FEDERAL COURT OF AUSTRALIA

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 26 March 2013 be set aside and in lieu thereof it be ordered:

(i)    the decision of the Refugee Review Tribunal dated 21 August 2012 be quashed and the application for review be remitted to that Tribunal to be determined according to law;

(ii)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ

1    I have had the advantage of reading the reasons for judgment of Flick J and Robertson J. I agree with their Honours’ reasons and with the orders proposed by them. I wish only to make the following additional remarks.

2    The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84].

3    Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.

4    A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.

5    The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.

6    Nothing I have said reflects on what might be any strength, or weakness, of the appellant’s claims.

7    Robertson J’s reasons for refusing the first respondent leave to file a Notice of Contention reflect mine. The issue raised was one that could have been met by evidence at the hearing below.

Associate:

Dated:    25 July 2013

REASONS FOR JUDGMENT

FLICK J

8    The Appellant is a citizen of Nepal who arrived in Australia on 18 February 2009 on a student visa.

9    On 28 September 2011 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa. A delegate refused that application on 5 March 2012. On 29 March 2012 he applied to the Refugee Review Tribunal (“the Tribunal”) seeking review of the delegate’s decision. The Appellant attended a hearing before the Tribunal member on 7 August 2012 and made further written submissions by way of a letter dated 20 August 2012. The Tribunal affirmed the delegate’s decision and published its reasons for decision on 21 August 2012.

10    The Appellant then sought judicial review of the Tribunal’s decision by the then Federal Magistrates Court. That Court dismissed the application on 26 March 2013: SZRUI v Minister for Immigration and Citizenship [2013] FMCA 126.

11    A Notice of Appeal was filed in this Court on 16 April 2013. Although nine separate Grounds are there set forth, the Appellant in summary form contends that the Federal Magistrate erred in not concluding that the decision of the Tribunal was vitiated by reason of a reasonable apprehension of bias on the part of the Tribunal member. Statements made by the Tribunal member during the course of the hearing were said to evidence a pre-determination and the making of “moral judgments” on the part of the Tribunal member. An Amended Notice of Appeal reduces the Grounds of Appeal to two – the first preserving the argument as to there being a reasonable apprehension of bias; the second raising an argument as to whether the Federal Magistrate erroneously approached the case “as if the relevant inquiry was actual bias…”.

12    Both the Appellant and the Respondent Minister were represented by Counsel.

13    The appeal is to be allowed with costs. In reaching this conclusion, the opportunity has been taken to read in draft form both the reasons of Allsop CJ and Robertson J. Concurrence is expressed with their Honours’ reasoning and the importance placed by the Chief Justice upon the need to ensure confidence in the administrative process.

THE PROCEEDINGS BEFORE THE TRIBUNAL

14    The hearing before the Tribunal member commenced at about 1.00 pm on 7 August 2012 and concluded a little less than two hours thereafter. A copy of the transcript of that hearing was available to the Federal Magistrate and this Court.

15    Factual claims being made by the Appellant included claims (inter alia) that:

    he had made a Muslim girl pregnant and that the girl’s father and some Muslim associates had attacked the Appellant’s family home. He claimed to fear persecution because he (as a Hindu) had a relationship with the Muslim girl;

    the Young Communist League (“YCL”) had assaulted the Appellant, his father and brother. It was claimed that the YCL had also asked the father for donations for the Maoists; and

    he and his father were active members of the Communist Party of Nepal (United Marxist Leninist) and he feared persecution by reason of his political opinions.

Reliance was placed upon a newspaper report.

16    The Tribunal rejected the claims. The Tribunal member found that the Appellant had never had any sexual relationship with the Muslim girl and had never been targeted by the Maoists or the YCL. These were the two principal themes pursued by the Tribunal member during the hearing.

17    The Grounds of Appeal seek to focus attention, not upon these conclusions of the Tribunal, but rather upon the exchanges during the hearing between the Tribunal member and the Appellant.

18    Although the transcript of the Tribunal hearing has been read in its entirety, for present purposes it is unnecessary to set forth more than the following exchanges.

19    With respect to the question as to the Appellant’s claims of having had sexual relations and having made the Muslim girl pregnant, one of the exchanges that occurred between the Tribunal member and the Appellant was as follows:

TRIBUNAL:    Well, I’m not a bit surprised. Well, I mean of course there would have been problems. Of course there would have been problems. Think about it. I mean the family of the girl is absolutely disgraced. Here she has a child and she has got no husband. It would have been a great disgrace and the family would have been extremely angry. Do you have any comment to make about this? Because all this stuff about the YCL getting angry and the Muslim community getting angry, any family of a girl in this situation would have been extremely angry.

It’s my understanding that people get absolutely infuriated by inter-caste marriages, never mind women being made pregnant without being married. But I’m not surprised that her family came to your house and were angry with your family. I’m not surprised. What did your father think you should do? Well, you were going to have to do something. Either pay somebody some money or offer to marry the girl or something.

INTERPRETER:    The mistake that was happened all of a sudden without knowing and we could not do anything.

TRIBUNAL:    I don’t believe it. Your father, you’ve said previously, was a person who was used to mediating between people in disputes. He must have been aware that you had dishonoured this girl and her family and that something would have to be done. And you’re telling me nothing happened. Just nothing happened.

INTERPRETER:    After the incident happened, what else could I do? Because there was no way the Muslim would accept a Hindu.

A little later there was also the following exchange:

TRIBUNAL:    Do you understand that this is very peculiar? That your parents are still living a couple of doors away from the family of the girl that you made pregnant and they don’t seem to have had any serious problems.

INTERPRETER:    What else could be worse than what they are facing now?

TRIBUNAL:    Well, what are they facing? They’re not facing anything serious enough to move.

INTERPRETER: They are being pestered by the YCL, the Muslim group.

TRIBUNAL:    Don’t be silly. I just don’t believe any of that. I don’t believe what you’ve told me about this Muslim girl. You weren’t able to tell me anything in detail about what happened after you found out this girl was pregnant. And I don’t accept that your parents would have continued to have lived a couple of doors away from the house of the family of this girl that you made pregnant without serious problems arising. If there had been serious problems, your parents would have moved away. Yes. Well, your parents would have moved away if there had been serious problems with the YCL. I can’t see why there would have been problems with them. I mean all they’re doing is asking for donations and your father, as far as you know, isn’t paying them. Nothing has happened.

INTERPRETER:    My point is after I have moved from that place, after I no longer lived there, the problems have settled a bit but still threatenings are coming from time to time. But my point is, if I go back, the problem will start again.

20    With respect to the question as to whether the Appellant or his family had been the subject of violence at the hands of (in particular) the YCL, the Tribunal member questioned the Appellant about his ability to relocate or possibly go to India. The following exchange then occurred:

TRIBUNAL:    Yes. So why can’t you go to India? It’s a way to avoid ---

INTERPRETER:    India also has political problems just like Nepal. Just because we share the borders and similar problems with the politics.

TRIBUNAL:    So what problems would you have?

INTERPRETER:    If YCL can persecute me there, they can also persecute me across the border because they know people.

