FEDERAL COURT OF AUSTRALIA

SZKCS v Minister for Immigration and Citizenship No 2 [2008] FCA 1511

Migration Act 1958 (Cth)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

SRFB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 252

SZKCS v Minister for Immigration & Anor [2008] FMCA 290

SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578; [2007] FCAFC 198

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Minister for Immigration and Multicultural Affairs: ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23

SRFB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 252

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14

SZKCS and SZKCT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 484 of 2008

REEVES J

10 OCTOBER 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against a judgment of Federal Magistrate Scarlett delivered on 19 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was delivered on 4 January 2008 and affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse to grant a protection visa to the appellants.

2                     This appeal raises two issues:

(a)      whether the Tribunal complied with s 424A of the Migration Act 1958 (Cth) (‘the Act’) in relation to certain information it relied upon to reject the appellant’s application for review; and

(b)      whether the Tribunal was guilty of apprehended bias in its treatment of the appellant’s application for review.

BACKGROUND – SUMMARY OF FACTS

3                     The appellants are a mother and daughter who are citizens of Nepal (Damak), who came to Australia for a family visit on a visitor’s visa on 13 April 2006.  One month later, on 16 May 2006, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship.  The appellant’s husband remains in Nepal.  A delegate of the Minister refused the application for a protection visa on 7 August 2006 and the appellant subsequently applied to the Tribunal for a review of that decision.

4                     The appellant claimed to fear religious, social and imputed political persecution in Nepal on several bases, which may be summarised as follows:

·                    As a Christian she feared persecution from Maoists, the government and (rural) Nepalese society generally.  The appellant claimed that she had been threatened by members of the Nepalese Army and by her extended family for her evangelist activities (which are outlawed under the Nepalese Constitution);

·                    She and her husband had suffered Maoist harassment and extortion, forcing them to sell several of their businesses to enable them to pay ‘donations’;

·                    The Nepalese Army viewed her husband and her as Maoist collaborators, primarily because her husband’s stolen car was used by Maoists in a confrontation with the Army in 2005;

·                    Her husband was kidnapped when his car was stolen and upon his release he had to go “into hiding”, from approximately July 2005.  She claimed he remained “in hiding” somewhere in the region of Katmandu.

·                    She was detained by Army officers, apparently due to her activities spreading Christianity, or due to the use of her husband’s car, or both.  The same Army officers molested and interrogated her, returning again to harass her and attempting to molest her in March 2006, at which time she left Damak for Katmandu and, later, Sydney.

5                     The appellant attended a hearing before the Tribunal on 9 November 2006.  This appeal is largely directed to the Tribunal’s conduct at that hearing.  First, the appellant says she arranged for two witnesses to attend the hearing to give evidence (her brother and the Pastor of her Sydney church, Pastor Boyd), but their evidence was not taken.  Secondly, the appellant says two items of information were put to her for comment without prior notice at that hearing.  Then the same items of information were put to her for comment after the hearing in the s 424A letter the Tribunal sent to her on 13 November 2006. 

6                     The two items of information and the significance of each was described in the Federal Magistrate’s reasons ([2008] FMCA 290 at [20] as follows:

(a)       A letter from the appellant’s husband dated 15 January 2006 given in support of a visitor’s visa application which gave as the husband’s residential address and telephone number the home address and telephone number of the appellant in ward 13 Damak Jhapa.  That information was considered significant because it appeared to contradict the claim that the appellant’s husband had disappeared and was in hiding at the relevant time.

(b)       Information from the appellant’s application to visit Australia as a sponsored family visitor dated 10 October 2005, being a statement of the appellant that her purpose of travel to Australia was to attend the birth of the first child of her brother and sister-in-law.  That information was considered significant because it was evidence of the purpose of leaving Nepal other than that stated in the protection visa application.

THE TRIBUNAL’S decision

7                     In its decision, the Tribunal accepted certain aspects of the appellant’s claims, but rejected her application on credibility grounds. The Tribunal accepted that the appellant held a subjective fear of harm in Nepal; that the appellant and her husband were small business owners and therefore members of a class opposed by Nepalese Maoists; and that the appellant was an evangelist Christian.  However, the Tribunal did not believe that the appellant had been persecuted as she claimed and therefore it found that she did not have a well-founded fear of persecution in Nepal for a Convention-related reason.  Accordingly, it affirmed the delegate’s decision.

