesh Awami League in Rajnagar Thana Branch since 1995 to 1998. I have been mention on my previous letter dated 07-01-2002.

However, if [SZGMF] back in Bangladesh. Especially as long as this government in power. I am very very sure [SZGMF] will be killed; present government came to power in coalition with a neo-fascist ultra religious party Jame-e-Islami since coming to power the government is pursing [sic] a policy of Talibanisation of society.’

39                  As identified above, the reasons for decision of the Tribunal record that it gave no weight to the respondent’s letters of support because of the advice which it received from the Australian High Commission in Dhaka. That advice included advice that the letters were genuine. The decision of the Tribunal to give no weight to the letters must therefore have been based on a conclusion that, notwithstanding that the letters were genuine, the content of the letters was false.

40                  As mentioned above, the obligation on the Tribunal was to ‘ensure, as far as is reasonably practicable’, that the respondent understood why the information set out in the s 424A letter was relevant to the review. No practical or other difficulty stood in the way of the Tribunal telling the respondent that the information which it had received about his letters of support caused it to disbelieve or doubt the content of those letters. Yet the s 424A letter did not explicitly tell the respondent that the relevance to the review of the information which it had received about his letters of support was that the information indicated that the content of the letters was false.

41                  The Tribunal’s failure to state explicitly the relevance to the review of the information concerning the respondent’s letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s 424A letter; the use that the Tribunal could make of the information as particularised was not self-evident.

42                  The information, as particularised in the s 424A letter, concerned the preparedness of ‘[m]any members of the Awami League’ to offer such letters; it did not refer explicitly to the authors of the respondent’s letters. Additionally the information, as particularised in the s 424A letter, referred to ‘such documents’ being worded in a way to offer support to obtain ‘economic refugee status’. In the context of the s 424A letter, the expression ‘such documents’ is ambiguous; it could mean the respondent’s letters of support or alternatively it could mean documents generally of the class that many Awami League members are prepared to offer. Factors which could have caused the respondent to adopt the latter meaning include that the respondent had not claimed economic refugee status and that his letters of support did not refer to any economic consequences of his involvement with the Awami league but rather asserted that his life was in danger in Bangladesh. Moreover, the information, as particularised in the s 424A letter, indicated that ‘such documents’ are not worded to ‘verify any particular status within the Awami League’. Yet at least four of the respondent’s letters of support explicitly sought to verify that he did hold a particular status within the Awami League, namely Social Welfare Secretary in the Rajnagar Thana Branch.

43                  In our view, it was reasonably open to the respondent to conclude from the s 424A letter that the information which the Tribunal had received was information about a class of documents rather than information specifically about his letters of support. For this reason he may not have understood that the relevance of the information to the Tribunal’s review was that it caused the Tribunal to disbelieve or doubt the content of his letters of support.

44                  We therefore conclude that the s 424A letter did not ensure, so far as reasonably practicable, that the respondent understood why the information received by the Tribunal concerning his letters of support from present and former senior Awami League members was relevant to the Tribunal’s review. The Tribunal thus failed to comply with its statutory obligations pursuant to s 424A(1)(b).

conclusion

45                  The appeal will be dismissed with costs.

Associate:

Dated: 7 September 2006