FEDERAL COURT OF AUSTRALIA

MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made 19 March 2015 be set aside and in lieu thereof it be ordered that:

(a)    The application for judicial review filed on 28 May 2013 be allowed.

(b)    The decision of the Refugee Review Tribunal dated 2 May 2013 be quashed.

(c)    The matter be remitted to the Administrative Appeals Tribunal for determination according to law, with the Tribunal to be constituted by a different member.

3.    The first respondent pay the appellant’s costs of the appeal and of the proceeding in the Federal Circuit Court of Australia.

4.    The costs payable in respect of the appeal be paid directly to the appellant’s Pro Bono lawyers (within the meaning of rule 4.11) pursuant to rule 4.19 of the Federal Court Rules 2011.

5.    Any party wishing to vary the form of orders as to costs, give notice in writing to the Court within 3 days.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia dated 19 March 2015, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal). The Tribunal’s decision, dated 2 May 2013, was to affirm the decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of Sri Lanka, of Tamil ethnicity, born in North West Sri Lanka. He arrived in Australia by boat in May 2012, aged 17, as an unaccompanied minor, and made an application for a Protection (Class XA) visa on 31 August 2012. The application was supported by (among other things) a statutory declaration dated 30 August 2012 (the first statutory declaration) which was prepared with the assistance of a Tamil interpreter. In the declaration, the appellant claimed that the Sri Lankan army had a camp near his family’s house, that people from the army often came to his house and ordered him to go with them to the camp to carry out work and that, if he refused to work, he was beaten. He also claimed that the army often rounded up Tamils in his area (including the appellant and his father) and ordered them to demonstrate against the government, in order to create trouble between the Tamil and Singhalese communities. On 24 January 2013, the delegate refused the application.

3    On 6 February 2013, the appellant applied to the Tribunal for review of the delegate’s decision. The hearing before the Tribunal was scheduled for 10 April 2013. Some days before the hearing date, on 3 April 2013, the appellant made a second statutory declaration (the second statutory declaration). This statutory declaration, which comprised 24 paragraphs over six pages, responded to a number of adverse findings contained in the delegate’s decision. It was prepared with the assistance of a Tamil interpreter who was different from the interpreter who assisted with the preparation of the first statutory declaration. It was provided to the Tribunal in advance of the hearing, in support of the appellant’s application for review.

4    On 10 April 2013, the Tribunal conducted a hearing, which was attended by the appellant, his solicitor and migration agent (the applicant’s lawyer), a Tamil interpreter (who was not the interpreter for either the first or the second statutory declarations), and a support person for the appellant. The hearing lasted approximately 3 hours, including a short adjournment.

5    Early in the hearing, the Tribunal member questioned the appellant about the second statutory declaration, asking him repeatedly to state what was in the document. The appellant’s attention was not drawn to the particular aspects of the delegate’s decision to which the second statutory declaration was responsive. The appellant gave evidence which covered some but not all of the matters contained in the second statutory declaration.

6    Towards the end of the hearing, the Tribunal member raised an issue concerning the second statutory declaration. In summary, the Tribunal member said that when he read the document initially he had had concerns that it was not expressed in the “sort of voice” he would expect from a man such as the appellant; and that it was clear that it had been written by a lawyer on the appellant’s behalf. The member said that, now that he had had the opportunity to speak with the appellant for nearly three hours, and had asked him at the start about what he said in the document, and his evidence covered about two paragraphs out of 24 paragraphs, the member’s suspicions about the document being a lawyer’s document and not the appellant’s document were confirmed. The member said to the appellant: “I stress that it’s not something I criticise you for.” However, the member added that he would give the material in the second statutory declaration which was not confirmed with him that day, little weight.

7    The applicant’s lawyer then made some submissions about the process by which the second statutory declaration had been prepared, including by her asking the appellant questions and taking note of his answers using an interpreter. She said that, necessarily, using an interpreter means that the language in the declaration is not the language of the appellant. The member highlighted a paragraph of the declaration which included: “I do not intend to repeat the claims that I have made in my PV application and rely on all evidence previously given.” The lawyer said that this reflected her advice to the appellant that he did not need to repeat the claims he had made in his earlier declaration. The member said to the applicant’s lawyer that she had put her own words in a statutory declaration made by the appellant. The lawyer responded that she had read the paragraph back to the appellant and he had agreed that those were his sentiments. The member then said to the applicant’s lawyer, in a tone that I would describe as very serious:

You’re on very, very, very dangerous ground. You’re on very dangerous ground. This is a statutory declaration. Now, I’ve raised it with the applicant because I’m required to, but I see [ ] what are [in effect] submissions put in an applicant’s voice. That gives rise to two concerns. One is that you have sought to mislead the tribunal. It might be grounds for a report to OMARA. [It might also be grounds for a] report to the Legal Services Board for professional misconduct, so I would urge you – I will not do either of those things but I would urge you in the future to be very careful in how you present an applicant’s evidence. It’s not something I hold against [the applicant] because it’s quite clear to me that large portions of that statutory declaration are confections of your own. Is there anything else?

The reference to ‘OMARA’ is to the Office of the Migration Agents Registration Authority.

