FEDERAL COURT OF AUSTRALIA

SZEOQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1171

MIGRATION – judicial review – conduct of Tribunal member – bias – apprehended bias arising from conduct of Tribunal member.

Held: Appeal allowed.

Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Re Refugee Review Tribunal and Anor; Ex parte H and Anor (2001) 75 ALJR 982

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

Vakauta v Kelly (1989) 167 CLR 568

SZEOQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 491 OF 2006

COWDROY J

8 september 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The judgment and orders of the Federal Magistrates Court in matter SYG 3095 of 2004 delivered on 23 February 2006 be set aside.

3.                  In lieu thereof:

a.       The Refugee Review Tribunal be joined as a second respondent.

b.      A writ of certiorari issue to quash the decision of the second respondent in matter NO3/46505 handed down on 14 September 2004;

c.       There be an order in the nature of mandamus requiring the second respondent to review according to law the decision of the delegate of the first respondent to refuse a protection visa sought by the applicant.

d.      The first respondent pay the costs of the applicant before the Federal Magistrates Court.

4.                  The first respondent pay the applicant’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant appeals the decision of Nicholls FM delivered on 23 February 2006 which found no jurisdictional error in the decision of the Refugee Review Tribunal delivered on 14 September 2004. The notice of appeal in these proceedings purports to include ‘SZEOQ and Others’ as the appellants in this case. The ‘others’ referred to are not otherwise identified, although I gather from the history of the proceedings that they are the appellant’s wife and child, whose application for a visa was made on the basis that they are immediate family members of a person entitled to a protection visa. Since the outcome of their applications is dependent upon the outcome of the husband’s application, this appeal in substance relates to the claims made by the husband, who I will title ‘the appellant’ for the purposes of these reasons.

2                     The notice of appeal in this Court relies upon two grounds: firstly, that the Tribunal was biased in making its decision; and secondly, that the Tribunal breached s 424A of the Migration Act 1958 (Cth). At the hearing, the appellant clearly indicated that he did not wish to rely upon the second ground. Accordingly, the appeal before this Court relates to the question of whether the Tribunal’s decision contained jurisdictional error on the ground of bias.

BACKGROUND

3                     The appellant is a citizen of Lithuania who arrived in Australia on 17 January 2003. On 28 February 2003 he made an application to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 16 May 2003 a delegate of the first respondent refused the application and on 29 May 2003 the appellant applied for a review of that decision.

4                     In his application for a protection visa the appellant claimed that he is an ethnic Roma/Russian who has suffered discrimination in Lithuania for all of his life. The appellant claimed that he had been unable to find a good job in Lithuania since 1984 and had not been able to attain higher education. As a result, the appellant spent several years working abroad during the 1990s and up to 2002.

5                     Upon his return to Lithuania in July 2002, the appellant claims that his home was raided on three occasions, allegedly because of his Roma ethnicity. The appellant was not arrested or charged. However he was aware that police in Lithuania were known to beat, detain and arbitrarily arrest Roma citizens and to fabricate criminal charges against them. He said that some of his relatives, including his cousin and brother, had been imprisoned on fabricated charges. For this reason, following the raids upon his house he left Lithuania for Australia. He did not complain to the authorities about his treatment because he considered it would serve no purpose.

6                     The Tribunal conducted a hearing with the appellant on 13 April 2004. At the beginning of the hearing, the transcript records the following exchange between the Tribunal and the appellant:

‘Tribunal I see. Now having read your files I understand that you are an ethnic Roma.

Applicant Yes.

Tribunal You do not look like an ethnic Roma to me. You are a very blond man, you have light skin, you have I think very large colored eyes. And so if I walked past you in street I would think that you were perhaps… possibly an ethnic Russian, you even look like a Lithuanian to me.

Applicant Should I reply to that?

Tribunal Oh yes.

Applicant The first thing I wanted to say in reply to that is that my father is a Roma, but my mother is Russian.

Tribunal Well, sir how would the local Lithuanian know that you are half Roma?

Applicant Every time… In all documents… In majority of documents… When you fill the forms, when you go and try to find a job or you apply for a position for work, you have to fill the form, and it’s always the question ‘Who are your parents?’ And in terms of social activities it’s like when you… When I would meet my relatives from my father’s side that’s always obvious and neighbourhood… people in neighbourhood could make their conclusions on the appearance.’

7                     Thereafter the appellant explained that he did not live in a Roma encampment in Vilnius because he was not a full blooded Roma and that mixed marriages were not ‘that welcomed in Roma community as well’. The Tribunal member then said:

‘Tribunal You see, sir, I have a lot of difficulty with your application. You are a man who obtained an education in Lithuania. You have travelled extensively to the United States, Ireland, U.K., Poland … And you come before this Tribunal to state that you need international protection against Lithuania. But since about the year 2000 … or since about 1996 you haven’t lived in Lithuania very much at all! You have only been back there in between visiting other countries; you have spent more time out of Lithuania than you have lived in Lithuania!’