TRIBUNAL:    I don’t accept that the YCL has persecuted you in Nepal. I can see no reason whatsoever why they would. Why would they? Why would they?

INTERPRETER:    The same incident, because of [the Muslim girl]. Because we have been targeted from long time.

TRIBUNAL:    Why would the YCL be interested? Look, they’ve done nothing to your parents. They may ask for donations from your father but he didn’t pay. Your parents haven’t seen it necessary to move from where they’ve lived for ages in your village. You’ve got no profile at all politically. Why would they be interested in you? Look, you have given me no rational explanation as to why the YCL would ally themselves with a Muslim minority. I’ve never heard of such a thing. It simply doesn’t make any sense. Not only does it not make any sense but you’ve given me no evidence that any member of your family has actually been seriously harmed since this single incident back in January 2008.

INTERPRETER:    What else can I say now?

TRIBUNAL:    Well, I don’t know what you can say because I don’t believe from what you’ve told me that you’ve been pursued by the YCL or, indeed, by the Muslims – apart from this girl’s family, I – if there was a relationship, then that might have happened, but then if you’re not pursued by the YCL, they’re not going to pursue you into India, why would they? You’re just of no interest to them. They had a long time to seriously harm you in Nepal, before you came to Australia, and they didn’t do it.

INTERPRETER:    How can you say they wouldn’t do anything to me in India?

TRIBUNAL:    Well, because they didn’t do anything to you Nepal.

INTERPRETER:    Because I moved around.

TRIBUNAL:    Don’t be silly. You said you kept on coming back to Nawalparasi – you moved between Nawalparasi and Kathmandu – over a whole year. It wouldn’t have been hard to wait for you to come back to Nawalparasi if they wanted to get you, particularly since this Muslim family just lives a couple of doors away. You know the real problem about this, [SZRUI], is this: you came to Australia in February 2009, and you’ve said you came to Australia to avoid all these problems that you’re attempting to tell me happened to you in Nepal. So you got here, at some point you stopped studying, your student visa was cancelled and you didn’t actually get to apply for a protection visa until over two years after you had arrived here. This delay is not consistent with the behaviour of a person who flees a country in fear of their [life]. Do you have any comment to make on that delay?

INTERPRETER:    It’s true I came here to study and I was happy. I did not know what I would have to go back to Nepal. I did not know that my visa would be cancelled.

A REASONABLE APPREHENSION OF BIAS?

21    A denial of procedural fairness on the part of an administrative tribunal, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: cf. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [17], 204 CLR 82 at 91 per Gaudron and Gummow JJ. See also: [2000] HCA 57 at [169] to [170], 204 CLR at 143 per Hayne J.

22    Where the denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of the decision-maker, such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. Although his Honour was there addressing the position of judicial officers when stating that “it is important that justice must be seen to be done”, that observation is equally applicable to decisions such as those made by the Tribunal. Similarly, it is equally important to recognise that such an allegation must not be too readily acceded to lest it encourages parties to seek to have their applications heard and resolved “by someone thought to be more likely to decide the case in their favour”: Id. Such an allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], 76 ALD 424 at 441 per Weinberg J. An appeal from this decision was allowed, but no reservation was expressed by the Full Court as to his Honour’s observations in respect to the allegation as to bias: Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216.

23    It is, accordingly, necessary for a Court to apply “realistic criteria”: Kwan v Kang [2003] NSWCA 336 at [77] per Sheller, Ipp and Tobias JJA. See also: Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2004] FCA 1537 at [21] and [54] per Crennan J; Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164 at [31], 119 ALD 565 at 574 per Bromberg J.

24    The application of such generally expressed propositions must necessarily take into account the legislative or other context in which a decision is being made. With specific reference to a decision of the Tribunal, Allsop J (as his Honour then was) observed in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264 at 269:

[19]    … The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here 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.

Moore and Tamberlin JJ agreed with Allsop J. “Robust and forthright testing of the appellant’s claims by the Tribunal”, it has similarly been said, “does not sustain a finding of apprehended bias”: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] per Barker J. See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [41] to [43], 112 ALD 54 at 61 per Spender J; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47] per Logan J; SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 at [18], 117 ALD 524 at 527 per Flick J.

25    In a judicial context, Kirby J has recognised that “the approach of [the High Court] has now travelled beyond the apparent approbation of judicial silence…”: Antoun v R [2006] HCA 2 at [32], 224 ALR 51 at 59. His Honour there said that “[j]ust as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views”: [2006] HCA 2 at [32], 224 ALR 51 at 60. In the very different administrative context of the Tribunal, a recognition of the prospect that a fact or issue of importance may emerge during the administrative process or during a hearing or interview has been elevated such that an opportunity to be heard may be denied where a claimant is not alerted to (for example) “specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt”: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [47], 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Such a requirement of procedural fairness has, obviously enough, been recognised in administrative decision-making contexts extending well beyond the processing of refugee applications: e.g., Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–592, Northrop, Miles and French JJ; Kioa v West (1985) 159 CLR 550 at 587.

26    An opportunity to be heard, it is thereby recognised, may fall short of a meaningful hearing if a claimant is provided with mere time and access to a decision-maker but with no awareness of the issues which the decision-maker considers fundamental or potentially fundamental to his claim.

27    Although there is no requirement imposed upon administrative decision-makers to continuously disclose a process of reasoning (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48], 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), 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. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that 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. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.

28    One of the ways in which the present Appellant sought to challenge the decision of the Tribunal was to allege that the exchanges during the hearing evidenced a predetermination by the Tribunal member as to the fate of his claim.

29    Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at 531-532 Gleeson CJ and Gummow J there observed:

[71]    … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

[72]    ... The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. …

The position of a Minister, it was there said, was substantially different from that of a judge or quasi-judicial officer adjudicating in adversarial litigation: [2001] HCA at [102], 205 CLR at 539. F’lld: DZACE v Minister for Immigration and Citizenship [2012] FCA 945 at [27] per Mansfield J; Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [599], 228 ALR 28 at 167 per Weinberg J.

30    Separate from his argument as to predetermination was an argument that a reasonable apprehension of bias arose simply by reason of the character of the exchanges or the terminology employed by the Tribunal member during the hearing.

31    Again in a context where a decision of the Tribunal was under challenge, Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, 131 FCR 102 at 126-127 made the following observations as to what would not constitute a reasonable apprehension of bias:

[81]    Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:

While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279–80, 283.

As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.

In concluding that the decision of the Tribunal was there vitiated by reason of a reasonable apprehension of bias, her Honour concluded that “[t]he vice in this case was that, by the Member’s conduct during the hearing, a fair minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account”: [2003] FCA 872 at [82], 131 FCR at 127.

32    The use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias: Penhall-Jones v State of NSW [2007] FCA 925 at [92] to [97]. Buchanan J there concluded that the use of language such as the description of an offer as a “bribe” being “ridiculous” was not sufficient. Nor will “harsh tones” necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J.

33    Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck 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.

34    Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.

35    In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion. A reasonable apprehension of bias, it is thus concluded, has been made out. This conclusion has been reached because:

    the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe … that you’ve been pursued by the YCL”;

    the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;

    the manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and

    the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe … what you’ve told me…”.