8    The part of the hearing described in paragraph [7] above was not interpreted to the appellant. The appellant was not invited to respond to this issue, nor was he asked any questions about the process of preparation of the second statutory declaration.

9    The hearing concluded shortly after the above exchange. After the appellant had left the hearing room, the Tribunal member again raised the issue of the second statutory declaration with the lawyer. The member said that he would stop the recording and did so. They then had a further discussion about the issue.

10    As noted above, on 2 May 2013, the Tribunal affirmed the decision of the delegate.

11    On appeal to the Federal Circuit Court, the appellant relied on six grounds. The first of these related to apprehension of bias. All of the grounds were unsuccessful.

12    On appeal to this Court, the appellant relies only on the first of the six grounds that were argued before the Federal Circuit Court. The appellant also relies, with leave, on a new ground. Thus two issues are raised by the appeal:

(a)    First, did the Federal Circuit Court err in failing to conclude that the decision of the Tribunal was vitiated by a reasonable apprehension of bias?

(b)    Secondly, was the decision of the Tribunal affected by jurisdictional error in that there was a breach of s 425 of the Migration Act 1958 (Cth) (the Act)?

13    My conclusions can be summarised as follows.

(a)    In my view, the Federal Circuit Court erred in its consideration of the issue of reasonable apprehension of bias, and a reasonable apprehension of bias does arise in relation to the decision of the Tribunal. The question 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. More is required than a vague sense of unease or disquiet; the apprehension of bias must be firmly established. In the present case, the way that the member questioned the appellant about the second statutory declaration in the early part of the hearing resembled a memory test. The impression is that the questioning was designed to make the appellant fail in the task, and thereby confirm the member’s suspicions about the declaration. Further, the member made a serious attack on the professional conduct of the applicant’s lawyer in the preparation of the appellant’s evidence. Whether or not this was justified (and I do not think it was), it might reasonably be apprehended by a fair-minded lay person that the member was so influenced by what he perceived to be the lawyer’s improper or inappropriate conduct, that he might not bring an impartial mind to his assessment of the appellant’s case.

(b)    It is not necessary to decide whether the decision of the Tribunal was in breach of s 425 of the Act and is thus affected by jurisdictional error.

14    Accordingly, the appeal will be allowed.

Evidence on the appeal

15    A full transcript of the hearing before the Tribunal was not provided to the primary judge; nor was an audio file of that hearing. On the hearing of the appeal, there were admitted into evidence both a full transcript of the hearing before the Tribunal and the audio file of the Tribunal hearing. (The audio file in fact comprises three digital files, but I will refer to it as one audio file for convenience.) The transcript (headed, ‘Amended Transcript’) was annexed to an affidavit of Inshani Ward, a law graduate employed by the solicitors for the Minister, dated 19 February 2016. During the hearing of the appeal, a portion of the audio file of the Tribunal hearing was played in Court. In preparing these reasons, I have listened to the whole of the audio file of the hearing before the Tribunal.

Facts

16    On 30 August 2012, the appellant made the first statutory declaration. This contained seven paragraphs and was three pages long. Some of its contents have been outlined above. It was declared before a lawyer (who worked for the Refugee & Immigration Legal Centre) and contained a statement at the end: “Ramasamy Sowri Rajan of TIS, Tamil Interpreter no. 2192 translated the above statutory declaration by telephone”.

17    On 17 September 2012, the Refugee & Immigration Legal Centre made a detailed submission to the Department of Immigration & Citizenship in support of the appellant’s application for a protection visa. The letter summarised the appellant’s claims as follows:

(a)    The applicant fears that, if he is returned to Sri Lanka, he will suffer persecution and/or substantial discrimination amounting to a gross violation of human rights in the form of forced labour/recruitment, psychological harm, abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the Sri Lankan authorities, or pro-government military or paramilitary groups on account of, considered separately or cumulatively:

(i)    his Tamil ethnicity;

(ii)    his identity as a young person of Tamil ethnicity from the North West of Sri Lanka;

(iii)    his membership of the particular social groups ‘young Tamil males’ and/or ‘young Tamil males from the North-West of Sri Lanka’ and/or young Tamil males from Udappu;

(iv)    his imputed political opinion in support of the LTTE and their aims and against the activities of the Sri Lankan authorities and pro-government militias on account of:

•    his Tamil ethnicity;

•    his illegal departure from Sri Lanka and asylum claim in Australia;

(v)    His membership of the particular social group ‘unaccompanied minor Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully’. He will face discriminatory treatment beyond the normal punishment for this crime amounting to persecution on account of his profile outlined in (i) – (iv) above if he is forced to return to Sri Lanka.

(b)    Where serious harm is carried out by pro-government military or paramilitary groups and/or other Sinhalese groups, the applicant fears he will not be provided with any protection by the Sri Lankan authorities on account of his profile described above. The applicant will thus be discriminatorily denied effective state protection constituting Convention persecution.

(c)    The applicant’s fears are genuine and well founded. They are informed by personal experiences wherein the applicant has been directly targeted for Convention reasons. In this regard, we refer to the findings of the Full Federal Court in Kalala v Minister for Immigration & Multicultural Affairs, that what has occurred to an applicant in the past may be a powerful indicator that there is a well-founded fear of a future recurrence of more or less similar events.