8                     Later in the hearing, the Tribunal member asked why the police would be particularly interested in the appellant and his brothers. The following exchange occurred:

‘Applicant I don’t think it was … that the police were interested particularly in me and my brothers as such. It was a general action against Roma people. And we were the members of it, we were the target of it, because we are Roma. So that was a normal act performed by police against Roma ethnicity community.’

Tribunal I don’t believe you. And the reason, Sir, that I don’t believe you is that you live in an ordinary street in Vilnius. And I am stunned that you would think that the Lithuanian police had so much time on their hands that they pursued people of mixed Roma ethnicity and persecuted them merely because they were a mixed Roma ethnicity.’

9                     The appellant was then asked whether he had complained of his treatment to anyone. The transcript records as follows:

‘Applicant I had very unfortunate experience with that, because the first question … When you have things like that happening to you, your first question is ‘Where to go?’ And ... To go and complain. You normally go to police to complain to what is happening to you. But police, sort of, goes … But from police you go to ‘procuratura’, which is like internal affaires [sic]. And then you go to the state level. So there are 3 levels. And how can you go there if the first level is not responding? And I had very sad experience with my brother’s situation, who had been arrested. And we went to 3 different lawyers, tried to get their justice. But as soon as they would find out that police was putting their criminal charge against them… him, they would refuse to take the case, because they were really scared for their future, for their reputation… Sorry, not reputation – interpreter’s mistake – for the outcome of the case.

‘Tribunal So, sir, what you are telling me is that you didn’t go and complain to either the police or the prosecutor’s office, or the (unclear).

Applicant I didn’t see… I couldn’t see a sense in going to police because they would go nowhere. I wouldn’t get the outcome. Because what was happening in Lithuania at that stage, the courts were so corrupted, there was no one case in terms of national… nationality being … Not a case in terms of national… In terms of ethnicity of Roma people being persecuted. Not one case was in the court. Because government is hiding everything, all evidence about this problem.’

Tribunal Well, sir, I can’t agree with you. And there is a reason that I can’t agree with you. You see, in Lithuania, it is now a democratic system with its judiciary and with a complaints mechanism for people if the authorities have exceeded their power … [The Tribunal member referred to various sources of country information.] … So, you see, sir, the independent evidence doesn’t support what you are saying. And you made no attempt to report the behaviour that occurred. And, sir, since 2002, the Lithuanian government has introduced a program of increasing the education and benefit of Roma communities living in encampments. And you see, sir, had there been such attacks by the police on ethnic Roma living in … outside of the encampments, in ordinary streets, the Roma Rights Centre and the Roma Lobby Group would have reported that. Because there is so much information! It’s there! There is so many reports done! I can get report after report, and it doesn’t tell me what you are telling me.’

10                  Thereafter there was a further exchange wherein the appellant explained the fear held by persons of ethnic Roma origin against the state. He said:

‘But there is a real fear. And, unfortunately, it’s such a strong fear, which is again, the fear of the State; it is basically engraved in Roma people. And all of this, it’s like I … Nobody would lodge their complaints because people don’t believe they will get somewhere. It’s like everything goes through the sand.’

The Tribunal member responded:

‘But, sir, you never tested it! You never tested it!

11                  The following exchange then occurred:

‘Applicant This is suicidal! You can go to Vilnius and stop any Roma person walking along the street and ask him: “How is your life”. And he will never tell you anything because he doesn’t know you, because he’s not sure where you are coming from.

Tribunal Sir, you walk down the street in Vilnius and nobody would know you are a Roma. You are blond, you have fair hair, you have fair skin. Roma tend to be dark hair and dark skin. And you, sir, look like a classic ethnic Russian, or even a Lithuanian. So I ask myself: “How would somebody identify this person as a Roma?” You have a Russian name, you look like a Russian.

Applicant I was persecuted. I was persecuted by police. And I never mentioned that somebody on the street offended me because of my looks. I was persecuted by police, which knows exactly who I am.

Tribunal Sir, you have travelled in and out of Lithuania for many years. Nothing happened to you. Nothing happened to you.

Applicant What do you meant?

Tribunal Oh yes, your advisor and his so-what comment.

Advisor I got lots of things to say.

Tribunal Nothing happened to you. You got an education in Lithuania, you have citizenship in Lithuania. And you might not have a job, sir, but it is very, very difficult for Lithuanians to get work. Economy is lousy, and has been lousy even under Russian times. And after independence … After independence, sir, it became even worse. And even educated people were unable to find job. And so people leaved Lithuania in order to obtain work in any way that they could. And you, sir, are a typical example, from where I can see, of a Lithuanian, who has left Lithuania, for work purposes. You see, sir, young educated Lithuanians, even with university degrees, cannot get jobs. And what do these people do? The [sic] work, trade. The [sic] go out of Lithuania and they buy things, and they bring them back, and they try to sell. And they try to put money in their families now.’