This conclusion is also reinforced by:

    the expression by the Tribunal member of her own value judgment that the Appellant’s claim to have made the Muslim girl pregnant would have “absolutely disgraced” the family of the girl and would have been “a great disgrace” as the Appellant would have “dishonoured this girl…”. Such expressions went beyond a means of eliciting a response from the Appellant and trespassed into the area of a concluded view that a failure on the part of the Appellant “to do something” could only be explained by the claim not being genuine.

A reasonable opportunity to be heard, it is concluded, requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.

36    This conclusion as to there being a reasonable apprehension of bias is not denied by reason of:

    the length of the hearing itself – a two hour hearing, perhaps, not itself evidencing any “rush to judgment” to reach a predetermined conclusion or result;

    the fact that at the outset of the hearing the Tribunal member informed the Appellant that she would “point out to you anything that I think might be a problem with your claims” and that he would have “the opportunity during the hearing to comment on any such problem”;

    the fact that at the conclusion of the hearing the Tribunal member asked the Appellant: “… is there any comment you would like to make at this stage, or would you like to think about those things and provide something in writing for me within the next, say, couple of weeks”; and

    the fact that a submission was made after the date of the hearing and was in fact taken into account by the Tribunal member.

Such considerations do not outweigh the conviction with which the Tribunal member expressed her conclusions during the course of the hearing and before the hearing was completed. Given the manner in which the hearing proceeded, a reasonable bystander might conclude that there was nothing much that the Appellant could say to shift the Tribunal member from the views she had previously expressed.

CONCLUSIONS

37    The Federal Magistrate, it is respectfully concluded, erred in not finding that there was a reasonable apprehension of bias. That reasonable apprehension of bias had been “firmly established”. A reasonable bystander would have more than a “vague sense of unease”; he might form the view that there was little if anything the Appellant could say which would shift the Tribunal member from her view that his claims were to be disbelieved.

38    Leave to file a Notice of Contention was refused. The Respondent Minister sought to contend that the Appellant had waived any entitlement to rely upon an argument as to there being a reasonable apprehension of bias by reason of his not raising any complaint with the Tribunal member: Vakauta v Kelly (1989) 167 CLR 568. But no satisfactory explanation was advanced as to why a Notice of Contention had not been filed within 21 days as required by r 36.24 of the Federal Court Rules 2011 (Cth). That time, it may be accepted, can be extended where to do so would occasion no prejudice to an appellant and where an extension of time would be consistent with the proper administration of justice. Nor was any explanation provided as to why the argument as to waiver had not been raised before the Federal Magistrates Court. There is, moreover, the very real prospect that any argument as to waiver would depend upon questions of fact which have not been previously addressed. It is inappropriate to seek to raise by way of a Notice of Contention an argument which is “purely an issue of fact” and which could have been dealt with by evidence: cf. Park v Brothers [2005] HCA 73 at [34] to [35], 80 ALJR 317 at 324 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

39    A conclusion that there has been a reasonable apprehension of bias such that the decision of the Tribunal should be set aside says nothing, of course, as to whether the claims being made by the Appellant should ultimately be accepted.

Associate:

Dated:    25 July 2013

REASONS FOR JUDGMENT

ROBERTSON J

Introduction

40    This appeal is from the judgment of a judge of the Federal Circuit Court given on 26 March 2013 ordering that the application to that Court, filed on 19 September 2012, be dismissed with costs. That application, dated 18 September 2012 had been for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 21 August 2012 affirming the decision not to grant the applicant, to whom I will refer as the appellant, a Protection (Class XA) visa.

41    The Amended Notice of Appeal to this Court from the Federal Circuit Court raised two grounds, as follows:

1.    The Court erred in failing to find conduct of the Second Respondent Tribunal in the course of the hearing gave rise to a reasonable apprehension of bias.

2.    The Court erred in taking into account considerations irrelevant to its inquiry as if the relevant enquiry was actual bias, rather than a reasonable apprehension of the possibility of bias.

In my view, ground 2 added nothing to ground 1, it being accepted by the parties that if this Court came to a different conclusion to the primary judge on the question of a reasonable apprehension of bias then the appeal should be allowed.

Background

42    The statement of decision and reasons by the Tribunal sufficiently identify the background to the appeal.

43    The appellant, a citizen of Nepal, is a single male, born on 14 January 1989, who arrived in Australia on 18 February 2009. He is a Hindu.

44    In summary, the Tribunal said, the appellant said that his father was a businessman and a member of the Communist Party of Nepal (United Marxist Leninist) (CPN(UML)). The appellant said that when he was 19 he had a Muslim girlfriend, called Jasmine, who became pregnant. Jasmine’s father got together his Muslim associates “who changed our affair to political and religious matter”. They attacked the appellant’s family home and damaged their furniture after reporting the affair to the Young Communist League (YCL). Before that time, the appellant and his father, both active members of the CPN(UML), used to give them donations. The YCL physically assaulted his father, his brother, and the appellant. The family could not obtain protection from the government, despite trying to do so on several occasions. The appellant said that the whole Muslim community was against him and made up stories about him which made his life harder. The appellant said he could not return to Nepal because Muslim boys were still throwing drink bottles at his family’s house and the YCL had threatened to kill the appellant if he returned. His government could not help him.

45    The appellant’s adviser stated that the appellant feared persecution as a member of a particular social group because he was Hindu and had a relationship with a Muslim girl which resulted in her pregnancy. He also feared persecution for reason of his political opinion because his father was a businessman and an active member of the CPN(UML). The YCL used to ask his father for donations for the Maoists but his father refused to donate money. The appellant said he was also an active member of the CPN(UML). The YCL sided with the Muslim community against the appellant and his family who were assaulted by the YCL.

46    The appellant’s adviser submitted that the YCL were attempting to use the appellant’s relationship with Jasmine as an opportunity to threaten the family. The appellant was hopeful that Jasmine’s family would forget the past. However, the situation had become worse. The appellant had said that Jasmine had left the village. His parents were not sure where she was. His parents had asked him not to return.

47    At the Tribunal hearing on 7 August 2012, which the appellant attended, when asked what he feared if he returned to Nepal, the appellant said that he feared that the Muslims, the Maoists and the YCL would attack him. He said that the reason for this was the issue he had with Jasmine.

48    At [42], the Tribunal said it was put to the appellant that it might have been expected that a family whose daughter had been dishonoured by becoming pregnant by a man to whom she was not married would be extremely angry. This would be the case whether the girl was Muslim or Hindu or whatever the families’ political opinions were. It would not be surprising if the family had taken reprisals against the appellant and his family.

49    At [74], the Tribunal said it had serious concerns about the appellant’s credibility.

50    At [75], the Tribunal did not accept that the appellant himself was ever targeted by the Maoists/YCL because of his support for the CPN(UML), or for any other reason.