(d)    Country information continues to indicate that the applicant’s fears of persecution for the above reasons are well-founded, and that although the LTTE was defeated by the Government in May 2009, the authorities continue to take action against Tamils, and are taking repressive and persecutory measures to ensure there is no resurgence of the LTTE within Sri Lanka.

(e)    Given the applicant’s circumstances, including his youth, and the nature of his claims and profile, it would be neither reasonable to expect, nor possible, for him to safely relocate to another area within Sri Lanka.

(f)    There is no evidence that the applicant has the right to enter and reside in any third country; nor is there any evidence that the applicant can otherwise obtain effective protection in any country.

(g)    In sum, there is a real or substantial possibility, which is not remote or fanciful, that in the current circumstances the applicant would face harm amounting to persecution, were he returned to Sri Lanka. Accordingly, we submit that the applicant meets the definition of a ‘refugee’ and is owed protection obligations by Australia under the Refugees Convention.

(Footnotes omitted.)

18    On 24 January 2013, the delegate refused the application. In the decision record, the delegate made findings adverse to the appellant in relation to credibility. In the summary of findings of fact, the delegate stated (in part):

•    The applicant’s claims that Sri Lankan officials have been to the applicant’s house looking for him since his travel to Australia is credible.

•    The applicant’s claims to have been subjected to forced labour at the hands of the Sri Lankan Army are not credible.

•    The applicant’s claims to have been forced to protest against the Sri Lankan government by the Sri Lankan Army are not credible.

19    On 6 February 2013, the Refugee & Immigration Legal Centre, on behalf of the appellant, wrote to the Tribunal, enclosing an application for review of the delegate’s decision. This letter was signed by the lawyer referred to herein as the applicant’s lawyer.

20    On 20 February 2013, the Tribunal wrote to the applicant’s lawyer enclosing an invitation for the appellant to attend a hearing before the Tribunal on 10 April 2013.

21    On 5 April 2013, the applicant’s lawyer (on the letterhead of the Refugee & Immigration Legal Centre) sent by fax and email to the Tribunal, a copy of the 17 September 2012 letter referred to above.

22    Also on 5 April 2013, the Refugee & Immigration Legal Centre sent (by fax and email) a letter to the Tribunal enclosing:

(a)    A submission dated 5 April 2013 in support of the appellant’s application for review. The submission was 27 pages in length and signed by the applicant’s lawyer.

(b)    The second statutory declaration. The covering letter indicated that this declaration was made “in response to the decision from the Department of Immigration”.

23    As noted above, the second statutory declaration comprised 24 paragraphs over six pages. It was declared before the applicant’s lawyer. At the foot of each page, including the page with the declaration, there appeared the statement:

This Statement has been prepared with the assistance of Tamil interpreter Praba Shankar of OnCall Interpreters on 3 April 2013, and the contents of the statement were interpreted from English to Tamil and confirmed as correct by the applicant.

24    Accompanying the second statutory declaration, and apparently provided to the Tribunal with it, was a statutory declaration by the interpreter in which he declared:

That I am competent in both the English language and the Tamil language and that I have faithfully interpreted the contents of this statutory declaration from the English language to the Tamil language to the best of my ability.

25    In paragraph 5 of the second statutory declaration, the appellant said that, since he had been in Australia, the Sri Lankan army had been harassing and intimidating his family. He described a conversation with his father the previous Friday. In paragraph 7 of the declaration, the appellant said:

I do not intend to repeat the claims that I have made in my PV application and rely on all evidence previously given. I do wish to provide additional information and respond to the decision of the DIAC case officer in respect of my PV application.

26    In the balance of the second statutory declaration, from paragraphs 8 to 24, the appellant responded to specific matters found against him by the delegate of the Minister. Each paragraph, or group of paragraphs, commenced with a statement that the appellant had been informed of a certain matter, being an aspect of the delegate’s decision, and then responded to that matter. For example, paragraph 8 was as follows:

I am told that the case officer did not believe that I was forced to work for the army many times between 2008 and 2012. I am told that she said there was no reports that confirm that this is occurring. It may be true that there is little information available about this. The Sri Lankan government controls the news and does not let information like this get reported. The Army do these activities secretly. If someone reported that this is happening, the next day the informant would be gone – killed or disappeared. Nobody wants to report these matters to anyone because they are so scared.

27    On 10 April 2013, the hearing before the Tribunal took place. The hearing record indicates that the interpreter was Vasan Venkataraman.

28    It is convenient at this point to make some observations about the transcript of the hearing. As is conventional, the transcript reproduces only the statements made in English during the course of the hearing; it does not reproduce statements made in Tamil. It is necessary to listen to the audio file in order to ascertain at what points interpretation occurred. For example, where in the transcript there is a paragraph being a statement made by the Tribunal member, usually there was a pause at the end of each sentence (or even part way through a sentence) for this to be interpreted to the appellant. Similarly, where in the transcript there is a paragraph being the evidence of the appellant, usually the evidence of the appellant was given sentence by sentence, and this was interpreted sentence by sentence. It is also relevant to note that, based on listening to the audio file, there were several occasions when it was not easy to understand the interpreter’s expression in English; there are, therefore, a number of places in the transcript where the word or words he used are not recorded.