12                  Subsequently, the appellant’s migration advisor addressed the Tribunal. The exchange between the Tribunal member and the advisor was clearly heated, and began as follows:

‘Advisor I am very surprised that you provided so many misleading information to the applicant.

Tribunal Misleading? And what information have I provided that is misleading? I think I’ll … (unclear)424Ato you since it’s misleading.

Advisor Alright. Because … First of all I just would like to note that in point of fact you didn’t give the applicant chance to comment on all your information.

Tribunal Well, perhaps I will give the applicant the chance. I will …

Advisor Can I finish, please? Can I finish, please?

Tribunal Look, Mr Volonskis...’

13                  The proceedings continued in a similar vein. However, the Tribunal member agreed to provide the country information to the appellant and give him an opportunity to respond, and to provide any further submissions. A letter was sent by the Tribunal on 15 April 2004 and a reply was sent by the applicant on 5 May 2004.

14                  On 14 September 2004, the Tribunal handed down its decision which concluded that the appellant was not entitled to a protection visa. In its reasons for decision, the Tribunal stated as follows:

‘Despite my reservations and the applicant’s own admission at hearing he did not resemble a Roma, I give the applicant the benefit of the doubt and accept he is an ethnic Roma/Russian.’

15                  The Tribunal accepted that a lack of educational opportunity impacts negatively on the employment prospects of Roma communities, and that the level of unemployment among Roma was believed to be far higher than the national average. The Tribunal also noted that the persistence of negative stereotypes about Roma and the general economic hardship in Lithuania caused popular resentment against measures to improve the situation of Roma as a disadvantaged group. However the reasons for decision also stated:

‘The information before me does not suggest that only ethnic Roma (3000 population) or ethnic Russians comprise the unemployed or that they are denied a capacity to earn a livelihood of any kind or suffer significant economic hardship or denial of access to basic services.’

16                  The Tribunal accepted that there were instances of police harassment of Roma in Lithuania, but said that there was not evidence to suggest that Roma living outside encampments were targeted. The Tribunal noted that the appellant was not arrested or charged with an offence after numerous raids. It was of the opinion that accusing a person of involvement in criminal activity and conducting raids did not amount to persecution. It noted that the appellant did not suffer any significant physical harassment or ill-treatment and that there was no threat to his life or liberty. Further, the Tribunal said that there could not be a failure of State protection in circumstances where the applicant had not reported the police behaviour.

17                  The Tribunal also considered whether the appellant was at risk of persecution on the basis of his Russian ethnicity, and concluded that he was not. Accordingly, the Tribunal decided that the appellant was not entitled to a protection visa.

APPEAL TO FEDERAL MAGISTRATES COURT

18                  On 15 October 2004 the appellants filed an application under s 39B of the Judiciary Act 1903 (Cth) claiming jurisdictional error. The application raised numerous issues for consideration by the Federal Magistrates Court. The issue of bias was not raised in the application to the Federal Magistrates Court, but it was raised in the appellant’s submissions filed in that Court. Nicholls FM noted that the transcript of the hearing before the Tribunal gave rise to some concern and accordingly he allowed the appellant a further opportunity to provide evidence in support of his allegation of bias. The appellant subsequently filed an affidavit in the Federal Magistrates Court in which he directly raised the conduct of the Tribunal member at the hearing as the basis of his claim for bias. In that affidavit, the appellant deposed:

‘During the course of the hearing held on 13 April 2004 the presiding member was repeatedly using insulting gestures etc. This, together with her untrue statements related to my appearance (she stated that I was a blond man, with fair skin etc), lack of independent evidence (which is also untrue) and baseless allegations regarding my credibility, resulted in my lacking of ability to address matters relevant to my application for a protection visa. I was confused, frustrated and had difficulties responding to the presiding member’s untrue accounts.’

19                  Nicholls FM noted that an allegation of bias, whether actual or apprehended, must be supported by evidence and that it was a serious matter which required evidence of ‘prejudgement’. His Honour observed:

‘The Tribunal’s exchange with the applicants’ advisor beginning at page 9 of the Transcript (T9) of the hearing is demonstrative of a poor example of a Tribunal hearing.’

20                  However, his Honour considered that the transcript was not sufficient to make out a complaint of bad faith or bias. His Honour then considered the statements of the Tribunal member relating to the appellant’s appearance. He found that the Tribunal’s initial questioning of the appellant was immaterial because the Tribunal ultimately accepted the appellant’s ethnicity and thereafter dealt with the claims of the appellant in that context.