8                     In relation to the claim that the appellant’s husband was in hiding, the Tribunal found that the appellant was persistently vague on the details and found her response to its query about the husband’s letter dated 15 January 2006 to be unsatisfactory.  The Tribunal concluded that the appellant’s “evidence is that she remained in Damak well into 2006, and still the Maoists did nothing significant to her, and consequently the Tribunal is confident that the Maoists in Nepal were not targeting her for persecution, and would not do so in the reasonably foreseeable future; and as to the [appellant’s] husband, the Tribunal dismisses, as a concoction, the claim about his having gone into hiding”. 

THE FEDERAL MAGISTRATE’S DECISION

9                     The grounds of review relied upon before Federal Magistrate Scarlett were solely directed to an alleged failure by the Tribunal to comply with s 424A of the Act, in not sending the appellant the s 424A letter dated 13 November 2006 prior to the Tribunal hearing.

10                  The Federal Magistrate held that the Tribunal was not obliged to send the s 424A letter prior to the hearing, relying upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (‘SAAP’) and SRFB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 252.  His Honour concluded at [40] that “In many cases before this Court such letters have been sent out after the hearing drawing attention to the information as seen in the light of the applicant’s evidence before the Tribunal at the hearing.  If it were necessary to hold a further hearing after the sending of a s.424A letter and either the receipt of the applicant’s comments in reply or the applicant declining to comment further, it would lead in my mind to an absurd result which was not intended by the legislature”.

GROUNDS OF THE PRESENT APPEAL

11                  At the hearing before me on 24 July 2008, I granted leave to the appellant to file an amended notice of appeal (see [2008] FCA 1489).  The grounds of that amended notice of appeal are:

1.                  The Tribunal failed to comply with the provisions of the Migration Act 1958 (Cth)     s 424A in that it required the appellant to orally address matters arising from information caught by the section before giving the appellant notice of the information, explain why it was relevant and give her an opportunity to respond to it.

2.                  The Tribunal applied the wrong test by only looking at the official legal position in respect of the appellant’s claims rather than the actual position faced by the appellant.

3.                  The Tribunal’s decision was affected by apprehended bias in that it closed its mind to evidence which the applicant brought, and desired to bring, at the hearing.

12                  At that hearing, Mr Turner, counsel for the appellant, advised that the second ground of appeal was not pressed.  He also said that ground 1 was similar to that raised before the Federal Magistrate but ground 3 was completely new.  It necessarily follows that ground 3 was not raised before the Federal Magistrate which means that the appellant cannot point to any error in his Honour’s judgement related to it. This was compounded by the fact that as this appeal progressed, it became apparent that ground 3 had become the main focus of it.

CONTENTIONS

13                  At the adjourned hearing of the appeal before me on 11 August 2008, Mr Turner submitted, in summary, that:

(a)               The Tribunal put the husband’s letter dated 15 January 2006 and the statements in her visitor’s visa application to the appellant at the hearing and asked her to comment on them.  The Tribunal then relied, in part, upon her responses to reject the appellant’s application for review.  In doing this, the Tribunal failed to comply with s 424A because both items of information should have been put to the appellant in writing prior to the hearing under that section.  The Tribunal did not, and could not, remedy this breach by subsequently putting these items of information to the appellant in its   s 424A letter of 13 November 2006.

(b)               The Tribunal displayed apprehended bias at the hearing on 9 November 2006 and in its decision by:

·                    Failing to take evidence from the appellant’s witnesses - her brother and Pastor Boyd;

·                    Putting the two items of information (above) to the appellant at the hearing without prior notice and asking her to comment on them;

·                    Misdescribing the husband’s letter dated 15 January 2006 as being addressed to the High Commission in New Delhi and thereby misleading the appellant into believing there may be a second letter of which she had no knowledge.

·                     Using unduly robust language during the hearing; and

·                    Irrationally ignoring some evidence and giving other evidence no weight and thereby demonstrating a closed mind to the appellant’s application.

CONSIDERATION

Ground 1 – the alleged failure to comply with s 424A

14                  In relation to the first ground of appeal, the appellant is essentially claiming that the Tribunal should have given the notice under s 424A in relation to the two items of information before it raised them with the appellant at the s 425 hearing.  In my view, this ground of appeal must be rejected.  There is clear authority against imposing such a temporal requirement under s 424A: see SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578; [2007] FCAFC 198 at [34] and [36] relying upon SAAP. I have dealt below with the related question whether, in the circumstances, it was unfair to the appellant for the Tribunal to raise the two items of information with her without first giving her notice of them: see SRFB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 252 at [50].