29    As noted above, early in the hearing, the Tribunal member raised with the appellant the second statutory declaration. The relevant questions and answers appear from page 9 (line 4) to page 11 (line 3). (When I refer to page numbers of the transcript, I am referring to the pages numbered ‘2 of 27’ to ‘27 or 27’.) First of all the member asked the appellant whether he remembered making the document (to which he answered, ‘Yes’); whether it was all true and correct (to which he answered, ‘Yes’); and whether he wanted to make any changes to any of the written material he had provided (to which he answered, ‘No’). Then, the member asked the appellant in reference to the second statutory declaration, “So this document you made a week ago, tell me what you’ve said in it”. The answer to this question, as stated by the interpreter, is unclear from the audio and is recorded in the transcript as “He in that document”. The member repeated the question and the appellant responded with a detailed answer (9 lines of transcript) about a recent conversation with his father and what his father had told him. The evidence is similar to that contained in paragraph 5 of the second statutory declaration.

30    The member then asked the appellant, “Okay. Is there anything else that you said in this document?” (page 9, line 26). There followed a series of questions and answers during which several words said by the interpreter (based on listening to the audio file) are difficult to understand. The appellant then (through the interpreter) asked the member, “Do you want me to tell you what I said to the lawyer?” In response to this question, the member cautioned the appellant about conversations with lawyers being protected.

31    The member then repeated the question: “I want you to tell me in your own words what you said in this document. Now, you’ve told me something just then about the visit to your home, but you’ve said other things in the document. Tell me what they are” (page 10, lines 12-14). The appellant gave a detailed answer (11 lines of transcript) about the army coming to take him to perform work, the type of work he was required to do, and beatings if he refused to do the work. The evidence is similar to that contained in his first statutory declaration. He also said that he worries about his family; that something bad will happen to his family. The evidence is similar to that contained in paragraph 6 of the second statutory declaration.

32    The member then said that these were things in the appellant’s first statutory declaration, and he would come back to them in a little while, but he was still interested in the document that the appellant prepared a week ago (being the second statutory declaration). He asked whether there “are any other things that you remember you said in this document that you made a week ago” (page 10, lines 29-30). The appellant then said: “Army came looking for me. They took me to the camp to do various tasks. I was asked to protest. I had problems with the Grease Man. That’s what I had given” (page 10, lines 33-35). These topics are covered in the second statutory declaration, but in much more detail.

33    The member then asked the appellant, “Anything else that you want to let me know that is in this document?” (page 11, line 2), to which the appellant answered ‘No’.

34    The questioning then moved through a series of topics, including: the appellant’s claims relating to army camps (pages 11-14), political protests (pages 15-16) and the ‘grease man’ (pages 16-17); documents obtained from the Edmund Rice Centre about the circumstances in Sri Lanka (pages 17-18); whether the appellant would be regarded as associated with the LTTE (page 19); whether the appellant would be at risk if returned to Sri Lanka (pages 21-23); whether people who have made asylum claims would be suspected of LTTE connection on that basis alone (pages 23-24). During the course of this part of the hearing, the Tribunal member put to the appellant on several occasions the doubts that he had about the appellant’s evidence being true, and his concern that the appellant’s evidence was vague and lacking in detail (see, eg, page 19, last two lines). Having listened to the audio file, I would not characterise the tone of the member as hostile.

35    The appellant gave some evidence during this section of the transcript (pages 11-24) which covered matters dealt with in this second statutory declaration (see, eg, page 16, lines 7-19, about the ‘grease man’).

36    The appellant said on a number of occasions that, when he thinks about these matters, he feels afraid (see, eg, page 12, line 19; page 14, line 1). In response to the member saying that the appellant’s account of the camps was not particularly convincing and that it “sounded like something that somebody’s told you is a good thing to say” (page 20, lines 11-14), the appellant said that when he thinks about these matters, “I get upset and I get the feeling as if I am in Sri Lanka” (page 20, lines 15-16). The member said, “You said that a number of times as well” (page 20, line 17). I do not think this was said in a hostile tone of voice.

37    Near the end of the hearing, the member asked the applicant’s lawyer if there were any questions she wanted him to ask (page 24, line 25). The applicant’s lawyer (at the request of the appellant) asked the member to give the appellant an opportunity to provide more detail about the beatings he had experienced. The member then gave the appellant that opportunity.

38    Following that evidence, the Tribunal member raised the matter of the second statutory declaration (page 25, lines 17-35):

Okay. I suppose there’s just one other thing which I just need to raise and that’s in relation to this additional document or statement you’ve provided. Now, I’m not being critical of you [applicant], but I should raise that there’s things that are raised in this [statutory declaration]. It’s actually – it’s a formal document under Australian law. The way I read it when it arrived in my office, the way it’s expressed in English which is not the sort of voice I would expect from a man such as yourself. It’s clear that it’s been written by a lawyer on your behalf. It’s designed to respond to the initial decision refusing the visa, and when I read it I really had concerns it was actually a document which is spoken in your voice. When I read it I had concerns that it’s actually a document which speaks in your voice.