51    At [76], the Tribunal said the appellant was also lacking in credibility in his account of his relationship with the Muslim girl, Jasmine. Amongst other things, the Tribunal found it highly implausible that any event of such scandalous implications in the appellant’s village, involving not only a Hindu and a Muslim, but also near neighbours, would not have created extremely serious problems for the appellant and his family. Yet his parents had continued to live in their village, not far from the family of the allegedly dishonoured girl, without encountering serious harm, and without apparently attempting to offer any reparation to the girl’s family. The Tribunal did not find this credible.

52    The Tribunal did not accept that the appellant was ever involved in a sexual relationship with a Muslim girl, and therefore did not accept that he was ever threatened for this reason by the girl’s family, or by the Maoists/YCL.

53    The Tribunal, at [77], rejected the appellant’s claims that either he or his father had ever been targeted, much less suffered serious harm at the hands of the Maoists.

54    At [78], the Tribunal did not accept that any attack was made on the appellant or any of his family members, or his family home in 2008 or at any other time since his father was injured in the insurgency.

The judgment under appeal

55    One of the grounds of the application for judicial review to the Federal Circuit Court was that the Tribunal made a jurisdictional error in that it made a decision that was affected by a reasonable apprehension of bias.

56    In substance, it is that ground which remains. The other two grounds were not pressed before the Federal Circuit Court.

57    The reasons of the judge of the Federal Circuit Court showed that the complaint of bias was “based upon forthright observations made by the presiding member at hearing.” In summary, the judge held that bias had not been established notwithstanding the observations by the Tribunal member “which went well beyond what was necessary for procedural fairness.”

58    The judge had before him as evidence a transcript of the hearing conducted by the Tribunal with the appellant on 7 August 2012.

59    In considering the claim of reasonable apprehension of bias, the judge said that apprehended bias on the part of an administrative decision-maker will only be found to exist if a fair-minded and properly informed lay observer might think that the decision-maker might not bring a fair and impartial mind to the making of the decision.

60    The appellant conceded before the Federal Circuit Court that it would be reasonable for any Tribunal member to express difficulties with the nature of the claim (the connection between the appellant as a Hindu, making a Muslim girl pregnant, and threats being made by a Maoist related body) and to question the appellant closely as to the claim itself and to its connection with the activities of the YCL. However, the appellant submitted that the Tribunal went far beyond this and exhibited views at the hearing supporting a reasonable apprehension of a closed mind.

61    The judge referred to various parts of the transcript before the Tribunal and to a statement in the transcript of the Tribunal making a “finding”.

62    At the conclusion of the hearing the Tribunal invited comment on a number of matters, but the appellant contended that nothing which the Tribunal said at that point or any invitation to comment could have undone the reasonable apprehension of a fair-minded observer that the Tribunal may not have been open to persuasion. The appellant submitted that much of what the Tribunal member had said at the hearing might indicate to the hypothetical lay observer that the Tribunal had already made up its mind, whether that was true or not.

63    The judge said that the simple proposition by the appellant was that the Tribunal member had made up her mind on the appellant’s claims well before the hearing had concluded, which gave rise to an apprehension that the Tribunal member did not bring an impartial mind to bear upon the review.

64    The judge set out substantial parts of the transcript from about two thirds of the way into the hearing, from page 22 of the transcript onwards. I set out below at [78]-[79] the relevant parts of the transcript of the hearing before the Tribunal.

65    The judge said that it might be thought that by the middle of page 28 of the transcript the Tribunal had made up its mind about the appellant’s claim. But, he said, the Tribunal did not proceed to make an oral decision, as it was entitled to do. After further questioning of the appellant about other aspects of his factual claims the Tribunal member “reviewed her thinking” in terms which the judge set out from pages 31 to 32 of the transcript.

66    The judge said that that passage demonstrated that the Tribunal member, while clearly having a firm opinion about the appellant’s claims, had not closed her mind. She was willing to suspend her judgment on those claims until the appellant had had the opportunity to comment on the obviously very serious concerns that the Tribunal had raised.

67    The Tribunal’s reasons demonstrated, the judge said, that the Tribunal took into account the post-hearing submissions made on the appellant’s behalf. Further, he said, the reasons demonstrated that the “finding” at page 23.8 of the transcript was ultimately of no consequence to the outcome of the review.

68    The judge found that the Tribunal provided a running commentary which was adverse to the appellant’s claims and that, plainly, the Tribunal member disbelieved at the hearing critical aspects of what the appellant was saying. However, those expressions of disbelief did not occur until about two thirds of the way into the hearing. There was no evidence that the Tribunal member went into the hearing with a closed mind. Secondly, the judge said, the Tribunal member’s statements needed to be seen in the context that she was entitled to make an oral decision at the hearing if she was so minded. In other words, if she had decided to make an oral decision she was entitled to (and probably required to) tell the appellant that she had made up her mind. Thirdly, notwithstanding her disbelief, the Tribunal member was willing to give the appellant an opportunity to attempt to persuade her that her concerns were unwarranted. Finally, the Tribunal’s written reasons established that the submission made on behalf of the appellant was taken into account.

69    The judge concluded that on balance he was not persuaded that the transcript established an apprehension of bias. It established, rather, a state of disbelief that was nevertheless open to persuasion. The judge concluded by saying that a fair-minded lay observer, aware of the circumstances, would not apprehend that the Tribunal member’s mind was prejudiced.

The appeal

70    Turning to the appeal to this Court, the appellant submitted that the judge failed to recognise “the partiality against the appellant and in favour of the Muslim girl and her family which might be inferred from the Tribunal’s prior conduct in the course of the hearing.”

71    The appellant submitted that the judge erred firstly in failing to recognise that the Tribunal’s prior conduct would have given rise to an apprehension of bias, and secondly in applying the apprehension of bias test as if actual bias were in issue. The appellant also submitted that the judge took into account irrelevant considerations being that the Tribunal “had not closed her mind”, that a particular expression “was ultimately of no consequence to the review” and the finding that the Tribunal ultimately took into account post-hearing submissions.

72    The two most relevant decisions on which the appellant relied are Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [29]-[31] and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [16]-[19].

73    In the former case the High Court confirmed that even in inquisitorial proceedings the test was one of objective possibility, saying, in applying that test to proceedings of the Tribunal:

[32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor.

The test as so explained is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively: see per McHugh J in Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [68].

74    In NADH of 2001, the Full Court said:

[20] At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.

75    The whole of the transcript of proceedings must be reviewed rather than sentences taken in isolation. The transcript is also to be approached from the perspective that the Tribunal had read the documentary and other material already submitted: as the Tribunal said: “I’ve read your protection visa application and all the documents that you provided to the department and to the tribunal. I’ve also listened to a recording of the interview you had with an officer of the department earlier this year.”

76    Of course, the Tribunal was entitled to test the fact of the claimed relationship with the Muslim girl, including the claimed pregnancy, and the claimed reaction of the girl’s family and whether the violence or threats of violence which were claimed to have occurred to the appellant had a connection to the Convention. The Tribunal was also entitled to test the claimed involvement of the Maoists.

77    That being the context, I turn to the relevant parts of the Tribunal hearing.

78    At page 18 of the transcript, the Tribunal asked “Did you ask her family to marry her?” The following exchange occurred:

No, I did not propose but the problem started after her parents knew about our relationship and then afterwards, we could not speak to each other.