Ground 3 – the allegation of apprehended bias

15                  The third ground of appeal cannot be disposed of so briefly.  It raises an allegation of apprehended bias in the sense that a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct concerned might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided: see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [27] and [28].  It is clear on the authorities that an allegation of this kind must be distinctly made and proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J, and Minister for Immigration and Multicultural Affairs: ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at [90] per Kirby J.

16                  In this case, the appellant relies upon a number of aspects of the conduct of the hearing by the Tribunal and the Tribunal’s decision, to attempt to establish this allegation of apprehended bias. 

Failure to take evidence orally from two witnesses

17                  First, she says that the Tribunal failed to take evidence from two witnesses she had arranged to attend the hearing – her brother and Pastor Boyd.  It is clear from the transcript that soon after the hearing began, the appellant’s adviser raised the question of Pastor Boyd giving evidence with the Tribunal member and said “ … that you might wish to hear from him.”  The Tribunal member responded: “I might, yes and you can remind me that I said that I might wish to hear from him but what I’ll do is I’ll ask everybody else to leave the room at this stage in case I need to call anybody and just hang close in the waiting room if you could please.”  A short time later, after discussing the issue of the persecution of Christians in Nepal, the following exchange occurred:

THE ADVISER:          And I also understand – sorry member, that that is precisely what Pastor Boyd might be able to assist you with this morning.  Apparently he’s got some really up to date information on the very issue.

THE MEMBER:          Well if he’s got documents he should send them to me.

THE ADVISER:          He doesn’t have documents.  I asked him that.

THE MEMBER:          Does he have anecdotes from people?

THE ADVISER:          And people have used – actually collected information, he tells me – I don’t want to do but he tells me basically some of this information is unlikely to make it into formal written documents because of such is the fear apparently.

THE MEMBER:          Okay, I am happy for Mr Boyd to tell me honestly what he’s heard.  I’m quite confident that anything he’ll tell me will honestly come from him and I’ll analyse the information that he has received and passed on to me.  Whether we take it orally or in written form we’ll think about further down the track.

THE ADVISER:          Yes, certainly, I’m quite happy to provide it in written form if that’s needed and if anything else comes up I will provide it. (emphasis added)

18                  At the conclusion of the hearing, the Tribunal member said: “Okay. Well that’s all at this stage, I’ll leave it to you to make written submissions.  You can make any written submissions of course up until the handing down of [the] matter but there will be a statutory period in which to respond to certain pieces of information that I’ll put in a letter to your client.  Okay, and the same goes for the evidence of Mr Boyd and any other relative or anyone else.  Okay, they can make submissions at any stage.  Are there any questions that you think I need to put to your client orally at this point or would you rather look at the evidence and the tapes and make your written statement?” (emphasis added)

19                  Unfortunately, the next page of the transcript is missing and no-one has been able to locate a copy of it.  However, it was common ground before me, consistent with the earlier exchange between the Tribunal member and the appellant’s adviser, that the appellant’s adviser did not object to the course proposed by the Tribunal member i.e. that the evidence of Pastor Boyd and the brother be provided in written form.  Given these circumstances, I do not consider that the failure of the Tribunal member to take this evidence orally at the hearing constitutes evidence of apprehended bias on the part of the Tribunal.

Raising two items of information with the appellant at the hearing without notice

20                  Secondly, the appellant relies upon the way in which the Tribunal member dealt with two items of information at the hearing. The thrust of this submission was that it was unfair to the appellant for the Tribunal to raise these two items of information with her at the hearing without first giving her notice of them under s 424A. In doing so, it was claimed that the Tribunal was effectively “ambushing” the appellant with this information. This conduct was said to demonstrate apprehended bias on the part of the Tribunal.

21                  The first item of information was the letter from the appellant’s husband dated 15 January 2006.  This item of information was raised at the hearing in the following way.  Early in the hearing, the Tribunal member asked the appellant a series of questions about her claims that her husband was in hiding, including, when he went into hiding; whether he had had any contact with the appellant – she said “about two or three times” by phone; and if she knew where he was – she said “in Katmandu either at his relatives’ place or perhaps in a hotel”.  After this series of questions, the following exchange occurred between the Tribunal member and the appellant:

MEMBER:                  Okay, well I have some information I must disclose to you here.  I have a letter from your husband to the High Commission in New Delhi telling them that he gives permission for you to bring your daughter to Australia and it’s dated 15 January 2006 and it tells the High Commission that he’s living Dummuk City, Dummuk Municipality in Jaffa.  Okay and this was submitted to the High Commission, it was a truthful and … evidence that your husband was willing for you to travel to Australia with the daughter.  I would have to         suggest here that it’s quite possible that this information contradicts your claims about your husband being missing and being at other addresses and you not knowing where he is or not being able to locate him for things that you need him for.