Now, I’ve had the opportunity to speak with you for nearly three hours, and I asked you at the start what you said in that document and your evidence really covered about two paragraphs out of 24 paragraphs. Really my suspicions about that document being a lawyer’s document and not your document are confirmed. I stress that it’s not something I criticise you for, but I really give any material in that document that you haven’t confirmed with me today little weight. I give any material that is in that document that you have not confirmed with me today little weight but that’s not your fault.

(The words in square brackets, “statutory declaration”, are a correction to the transcript to reflect the audio file.)

The above passage was interpreted into Tamil (generally, sentence by sentence) by the interpreter.

39    However, the next part of the hearing was not interpreted. It is recorded in the transcript as follows (page 26, line 1 to page 27, line 2). (I have substituted “Tribunal member” and “Applicant’s lawyer” for the initials that appear in the transcript, and have omitted the words “[not translated]” which appear after each statement in the following passage in the transcript.)

Tribunal member:    So do you want time to [put in] further submissions, [applicant’s lawyer]?

Applicant’s lawyer:    I’m happy to send you information about the question that you asked. I’m not planning to send you any further written [submissions] unless you require them, but I would like to just address that point that you just raised in that I’d just like to put on the record that the information in that declaration was prepared by me asking my client questions and taking notes on his answers using an interpreter. Necessarily using an interpreter means that the language in the statement is not the language of my client. It’s the language of an interpreter putting into English what my client has expressed. Sometimes that means that the language becomes more formal than necessarily the client would use himself.

Tribunal member:    So for example, [paragraph 7,] your client said to you, “I do not intend to repeat the claims that I’ve made in my preliminary application and rely on all evidence previously given”, is that instructions you received from your client through an interpreter?

Applicant’s lawyer:    No, I said to my client …

Tribunal member:    So why isn’t [the] statutory declaration expressed in the voice of the applicant?

Applicant’s lawyer:    I said to my client that it’s not necessary to repeat the claims that he has made […]

Tribunal member:    So that’s you.

Applicant’s lawyer:    [in the first statement.] That’s my advice to him.

Tribunal member:    You put your own words in a statutory declaration made by the applicant?

Applicant’s lawyer:    I read that back to him and he’s agreed that those are his sentiments that he wishes to provide […]

Tribunal member:    You’re on very, very, very dangerous ground. You’re on very dangerous ground. This is a statutory declaration. Now, I’ve raised it with the applicant because I’m required to, but I see [ ] what are [in effect] submissions put in an applicant’s voice. That gives rise to two concerns. One is that you have sought to mislead the tribunal. It might be grounds for a report to OMARA. [It might also be grounds for a] report to the Legal Services Board for professional misconduct, so I would urge you – I will not do either of those things but I would urge you in the future to be very careful in how you present an applicant’s evidence. It’s not something I hold against [the applicant] because it’s quite clear to me that large portions of that statutory declaration are confections of your own. Is there anything else?

(The words in square brackets are corrections to the transcript to reflect the audio file, save for the references to the applicant and the applicant’s lawyer.)

40    Based on the audio file, I would describe the member’s tone in the above passage as being very serious. Further, the audio file indicates that the applicant’s lawyer was cut off by the member on three occasions. These are indicated by three dots in the above passage.

41    Shortly after this, the appellant and the interpreter left the room, and the following exchange occurred between the Tribunal member and the applicant’s lawyer (page 27, lines 23-28):

Tribunal member:     I would have preferred to have the conversation with you off the record, I was actually going to ask you to stay back.

Applicant’s lawyer:    Oh ok.

Tribunal member:     But you’ve responded and I’ve responded. So. Just be careful. I’m not the sort of member who’s going to … I’ll stop the recording.

    Hearing is now closed; the time is 1:05.

42    The audio recording then ceased and a conversation took place between the member and the applicant’s lawyer. There was no affidavit evidence of this conversation, but it is described in a letter from the Refugee & Immigration Legal Centre dated 3 May 2013, referred to below, which was before the primary judge. In summary, during the conversation, the applicant’s lawyer said that the questioning of the appellant in relation to the second statutory declaration had been unfair, and provided reasons in support of that proposition; that she disputed any suggestion that she had in any way manufactured the declaration; and that the declaration was completely based on the appellant’s instructions to her.

43    On 2 May 2013, the Tribunal affirmed the decision of the delegate. Its decision was provided to the applicant’s lawyer by fax on 3 May 2013. In its decision, the Tribunal said, in relation to credibility and the second statutory declaration:

12.    The courts have made it clear that it is important the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. I take into account the applicant’s youth, however I also note that he has had eleven years of schooling in Sri Lanka. As a general impression, the applicant did not impress me as a convincing witness. His evidence was largely vague and lacked detail. He did not describe to me claimed experienced events in a fashion which was direct, detailed and cohesive. His evidence did not strike me as recollection from first-hand experience. I find that the repeated statements, when I asked for detail, that when he thinks of things he claims to have experienced that he feels afraid, or feels that he is back in Sri Lanka are an attempt on the applicant’s part to mislead, obfuscate and paper over the lack of detail.