Well, I’m not surprised. Once they knew she was pregnant was hardly the time to ask for her hand in marriage.

79    Later on page 18 of the transcript to page 24 the following was said:

TRIBUNAL: Did she tell you she was pregnant?

INTERPRETER: Yes. Later on I discovered.

TRIBUNAL: When did she tell you?

INTERPRETER: Around December.

TRIBUNAL: What did you do?

INTERPRETER: I didn’t do anything.

TRIBUNAL: What? You didn’t do anything? I can hardly believe what you’re telling me. This is a scandal in your town. An absolute scandal. Here’s a Muslim girl that you’ve made pregnant. I don’t think doing nothing was an option.

INTERPRETER: We try to hide it as far as possible.

TRIBUNAL: What do you mean you tried to hide it? She was pregnant. How can you hide it? What were you going to do?

INTERPRETER: We were ignoring it at that time.

TRIBUNAL: Did you tell your father?

INTERPRETER: Yes. She told her father.

TRIBUNAL: Did you tell your father?

INTERPRETER: Only after her dad brought up the topic, talked about it. My parents, everybody else knew about it.

TRIBUNAL: I can hardly believe you didn’t tell anybody about this and you just did nothing.

INTERPRETER: I was very young and I was scared.

TRIBUNAL: Look, never mind if this had been a Hindu girl, it would have still been scandalous if you had made her pregnant. The family of the girl, even if it had been a Hindu girl, would have been extremely angry.

INTERPRETER: We were very young. She didn’t have any idea; I didn’t have any idea.

TRIBUNAL: Well, she knew she was pregnant. That was enough.

INTERPRETER: I could not bring up the topic to anyone. I was scared.

TRIBUNAL: All right. So her parents eventually discovered it. And what happened then?

INTERPRETER: After that, the problem started to arise.

TRIBUNAL: Well, I’m not a bit surprised. Well, I mean of course there would have been problems. Of course there would have been problems. Think about it. I mean the family of the girl is absolutely disgraced. Here she has a child and she has got no husband. It would have been a great disgrace and the family would have been extremely angry. Do you have any comment to make about this? Because all this stuff about the YCL getting angry and the Muslim community getting angry, any family of a girl in this situation would have been extremely angry.

It’s my understanding that people get absolutely infuriated by inter-caste marriages, never mind women being made pregnant without being married. But I’m not surprised that her family came to your house and were angry with your family. I’m not surprised. What did your father think you should do? Well, you are going to have to do something. Either pay somebody some money or offer to marry the girl or something.

INTERPRETER: The mistake that was happened all of a sudden without knowing and we could not do anything.

TRIBUNAL: I don’t believe it. Your father, you’ve said previously, was a person who was used to mediating between people in disputes. He must have been aware that you had dishonoured this girl and her family and that something would have to be done. And you’re telling me nothing happened. Just nothing happened.

INTERPRETER: After the incident happened, what else could I do? Because there was no way the Muslim would accept a Hindu.

TRIBUNAL: Well, I’m asking you what was done. Some attempt had to be made. I mean you’re telling me that your parents are still living in Nawalparasi. You’re telling me that after all this happened, you continued to live there for another year. She was still there, presumably having a baby. Do you understand the problem here?

INTERPRETER: At that time, if I was accepted by the Muslims and had our marriage happened, everything could have been solved. I could have accepted her and she would have come and lived in my house but that was not the case. The Muslim did not accept us and that’s where the problems arise.

TRIBUNAL: Did you actually go to the family and ask her to marry the daughter? You’ve never said this before.

INTERPRETER: What else could I do? I didn’t do anything.

TRIBUNAL: So you didn’t go and ask to marry the girl? You did nothing.

INTERPRETER: I did nothing.

TRIBUNAL: And your father did nothing? Just continued to live with these neighbours, with the daughter that you had made pregnant?

INTERPRETER: Nothing happened. What can I do?

TRIBUNAL: Look, you’re expecting me to believe that all that happened as a result of you actually getting this young woman pregnant was that there a single incident of an attack on your house by her family. And then after that, everybody went away and your parents stayed living where they were living. You stayed living where you were living for another year before you came to Australia. Nothing happened.

INTERPRETER: I did not stay there one year. I moved around several places.

TRIBUNAL: Well, your parents stayed there.

INTERPRETER: That’s why the Muslim kept on attacking and giving troubles.

TRIBUNAL: They kept on attacking? What do you mean they kept on attacking? What are you talking about?

INTERPRETER: After the incident happened, they gathered all the Muslim community and our house was attacked. And from that time onwards, I have not lived there.

TRIBUNAL: But your parents have and you told me your father has never been physically harmed.

INTERPRETER: But he still has the fear and he has been threatened.

TRIBUNAL: Nothing has happened. I don’t believe this story at all. The reason I don’t believe it is that this is a scandalous incident to occur between neighbours and I would have expected you to know a great deal more about attempts to reconcile the Muslim family and your own after it had occurred. What has happened to the girl?

INTERPRETER: The girl doesn’t live there any longer. She lives somewhere else.

TRIBUNAL: Where does she live?

INTERPRETER: I have no idea.

TRIBUNAL: Where’s the baby?

INTERPRETER: Probably with her. I have no idea.

TRIBUNAL: Where’s her family?

INTERPRETER: Her family is still there next to my house. Not next door.

TRIBUNAL: Nobody has ever attempted to pay support to this woman for your child, for example?

INTERPRETER: That I do not know.

TRIBUNAL: You’ve never attempted to pay support for this child of yours?

INTERPRETER: After that, we never got a chance to meet each other.

TRIBUNAL: You’re not interested in this child of yours?

INTERPRETER: Yes, I do.

TRIBUNAL: You’ve never attempted to find out where the child is? Wouldn’t be hard. The parents are still living a couple of doors away from your family.

INTERPRETER: I called my dad. I talked to my mum. They say they have no idea. What else can I do?

TRIBUNAL: Do you understand that this is very peculiar? That your parents are still living a couple of doors away from the family of the girl that you made pregnant and they don’t seem to have had any serious problems.

INTERPRETER: What else could be worse than what they are facing now?

TRIBUNAL: Well, what are they facing? They’re not facing anything serious enough to move.

INTERPRETER: They are being pestered by the YCL, the Muslim group.

TRIBUNAL: Don’t be silly. I just don’t believe any of that. I don’t believe what you’ve told me about this Muslim girl. You weren’t able to tell me anything in detail about what happened after you found out this girl was pregnant. And I don’t accept that your parents would have continued to have lived a couple of doors away from the house of the family of this girl that you made pregnant without serious problems arising. If there had been serious problems, your parents would have moved away. Yes. Well, your parents would have moved away if they had been serious problems with the YCL. I can’t see why there would have been problems with them. I mean all they’re doing is asking for donations and your father, as far as you know, is not paying them. Nothing has happened.

INTERPRETER: My point is after I have moved from that place, after I no longer lived there, the problems have settled a bit but still threatenings are coming from time to time. But my point is, if I go back, the problem will start again.