Now, there’s two ways we can respond to this but you can say something about it now if you wish, you can certainly say something in writing because I must put this to you in a letter and give you a statutory period in which to reply but that in front of you, I’m not stopping you from telling me why that letter exists at this point.  I am interested in why that letter was written from the place if your husband is supposed to be missing somewhere where no one can locate him.

INTERPRETER:         Who has – could you tell who is supposed to     have written this letter?

MEMBER:                  Your husband in Jaffa.  It’s a letter authorising you to take your child to Australian.  It’s a letter to the High Commission.  It’s written in January 2006, it’s saying, ‘I, the husband of *****’, that’s you, okay, ‘authorise her to take our child to Australia for a holiday’ and I’m putting to you that it seems odd that your husband is writing from an address in Jaffa as he says he is if you’re telling me that for all that period of nine months or 10 months you didn’t know where he was, no one knew where he was, could contact him and the implications of me giving weight to this letter might be that I give no weight to your claims about the kidnap and the theft and all of that stuff and is there something you want to say about it now?

INTERPRETER:          At this point of time I don’t really want …

MEMBER:                  Why not?

INTERPRETER:          Because I really am not aware of this letter.

MEMBER:                  Well you need a letter like that to get your child out of Nepal to Australia, the Australian officials will not issue your daughter with a visa unless there’s authority from your husband.  Did it never cross your mind, how can I get my daughter out of Nepal if I don’t have my husband’s permission?

INTERPRETER:          At that point I did not know.

MEMBER:                  Well, I’ll put it to you in writing.  Okay.  I’m interested that you can’t give me an explanation for this letter at this stage and you’re on notice that I have to be critical and sceptical about the evidence that you’ve given me so far because this – it doesn’t seem to sit with that this letter is about, what it says about your husband.  Let’s get back to something else though.  Why would the authorities think he’s a Maoist if they also know he’s a Christian?

22                  The second item of information was the statements the appellant made in her application for a visitor’s visa.  This item of information was raised at the hearing in the following way.  After asking the appellant a series of questions about her activities in spreading Christianity in Nepal and actions taken by some Army officers in relation to those activities, the following exchange occurred:

INTERPRETER:         When they took me to the army camp and then when I came back from the army camp, it was then that I decided it was not right for me to stay here.

MEMBER:                  When was that?

INTERPRETER:         In 2005 and then it was then that I contacted my brother to inquire about whether it is possible that I could come to Australia.

MEMBER:                  When did you contact your brother?

INTERPRETER:         Just after returning back from the army camp.

MEMBER:                  Okay, let’s look at your statement here that you’ve given to the Immigration Department.  Okay, we can see that after July 2005, we’ve got all this discussion and then you say your brother, Arwan and one of your relatives in Kathmandu are making process for you to come to Australia.  You were preparing to leave Kathmandu to come to Australia and then this happened.  Wait for it.  But did it happen because the army is acting on stuff that they got concerned about eight months earlier?

INTERPRETER:         Eight months?

MEMBER:                  Yes.  They’ve seen your house in or soon after July 2005, they’ve seen that you’re a Christian and they come back and worry you about it eight months later and they’ve accused you of spreading Christianity in your home which is against the law. …

23                  Thereafter, the Tribunal put a number of other aspects of the appellant’s statements to her and suggested that they contradicted the evidence she had given to the Tribunal including her claims about having established a network of Christian fellowship groups; how long her mother had been a Christian; and whether or not her husband was a Christian before they married.

24                  As these excerpts from the transcript of the Tribunal hearing serve to demonstrate, before the Tribunal raised either item of information with the appellant, it first asked her a series of questions about the issues to which each item of information related. From my reading of the transcript, those questions were directed to establishing exactly what the appellant’s position was about those issues. The appellant’s position was obviously important in determining whether either item of information was of any significance to the appellant’s claims. Specifically, whether either item of information contradicted or supported the appellant’s claims.

25                  If the Tribunal had reached a conclusion that either item of information contradicted her claims, before clearly establishing what those claims were, that conduct may itself have been evidence of prejudgment, and therefore bias: see SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578; [2007] FCAFC 198 at [36]. In my view there is no evidence of such prejudgment from this transcript, indeed the lead-up questioning indicates the contrary i.e. the Tribunal had not already formed a view about the significance of either item of information.   