13.    The statutory declaration submitted to the Tribunal, made 3 April 2013, responds to a number of the matters raised by the delegate in her decision refusing the visa. I asked the applicant to tell me in his own words what was in that document. He said his father had received a visit from the Sri Lankan Army enquiring about his whereabouts and they searched the house. He repeated his claims about being forced to work at the army camp. He mentioned the problems with Grease Men. He was not able to give as direct evidence to me the other matters raised in the statutory declaration, even though he had said that he remembered its contents and that it was true and correct. I raised as an issue at the hearing that because he could not give evidence of the matters raised in that document and because it was expressed in language which was inconsistent with his own form of expression and when combined with his vague and lacking-in-detail evidence about past events, that it may lead me to give little weight to its contents. The representative submitted that it was prepared by her based on instructions with the assistance of a telephone interpreter, that the applicant is young and he has no English and was not able to re-familiarise himself with its contents. The representative also submitted that my manner of questioning the applicant about the contents of the document was unfair, because 1 did not specifically ask about the particular evidence in it. I reject the submission that my questioning about the contents of the document was unfair. What this submission suggests is, in essence, that the Tribunal should not ask open questions but rather is under a duty to keep asking the applicant questions, or continuously prompt the applicant, until he remembers his own evidence. There is no claim or evidence that the applicant is labouring under any medical disability that affects his ability to recollect his own evidence. I afford less weight to the evidence in the document than evidence given by him in his own voice.

44    On 3 May 2013, shortly after the decision of the Tribunal was faxed, the Refugee & Immigration Legal Centre sent a letter by fax to the Principal Member of the Tribunal requesting that the Tribunal hearing the appellant’s application be reconstituted on the basis of apprehended bias. The letter contained detailed quotations of statements made during the hearing in the form of a transcript (perhaps prepared from the audio file). It also contained a description of the conversation between the Tribunal member and the applicant’s lawyer after the audio recording was turned off.

45    On 15 May 2013, the Refugee & Immigration Legal Centre again wrote to the Tribunal, again requesting that the Tribunal be reconstituted.

46    On 22 May 2013, the Principal Member of the Tribunal responded to those letters. The letter stated that as the Tribunal decision was effectively give to the appellant by fax on 3 May 2013, the Tribunal had concluded its statutory function on that date, and hence there was no basis to vacate the decision or reconsider the merits of the decision.

The appeal to the Federal Circuit Court

47    The appellant applied to the Federal Circuit Court for judicial review of the decision of the Tribunal. As noted above, the appellant relied on six grounds before the Federal Circuit Court, the first of which related to apprehended bias. As the other five grounds are not pursued on appeal, it is unnecessary to say anything further about them. The first ground of appeal was expressed in the following terms:

That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness; or in the alternative is affected by errors of law amounting to jurisdictional error.

Particulars

The Second Respondent approached its task not by asking itself the neutral question: “Does the Applicant have a well-founded fear of persecution on a relevant ground?” Rather its approach was to look for bases to discredit the Applicant’s evidence.

Further, the Second Respondent failed to take proper account of the Applicant’s evidence given by statutory declaration which constituted error of law amounting to a failure to give procedural fairness, amounting to jurisdictional error.

48    The hearing before the primary judge took place on 28 January 2015 and reasons for judgment were delivered and orders made on 19 March 2015. The application was dismissed with costs. The primary judge dealt with ground 1 at paragraphs [9]-[28]. As noted in paragraph [10] of the primary judge’s reasons, the appellant made clear in oral submissions that this ground concerned apprehended bias rather than actual bias. The appellant relied on the passage at paragraph [13] of the Tribunal’s reasons (quoted above) and extracts from the transcript of the hearing (set out in paragraph [11] of the reasons of the primary judge). The appellant also relied on the following passages from the letter from the Refugee & Immigration Legal Centre to the Tribunal dated 3 May 2013, which were set out in paragraph [12] of the reasons of the primary judge:

It is significant that, having identified one paragraph of the statutory declaration as being, allegedly, a statement of the legal representative, the Member then moves to a sweeping assertion that “large portions of the Statutory Declaration are confections” of the legal representative. The extrapolation, without any basis, from one paragraph to “large portions” of the statutory declaration is enough to cause a reasonable bystander to believe that the Member would not bring an impartial mind to the assessment of the Applicant’s claims, especially those in, or supported by, this particular Statutory Declaration.

Although at some pains to state to the Applicant that it was not his fault, and that the Member was not holding this against the Applicant, the Member has also stated:

“But I really give any material in that document that you haven’t confirmed with me today, little weight”

It is clear that, examining the Member’s statements objectively, the Member’s opinion of the legal representative’s conduct has coloured his opinion of the Applicant’s truthfulness and reliability. Any reasonable bystander examining what the Member has said would reach that conclusion.

49    After referring to other submissions, and relevant authorities, the primary judge rejected the ground of apprehended bias at paragraphs [21]-[28]:

21.    I am not persuaded that the Tribunal’s words and conduct in this case could have led a fair-minded, fully informed lay observer to apprehend that the Tribunal might not bring an impartial mind to the matter. It is well established that the Tribunal is under no obligation to make out an applicant’s case for him. The Tribunal does not have to ask the applicant questions to fill out or bolster his case.