TRIBUNAL: Well, I’m sure they would still be angry with you for getting their daughter pregnant, yes, because you clearly ruined the girl. So no wonder they’re angry.

INTERPRETER: I was very young. I could not decide what to do at that time. That was the problem.

TRIBUNAL: Well, I find it’s a personal matter. It doesn’t come within the Convention. If it happened at all, which I doubt. Well, look, you’ve previously said that you continued to live in Nawalparasi up until the time you came to Australia, apart from trips that you made to Kathmandu to arrange for your student visa. Is that true or isn’t it?

INTERPRETER: I did – I lived there but I did not live there permanently. I used to commute between Kathmandu and Nawalparasi from time to time.

TRIBUNAL: Well, if they had been really keen to get you, they would have got you. They would have been on the lookout for you when you came back, surely. Do you have any comment to make about that? If they were so keen to do you harm and you are going to and fro from Nawalparasi to Kathmandu, why wouldn’t they have found you?

INTERPRETER: We – I already had to confront them once where they threw the furniture out of my house.

TRIBUNAL: I think that was the least you could expect, given your behaviour. Look, my point is, any family, regardless of politics or religion, would have been extremely angry about any situation of the kind you describe between yourself and the girl. So it’s not surprising there was this incident in which they expressed their anger. My point about this is that following that incident, nothing has happened to either you or your parents. Whether or not threats had been made, nothing has happened.

Your parents have not been sufficiently worried that they felt that they needed to move, for instance to Kathmandu, to get away from the problems back there in Nawalparasi. Now, look, it was raised with you, as I understand it, in your interview with the department that there were serious doubts about the genuineness of the document that you submitted. Just on face value, this looks as if it has been pasted on to this and then reproduced. There’s line thicknesses. There’s the size of the type and so on that look very doubtful. Now, it would be - - -

INTERPRETER: That can be verified.

TRIBUNAL: Yes. Well, if you want to find some way of verifying it, you go ahead. You need to be aware that there’s a great deal of document fraud in Nepal and this is the kind of information that’s available to the tribunal, saying that anything can be fraudulently produced there. There is a problem in the fact that you only produced this document in any event after you had lodged your protection visa application even though this document is dated January 2008. You could have brought it with you. You could have submitted it but you didn’t. Do you have any comment to make?

After a discussion in the transcript about whether the appellant considered going to India the following appears:

INTERPRETER: If YCL can persecute me there, they can also persecute me across the border because they know people.

TRIBUNAL: I don’t accept that the YCL persecuted you in Nepal. I can see no reason whatsoever why they would. Why would they? Why would they?

INTERPRETER: The same incident, because of Jasmine. Because we have been targeted from long time.

TRIBUNAL: Why would the YCL be interested? Look, they’ve done nothing to your parents. They may ask for donations from your father but he didn’t pay. Your parents haven’t seen it necessary to move from where they’ve lived for ages in your village. You’ve got no profile at all politically. Why would they be interested in you? Look, you have given me no rational explanation as to why the YCL would ally themselves with a Muslim minority. I’ve never heard of such a thing. It simply doesn’t make any sense. Not only does it not make any sense but you’ve given me no evidence that any member of your family has actually been seriously harmed since this single incident back in January 2008.

INTERPRETER: What else can I say now?

TRIBUNAL: Well, I don’t know what you can say because I don’t believe from what you’ve told me that you have been pursued by the YCL or, indeed, by the Muslims – apart from this girl’s family, I – if there was a relationship, then that might have happened, but then if you’re not pursued by the YCL, they are not going to pursue you into India, why would they? You’re just of no interest to them. They had a long time to seriously harm you in Nepal, before you came to Australia, and they didn’t do it.

INTERPRETER: How can you say they wouldn’t do anything to me in India?

TRIBUNAL: Well, because they didn’t do anything to you in Nepal.

INTERPRETER: Because I moved around.

TRIBUNAL: Don’t be silly. You said you kept on coming back to Nawalparasi – you moved between Nawalparasi and Kathmandu – over a whole year. It would not have been hard to wait for you to come back to Nawalparasi if they wanted to get you, particularly since this Muslim family just lives a couple of doors away. You know the real problem about this, Mr [Applicant], is this: you came to Australia in February 2009, and you’ve said you came to Australia to avoid all these problems that you’re attempting to tell me happened to you in Nepal. So you got here, at some point you stopped studying, your student visa was cancelled and you didn’t actually get to apply for a protection visa until over two years after you had arrived here. This delay is not consistent with the behaviour of a person who flees a country in fear of their live [sic]. Do you have any comment to make on that delay?

INTERPRETER: It’s true I came here to study and I was happy. I did not know that I would have to go back to Nepal. I did not know that my visa would be cancelled.

TRIBUNAL: You must have known that your student visa wasn’t permanent.

INTERPRETER: My intentions were to stay here at least five or six years and to get some kind of education certificate. And by that time I would hope things would settle back in Nepal, I would have something in my hand when I went back.

TRIBUNAL: That country has not been settled for decades.

INTERPRETER: I’m not talking about the country, I’m talking about my problems.

TRIBUNAL: Well, your problems didn’t cause you any harm for at least a year after, according to you, your family home was raided. We’ve been over this before. We’ve been over this before. Unless you can tell me something more convincing then [sic] that you moved around between Kathmandu and Nawalparasi and that was why they couldn’t get you, then I don’t find that very convincing.

INTERPRETER: I have nothing further.

TRIBUNAL: Okay. One of the other aspects of this story that makes it less convincing is that it’s very difficult to understand why you didn’t call the police after this incident when the Muslim family actually attempted to damage your house.

INTERPRETER: We did inform the police.

TRIBUNAL: And what did they do?

INTERPRETER: The police came very late after everything was settled down, everybody left.

TRIBUNAL: Why didn’t you send them off to talk to the girl’s family? You knew the reason for this after all, didn’t you, so why didn’t you say to the police, “This is all happening because I got a girl pregnant”?

INTERPRETER: It’s not something to disclose to everyone.

TRIBUNAL: No, I’m not surprised. All right. So after this attack on the house when you didn’t do anything much at all, except call the police – they came, they didn’t find anybody, you didn’t give them any clues. After all this, nothing seems to have happened. You didn’t feel it necessary to call the police again.

INTERPRETER: My brother has been threatened. That’s what has been happening. Even after I came here.

TRIBUNAL: I can’t understand why your brother would be threatened, from what you’ve told me. Why would he be threatened? He didn’t get the girl pregnant. He has got no money, I presume – so why would he be threatened?

INTERPRETER: Just because he’s my brother.

TRIBUNAL: Threatened with what? What have they said?

INTERPRETER: Regarding myself, they said to him, “If your brother comes back, this is what he’s going face.”

TRIBUNAL: Well, has he had phone calls, has he?

INTERPRETER: No, they met him.

TRIBUNAL: Where?

INTERPRETER: In Nawalparasi.

TRIBUNAL: And who were the people who met him?

INTERPRETER: The Muslims.

TRIBUNAL: It’s still the family being annoyed about the girl, I suppose.