26                  Once the Tribunal clearly established what the appellant’s claims were and decided that either or both of the items of information may be significant in that they appeared to contradict some of those claims, I do not consider it was then obliged to cease any further questioning on that issue and give notice of the information and its significance in a s 424A notice. The Full Court made it quite clear in SZKLG that the timing of a s 424A notice should be left to the Tribunal.

27                  Further, I do not consider it was unfair for the Tribunal to proceed to put the items of information to the appellant without notice and give her an opportunity to comment on them. If there was some simple explanation for the apparent contradiction, it was in the appellant’s interest to give the explanation and remove it as an issue at the earliest opportunity.

28                  If she did not have an explanation, or did not wish to give one at that time, I do not consider it was unfair for the Tribunal member to put her on notice that her failure to do so meant that he had to “be critical and sceptical” about her evidence. To the contrary, I consider the Tribunal was properly discharging its function at the hearing of testing the appellant’s claims and clearly confronting her with any perceived inconsistencies in them: see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [30].

29                  In any event, by raising these concerns with the appellant at the hearing, the Tribunal was merely stating orally in different language what he eventually said in writing in the         s 424A letter dated 13 November 2006, viz. to specify why these items of information may be the reason or part of the reason for affirming the delegate’s decision. I do not see how being given two opportunities to comment on the same items of information, one oral and one in writing, is unfair to the appellant. It may be different if the Tribunal had accepted the explanation she gave in response to the s 424A letter, but still counted against the appellant her failure to give that explanation at the hearing. That was not what occurred here, because the Tribunal rejected the explanations the appellant gave in response to the s 424A letter.

30                  I therefore do not consider the way in which the Tribunal raised these two items of information with the appellant at the hearing without notice provides any evidence of apprehended bias on the part of the Tribunal.

Misdescribing the addressee of the husband’s letter and misleading the appellant

31                  Thirdly, the appellant relies upon the way the Tribunal misdescribed the husband’s letter dated 15 January 2006 as being addressed to the High Commission in New Delhi. The appellant says this mislead her into believing there may be a second letter from her husband of which she had no knowledge. It is common ground that there was in fact only one letter from the appellant’s husband and it was addressed to “DIMIA 26 Lee Street Sydney NSW 2000”. The most obvious explanation for the misdescription of the addressee by the Tribunal member is a misunderstanding on his part. Whatever the explanation is, there is no suggestion in the transcript of the hearing before the Tribunal (see above), or in the explanation the appellant gave in response to the s 424A letter, or anywhere else, that she was confused or mislead by the Tribunal’s misdescription of the addressee of the husband’s letter. I do not, therefore, consider that this misdescription constitutes any evidence, let alone clear evidence, of apprehended bias on the part of the Tribunal. 

Using unduly robust language during the hearing

32                  Fourthly, the appellant submits that the Tribunal displayed apprehended bias by using unduly robust language during the hearing. From a fair reading of the transcript of the hearing, I do not consider that the Tribunal did anything more than discharge its inquisitorial functions by vigorously testing the appellant’s claims and clearly confronting her with any perceived inconsistencies in them: see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [30].  I do not consider that there is any evidence in the transcript that the appellant was overborne by the Tribunal’s questioning or intimidated by it: see Re Refugee Review Tribunal; Ex parte H above at [31].  For these reasons, I do not consider that the Tribunal’s questioning of the appellant during the hearing, as reflected in the transcript of the hearing, provides clear evidence of apprehended bias on the part of the Tribunal.

Irrationally ignoring or giving no weight to evidence

33                  Finally, the appellant alleges that in its reasons for decision the Tribunal irrationally ignored certain evidence presented by the appellant and gave no weight to other evidence, thereby demonstrating a closed mind to the appellant’s application.  In my view, this submission must be rejected as a thinly disguised attempt at merits review of the Tribunal’s decision.  It is beyond doubt that the assessment of the evidence and the weight to be given to particular pieces of evidence are all matters for the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ and Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197] per Kirby J.

34                  For these reasons, I do not consider that any of the matters put forward by the appellant amounts to clear (or any) evidence of apprehended bias on the part of the Tribunal in either the conduct of the hearing or its reasons for decision.

CONCLUSION

35                  In my view, neither of the remaining two grounds of appeal therefore has any merit and this appeal must be dismissed.  I will hear the parties on the question of costs.

Executive Assistant:

Dated:         10 October 2008