22.    The extract from the transcript relied upon by the applicant came at the end of the hearing. That is clear from the Tribunal member saying:

Now I've had the opportunity to speak with you for nearly three hours ... .

23.    Consequently, even if the applicant had been cowed by the criticism of his migration agent, which is unlikely, it would not have affected the applicant’s testimony given during the preceding three hours.

24.    In relation to the Tribunal’s weighting of the applicant’s oral evidence, as opposed to his statutory declarations, it is for the Tribunal to give such weight to the evidence as it thinks fit. Moreover, it was entirely reasonable for the Tribunal to give greater weight to the applicant’s oral evidence, which was entirely his own, than to a statutory declaration, which had obviously been made with the assistance of his advisers.

25.    Paragraph 7 of the statutory declaration made by the applicant on 3 April 2013 does have a formality and choice of words that indicate that it was written by a lawyer. That statutory declaration overall has a different style and tone to the applicant’s first statutory declaration, made on 30 August 2012. The Tribunal did put to the applicant’s representative during the hearing that the statutory declaration of 3 April 2013 was a confection of the representative’s own making. However, that view was not expressed in the Tribunal’s reasons for decision. Rather, the Tribunal merely said in paragraph 13 of its reasons for decision that it gave more weight to the applicant’s oral evidence than to the evidence in the statutory declaration. As stated previously, the Tribunal was entitled to give such weight as it saw fit to different parts of the evidence.

26.    The Tribunal’s statement that the statutory declaration of 3 April 2013 was a confection might have been excessive. However, because that statement came towards the end of the hearing, it is unlikely to have had any impact on the applicant’s evidence. The Tribunal is, of course, permitted to express strong views during the course of the hearing, provided that the Tribunal remains willing to change those views in the light of other evidence and submissions.

27.    The applicant has provided only an extract of the hearing before the Tribunal. As the authorities show, the impression given by intemperate language or conduct at one point in the hearing can be overcome by later statements and conduct. In the absence of a full transcript, and, indeed, the audio recordings, it cannot be said that the allegation of apprehended bias in this case has been “firmly established”.

28.    It should also be noted that, although the Tribunal said that it gave less weight to the statutory declaration than to the applicant’s oral evidence, the Tribunal did deal with the claim of the round ups, which was made in the statutory declarations but not in oral evidence. The applicant has advanced no sound reason to believe that the Tribunal looked for reasons to discredit the applicant’s account, rather than taking a neutral approach. This ground is not made out.

The appeal to this Court

50    The appellant was granted an extension of time in which to appeal: MZZLO v Minister for Immigration and Border Protection [2015] FCA 963.

51    The appellant’s amended notice of appeal raises two grounds:

1.    The Federal Circuit Court erred in failing to conclude that the decision of the Administrative Appeals Tribunal was vitiated by reasonable apprehension of bias on the part of the presiding Member.

Particulars

(a)    The appellant refers to the Member’s concern about the authenticity and provenance of the appellant’s statutory declaration dated 3 April 2015 from the moment he received that document.

(b)    The Member’s testing of the appellant about the contents of the statutory declaration dated 3 April 2015.

(c)    The Member’s comments to the Appellant during the hearing.

(d)    The Member’s statement that after 3 hours of speaking to the appellant his suspicions are confirmed that the statutory declaration dated 3 April 2015 is a ‘lawyer’s document’ and not the ‘appellant’s document’.

(e)    The Member’s attack on the integrity of the appellant’s representative who assisted in the preparation of statutory declaration dated 3 April 2015 and his declaration to her that ‘large portions … are confections of your own’.

(f)    The Member’s decision to give little weight to any material in the statutory declaration dated 3 April 2013 that was not confirmed orally at the hearing.

2.    Additionally, or in the alternative, the decision of the Administrative Appeals Tribunal was affected by jurisdictional error in that there was a breach of s 425 of the Migration Act 1958.

Particulars

(a)    The Tribunal was required to invite the Appellant to give evidence and present arguments relating to the issues arising in relation to the decision under review;

(b)    the veracity and provenance of the statutory declaration of 3 April 2013 was such an issue;

(c)    The Tribunal determined to give little weight to the contents of a statutory declaration without first inviting the appellant to comment on those matters;

(d)    The Tribunal conducted a portion of the hearing in the absence of the appellant:

i)    when an important exchange occurred during the hearing between the Tribunal and the adviser, which was not interpreted to the appellant, and

ii)    when discussions took place between the Tribunal and the advisor after the tape was turned off and the appellant had left the hearing room.

Applicable principles

52    The question to be determined, where apprehension of bias is alleged in relation to an administrative proceeding, 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: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[31] per Gleeson CJ, Gaudron and Gummow JJ; Isbester v Knox City Council (2015) 255 CLR 135 at [20]-[23] per Kiefel, Bell, Keane and Nettle JJ, at [57] per Gageler J; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI) at [73] per Robertson J (Allsop CJ agreeing at [1]). In Isbester, Kiefel, Bell, Keane and Nettle JJ said at [20]-[23]:

[20]    The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

[21]    The principle governing cases of possible bias was said in Ebner [v Official Trustee in Bankruptcy (2000) 205 CLR 337] to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in [Minister for Immigration and Multicultural Affairs v] Jia Legeng [(2001) 205 CLR 507], essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

[22]    It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.