INTERPRETER: It wasn’t her dad, mum, but it was other Muslim people.

TRIBUNAL: Well, they might be annoyed on behalf of the family. I’m not surprised.

INTERPRETER: Yes.

TRIBUNAL: So, I mean, you may have a problem because of your relationship with this girl. The point about this is you were not harmed for a year before you left India – Nepal, sorry. And if you were so concerned about going back to Nepal, my suggestion to you is that you should go to India. Thank you.

INTERPRETER: Thank you. Had I been able to stay this [sic] permanently, I was stable, then the problem wouldn’t be there. That’s what I couldn’t do.

TRIBUNAL: Well, you didn’t apply for protection for a couple of years after you got here.

INTERPRETER: I have told you earlier I wanted to study.

TRIBUNAL: You told me earlier that the main reason you left Nepal was that you were in fear of being harmed by the Muslims and the YCL. You know, you didn’t breathe a word of all this being afraid to go back to Nepal until two years after you got here.

INTERPRETER: My main reason to leave Nepal was because of Jasmine. And main reason to come here was to study.

TRIBUNAL: What do you mean your main reason to leave there was because of Jasmine? What do you mean exactly? You were afraid of her family – is that what you’re saying?

INTERPRETER: Yes, Muslim and Wasir.

TRIBUNAL: Look, the Muslim and the Wasir are just thrown in there for effect, aren’t they? I mean, I can’t believe that the Muslims generally in Nepal were going to be particularly involved in this matter, and you have given me no evidence why the YCL should be interested in you.

After some further three pages of transcript the Tribunal member said:

Well, okay. I said to you at the beginning of the hearing that I would let you know of problems that I had with your claims, and I have discussed those problems with you during the hearing. Now, the problems are, for example, that it might have been expected that if, in fact, you had got a girl pregnant, whether or not she was Muslim. Then her family would have been extremely angry with you and your family, and would have attempted to retaliate against you. So this attack you claim occurred on your house in January of 2008 is understandable and explainable in terms of the anger of the girl’s family. Now, from the evidence you’ve given me, it doesn’t seem to me that either you or your father were high profile in the UML as political activists.

So I don’t believe that the Maoist or the YCL would be targetting either you or your father because of your political activities on behalf of the UML. Now, it may be the case that your father has been asked for money by the Maoists because they have a history of [demanding] money from people, but since it appears your father was quite a well-to-do businessman, it’s not surprising they would have attempted to take money from him. However, it is the case, according to your evidence, that your parents have not moved away from Nawalparasi in order to avoid either the demands for money by the YCL, or the revenge that the family of the girl wants to take on your family.

You’ve said to me that your father has never been personally physically harmed, except during the revolution. So it’s clear that neither the YCL nor the Muslims or the girl’s family or whoever, have actually seriously wanted to harm him, or they would have done so. Similarly, on your evidence there was a period of a year when you were going backwards and forwards between Nawalparasi and Kathmandu before you came to Australia, but nothing happened to you. You might have been threatened, but nobody actually did you any harm. You had said that your brother was also told back in Nawalparasi that people were waiting for you to do you harm, and it was the Muslims who told him that. It seems to me that that also could be related to the fact that you injured this girl – girl’s reputation.

I said to you that even – if, in fact, you remained concerned about what might happen to you if you went to Nepal, it seems to me reasonable that you could relocate or get effective protection if you went to India because you can – you have a right to enter there. I’ve also said that the – over two year delay in applying for protection undermines your claims. And when people claim to have fled their countries for fear of being seriously harmed, it is usual for them to apply for protection at the earliest opportunity. Now, is there any comment you would like to make at this stage, or would you like to think about those things and provide something in writing for me within the next, say, couple of weeks?

80    First I note that in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [32] Gleeson CJ said “The constitutional jurisdiction does not exist for the purpose of enabling the judicial branch of government to impose upon the executive branch its ideas of good administration.”

81    Second I note that there was apparently no dispute in the course of the hearing as to the substantial significance of the alleged pregnancy and the circumstances of it from a social and religious point of view in the relevant society in Nepal. There was no suggestion by the appellant in the course of the hearing that such a pregnancy would not have been scandalous. Neither was there any suggestion in the course of the hearing that the parents of the girl would not have been extremely angry or that that anger would not have been shared by the Muslim community in the village. The important issue however was the consequences of these matters.

82    I also note that the Tribunal may well have been trying to make sense, from its perspective, of the claims which the appellant was putting. In other words in evaluating what was said by the Tribunal it is necessary to consider not only at what stage of the hearing the statements were made but also, to the extent possible, the inherent probabilities or improbabilities to which the Tribunal was reacting.

83    It was submitted on behalf of the Minister that what the Tribunal was trying to do was extract from the appellant his explanation for what the Tribunal saw as the implausible aspects of his story and this revealed not a closed mind, but a transparent mind. I do not accept that submission as an answer to the claim of apprehended bias. It ignores the manner in which the hearing was conducted and elides relevance with process.

84    Considering the reasons of the primary judge as a matter of substance, rather than occasional loose wording, there is force in the submission that on a number of occasions his Honour approached the issue by reference to tests applicable to a consideration of a claim for actual bias rather than apprehended bias. This may be seen in the consideration by the primary judge of whether or not the Tribunal had made up its mind, at [33], or closed its mind, at [34], and whether the “finding” that it was a personal matter was of any ultimate significance to the outcome of the review, at [35]. Whether the written submission on behalf of the appellant was in fact taken into account, however, appears to be a matter which would be relevant if, as here, no complaint was made or other steps taken before the Tribunal decided the matter. It was a circumstance which, in the hypothetical exercise, should be taken into account. Contrary to the approach of the primary judge, I would not, with respect, place weight on the fact that the Tribunal need not have reserved its decision and had the authority to give an oral decision. In my view this does not detract from the requirement that, until the time of decision, what the Tribunal says and does must not give rise to a reasonable apprehension of bias as that test has been explained, in relation to the Tribunal, by the High Court in Re Refugee Review Tribunal; Ex parte H.

85    In any event, as I have noted, it was accepted by the parties to the appeal that this Court was in a position to assess for itself the matters on which the appellant relied and, if it disagreed with the conclusion of the primary judge the appeal should be allowed. No discretionary considerations were relied on.

86    Having considered the entirety of the transcript and the surrounding circumstances, including the statutory power being exercised by the Tribunal, my conclusion is that the course of the hearing did give rise to a reasonable apprehension of bias. With respect, I disagree with the conclusion of the primary judge.

87    In short, the testing by the Tribunal of the appellant’s claims and evidence was too frequent and what the Tribunal said was too absolute and definite, taking the form of statements rather than questions. It is one thing to manifest scepticism and test credibility and there is to be attributed to a properly informed lay person knowledge that testing may be vigorous. But it is another thing to state on approximately a dozen occasions in the course of a relatively short hearing of less than two hours and over fewer than 10 pages of the transcript that the Tribunal does not or cannot believe the appellant or words to that effect such as “Don’t be silly.” The Tribunal is exercising a statutory power of great importance to the claimant for refugee status: the language used by the Tribunal in testing the claims must be considered in that light by the properly informed lay person.