21                  The appellant had also alleged that the Tribunal’s method of providing information was ‘very unfair’ and that the ‘presiding member told lies’. Such a claim apparently arose from the fact that the Tribunal indicated that it had not been able to find any independent evidence to suggest that Lithuanian police targeted Roma. Nicholls FM held that this complaint was not sufficient to establish bad faith or bias on the part of the Tribunal.

FINDINGS

22                  The principles relating to bias are well-established. Bias will be made out if it shown that the Tribunal member was actually biased, or if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Johnson v Johnson (2000) 201 CLR 488 at [11]; Vakauta v Kelly (1989) 167 CLR 568 at 575; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-63.

23                  The principles relating to bias have been considered by the Full Court of the Federal Court specifically in relation to migration appeals in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [42]ff. At [43]-[48], the Court observed:

‘First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].

The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.

Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].

Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].

Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 (“SCAZ”).’

24                  Proceedings before an inquisitorial tribunal are necessarily of a different nature to proceedings before a Court: see Re Refugee Review Tribunal and Anor; Ex parte H and Anor (2001) 75 ALJR 982 at [5]; Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at [4]. The Tribunal member in the present case was entitled to, and indeed obliged to, put adverse information to an application for a protection visa. As noted by Nicholls FM:

‘It is quite understandable that some apparent rejection of a claim (particularly, and even, as it may derive from a considered and reasoned but nonetheless adverse view of the applicant’s credibility) can be seen as an indicator of bias or bad faith at the hearing … However, in many ways a Tribunal member who puts any such adverse views to an applicant at a hearing fulfils that worthwhile objective of putting the applicant on notice of potentially adverse findings and thereby giving the applicant the opportunity to comment.’

25                  However, in my opinion, the conduct of the Tribunal member went well beyond simply putting adverse views to the appellant. From the very beginning of the hearing, the Tribunal member expressed profound disbelief in the appellant’s claims. She expressed her opinions about the merits of the appellant’s claim vehemently. She asked questions of the appellant in an aggressive manner. Her responses to his answers were frequently dismissive and almost suggest contempt for the appellant’s claim. As noted above, at one point she expressed the view that he was ‘a typical example’ of a Lithuanian who had left Lithuania for work purposes.

26                  The statements by the Tribunal member evincing her disbelief in the appellant’s claims continued throughout the hearing. Subsequently, as remarked upon by Nicholls FM, the hearing descended into almost a slanging match between the Tribunal member and the appellant’s migration advisor.

27                  I do not consider that the above conduct establishes actual bias on the part of the Tribunal member, especially when considering the reasons which were ultimately given for the decision. The question, therefore, is whether the conduct of the Tribunal member was such as to give rise to an apprehension of bias in a fair-minded lay observer.

28                  The first respondent submits that a vigorous exchange with the appellant’s advisor does not indicate that the Tribunal has a closed mind so as to constitute an appearance of bias. It refers to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], where Gleeson CJ and Gummow J stated:

‘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.’

29                  In my opinion, the transcript reveals that the hearing went beyond a mere ‘vigorous exchange’. The Tribunal member’s behaviour would give rise to an apprehension in a fair-minded lay observer that the Tribunal had prejudged the appellant’s claim. Tribunal members frequently are able to put adverse views to applicants for protection visas in a professional and objective manner such that no apprehension of bias could arise. This was clearly not the manner in which it was done in the present Tribunal hearing.

30                  In making this finding, I note the observations of the High Court in Ex parte H, a migration case which involved similar allegations of bias on the basis of the conduct of the Tribunal member. In that case, the Court observed (at [30]-[32]):

‘Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay 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.

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. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.’

31                  I am of the opinion that the conduct of the Tribunal member at the hearing was such that there was a real possibility that a fair-minded lay observer would believe that whatever the appellant had told the Tribunal member, she would not have believed that the appellant had a genuine claim for a protection visa.

32                  Nicholls FM placed reliance upon the fact that, in respect of the appellant’s Roma ethnicity, the Tribunal had given the appellant the benefit of the doubt and accepted that he was an ethnic Roma/Russian. There are two answers to this statement. Firstly, the comment that the appellant did not have the appearance of an ethnic Roma was not the only statement of the Tribunal member which might be seen to suggest a prejudgment of the appellant’s case. Rather, an apprehension of bias would have arisen from the cumulative effect of statements made throughout the hearing. Secondly, and more importantly, the fact that the Tribunal ultimately accepted that the appellant was an ethnic Roma cannot repair the flaws in the conduct of the hearing. Regardless of the findings made by the Tribunal member, her conduct at the hearing is such that it would give rise to a reasonable apprehension of bias.

33                  For these reasons, I am satisfied that Nicholls FM erred in finding that the Tribunal decision was not affected by apprehended bias. Accordingly the appellant should succeed and that the decision of the Tribunal must be set aside.

Associate:

Dated: 15 September 2006