88    While there is no clear line between testing and arguing, the relevant part of the course of the hearing took the form of lengthy statements on the part of the Tribunal rebutting what the claimant said rather than testing the material, leading to the reasonable apprehension that the Tribunal was arguing its fixed position. Further, contrary to the view of the primary judge, in my opinion a properly informed lay observer would take into account in coming to the conclusion of apprehended bias the statement by the Tribunal: “Well, I find it’s a personal matter. It doesn’t come within the Convention. If it happened at all, which I doubt.”

89    In so concluding I have made allowance for the fact that this Court had only the transcript to consider. No recording of the hearing before the Tribunal was in evidence and there was no other evidence as to the tone or other circumstances of the hearing before the Tribunal.

90    The Minister relied on VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [81]; Minister for Immigration & Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230 and Galea v Galea (1990) 19 NSWLR 263 at 279-80, 283 for the proposition that occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. The Minister also submitted that the fact that a member is sarcastic, mocking or rude, or displays insensitivity or if he or she otherwise fails to act in conformity with proper standards will not of itself constitute disqualifying bias: VFAB at [81].

91    Dealing with these contentions in turn, no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10-11, in relation to a claim of actual bias:

It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account…

The entirety of the circumstances must be considered.

92    In my opinion, one of the matters to be taken into account by a properly informed lay person is that there is other language available to test, vigorously or otherwise, the claims or evidence of an applicant for refugee status than by saying “I don’t believe it” or “I can’t believe it” while asserting in definite terms how those in a foreign culture would behave.

93    Also to be taken into account as ascribed to the properly informed lay person, in my opinion, is that the consequence of the proceedings being inquisitorial makes the circumstances quite different to civil litigation before a judge, where the proceedings are almost invariably in public, there are parties representing their own interests and those parties are often represented by lawyers. This means that questioning and vigorous questioning by the Tribunal is not to be measured against a standard appropriate to a judge presiding over a public hearing in a court but it also means that what may be taken as vigorous testing by a judge of submissions by counsel in a court is not a valid point of comparison when considering what is said and done by a Tribunal member in relation to a claimant’s statements or other material. Indeed, in my opinion, it is liable to be a distraction to use as a comparator what in a court setting would not give rise to a reasonable apprehension of bias.

94    Galea v Galea (1990) 19 NSWLR 263 concerned a trial over eight days in the Supreme Court where the parties were represented by counsel. The appeal failed, including on the ground of reasonable apprehension of bias on the part of the trial judge. In the circumstances, quite removed from the present, Kirby ACJ said at 279 that the trial judge was making his reaction to the evidence of a witness clear but he was doing so at an advanced stage in a complex trial involving a serious conflict of facts and clashes of testimony. “His Honour was doing no more than to give the appellant (as he earlier did the respondent) the opportunity to know the progress of his thinking and to correct an unfavourable impression if this was the product of passing inattention or inexperience in the giving of evidence.” A judgment of loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation.

95    It was held that the matters did not come to the level where the Court might hold this ground of appeal to be made out. This was a factual conclusion made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions, distinguishing between intervention suggesting that an opinion had been finally reached which could not be altered by further evidence or argument and one which was provisional, put forward to test the evidence and to invite further persuasion.

96    In Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230 Kirby J dismissed an application for orders nisi in respect of a decision of the Tribunal. The applicant relied on perceived or apprehended bias. The application turned on a single interchange involving what was accepted for the purposes of the application as an abrupt answer by the Tribunal, a threatening tone of voice and the member of the Tribunal pointing to the applicant with her finger, immediately after which the hearing proceeded in an apparently regular and temperate way. Justice Kirby refused the application saying that while sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator. Again, this is a case which turns on its own particular facts.

97    In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, Kenny J held that the decision of the Tribunal was vitiated by apprehended bias on the part of the Tribunal member. Unlike the present appeal, her Honour had in evidence and listened to the tapes of the hearing. Also unlike the present case the applicant in that case was assisted by a migration agent in the Tribunal although that agent’s role had been constrained by the Tribunal in the manner described by her Honour.

98    From listening to the tapes, Kenny J said that the member’s aggressive style of questioning was plain enough and the member’s tone of voice conveyed a very real suspicion, even disbelief, about the applicant’s truthfulness. One way or another, Kenny J held, from the beginning of the hearing the member expressed doubt about the applicant’s truthfulness. Justice Kenny referred to the member’s hostile attitude. Her Honour held that in a number of passages the member’s tone indicated, or might reasonably be thought to have indicated, positive disbelief.

99    It would be an error, in my opinion, to judge one set of facts against another and to reason that, because the present case may be thought to have less extreme facts than another it would or should follow that the present case does not show a reasonable apprehension of bias. In each case the question of fact must be addressed: has apprehended bias been made out in that a properly informed lay person might reasonably apprehend that, as a matter of possibility (real and not remote) the Tribunal might not have brought an impartial mind to bear on the decision in that it had, from that perspective, formed the fixed view that the applicant had fabricated his account of events upon which he based his application for a protection visa and thus that his application failed?

100    As to [81] of VFAB v Minister for Immigration and Multicultural and Indigenous Affairs, relied on by the Minister, I have considered this in part in [52] above. The paragraph in VFAB reads:

[81]     Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:

“While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea  (1990) 90 NSWLR 263 at 279-80, 283 .”

As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.

I would add that the paragraph is not to be read as if the qualifiers “occasional”, “momentary” “of itself” and “mere” were not there.

101    There was some suggestion in the Minister’s submissions that it is only where the person whose evidence is in question is being overborne or intimidated that a fair-minded observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [31]. In oral submissions senior counsel for the Minister made it clear that whether a person was overborne or intimidated was merely an indicator of what might form a conclusion of apprehended bias.

102    In my opinion, adapting the language of the High Court in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425, in the present case a properly informed lay person might reasonably apprehend, from the continual challenges to the appellant’s truthfulness and to the plausibility of his account of events and from the terms of those challenges, the possibility (real and not remote) that there was nothing he could say or do to change the Tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa and thus that the Tribunal might not have brought an impartial mind to bear on the decision.

103    The Minister also sought leave to file a Notice of Contention in Court to raise as a new ground that the appellant in effect waived any complaint he might have had based on apprehended bias: Vakauta v Kelly (1989) 167 CLR 568; Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281 at 294. The appellant did not raise any complaint concerning the Tribunal member’s conduct of the hearing or bias during the hearing and the post-hearing submissions made on the appellant’s behalf did not raise any complaint. The appellant acquiesced in the Tribunal member deciding his case and as a result waived his right to later raise a complaint of apprehended bias.

104    I refused leave because resolution of that issue would depend on facts, at a minimum the state of knowledge of the appellant as to his right to object to the Tribunal member deciding his claim on the ground of apprehended bias, which it is not appropriate to explore on appeal.

105    It follows that the appeal should be allowed, with costs, the decision of the Tribunal quashed and the matter remitted to the Tribunal.

Associate:

Dated:    25 July 2013