[23]    How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

(Footnotes omitted.)

53    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”: SZRUI at [22] per Flick J (Allsop CJ agreeing at [1]), citing Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. Such an allegation must be “distinctly made and clearly proved”: SZRUI at [22] per Flick J, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 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”: SZRUI at [22] per Flick J, citing Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] per Weinberg J.

54    In Vakauta v Kelly (1989) 167 CLR 568, in the course of the trial of a personal injuries case, the judge, who was sitting without a jury, made statements critical of evidence given by the defendant’s medical witnesses in previous cases. Brennan, Deane, Toohey and Gaudron JJ held that the remarks would have excited in the minds of the parties and in members of the public a reasonable apprehension that the judge might not bring an unprejudiced mind to the resolution of the matter before him. Brennan, Deane and Gaudron JJ said at 571-572:

… there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice. … the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge’s approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness’ views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.

55    While there are many differences between that case and this, it is an example of case where a reasonable apprehension of bias arose from comments made during the course of a hearing.

56    In Regina v Magistrate Taylor; ex parte Ruud (1965) 50 DLR (2d) 444, a decision of the Saskatchewan Queen’s Bench, an order for prohibition was sought, prohibiting the respondent (a Magistrate) from further proceeding with the charges against the accused. The Court held (at 450) that the animosity of the Magistrate towards the accused’s counsel was ample evidence of bias and that “there would have been every likelihood in the eyes of the public, at least, that this bias would or might be visited on the accused”. Although factually very different from the present case, it is an example of a reasonable apprehension of bias claim based on comments or conduct directed towards a party’s lawyer.

57    The second ground of appeal in the present case relies on s 425 of the Act. This section formed part of Part 7, Div 4 of the Act, which dealt with the conduct of review. Section 422B(1) provided that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 425 was in the following terms:

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

58    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said at [33]-[36]:

[33]    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

[34]    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

[35]    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

[36]    It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

(Footnotes omitted; emphasis added.)

59    In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, French J (as his Honour then was) said (at [58]) that, on one view, the genuineness of the appellant’s documentary evidence was an issue raised by the Tribunal itself and that, if that characterisation be correct, then the Tribunal’s failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425.

Submissions on appeal

60    The appellant’s submissions on appeal can be summarised as follows. The appellant submits that the test for a reasonable apprehension of bias is met in this case, when one examines the attitude of Tribunal towards, and its treatment of, the further declaration, the appellant and the applicant’s lawyer, both during and after the hearing. The basis of this apprehension is submitted to be as follows:

(a)    the Tribunal member’s initial concerns that the second statutory declaration was not in the appellant’s “voice” from the time he first read it when it arrived at his office before the hearing. This demonstrates an adverse view from the outset;

(b)    the member’s questioning of the appellant about the contents of the second statutory declaration. The questioning was unfair. It resembled a memory test, designed to make the appellant fail in the task and thereby confirm the member’s suspicions, rather than an appropriate and vigorous testing of the appellant’s evidence. In any event, the testing of the evidence was thwarted when the appellant asked if the member wanted him to say what he had told his lawyer, and the discussion was diverted to the complex question of legal professional privilege;

(c)    the tone in which the member said to the appellant, “You said that a number of times as well”, when the appellant said he got upset when thinking of the matters about which the Tribunal was asking him. This reveals that the member was entirely disbelieving of the appellant;

(d)    the member’s statement to the appellant that, having spoken to him for almost three hours, his “suspicions about that document being a lawyer’s document and not [the appellant’s] document are confirmed”. This confirms that the member’s preconceived notions had not altered;

(e)    the highly unusual, inappropriate and unjustified attack on the applicant’s lawyer when she sought to explain the manner in which she assisted the appellant to prepare the second statutory declaration, followed by the member’s declaration to her that “large portions of that statutory declaration are confections of your own”. These remarks were of a most serious kind, going directly to the professional integrity of the lawyer. From this it can be said that the member might have been so influenced by the lawyer’s conduct, that he closed his mind to the appellant’s underlying account of his claim, and the reasons why his evidence may be thought to be lacking in detail; and

(f)    the member’s statement to the appellant that “I stress that it’s not something I criticise you for, but I really give any material in that document that you haven’t confirmed with me today little weight. I give any material that is in that document that you have not confirmed with me today little weight but that’s not your fault”. This approach, although couched in terms favourable to the appellant, was not so. It had the effect of depriving him of a significant part of his case. It further reflects the member’s preoccupation with the lawyer’s conduct, and resultant lack of preparedness to give the appellant the opportunity to dissuade him from the view he had formed about the document.

61    The appellant submits that, based on the above, a properly informed lay person would reasonably apprehend that from the time the member considered his “suspicions” about the further declaration were “confirmed”, and that large portions were “confections” of the lawyer, there was a real and not remote possibility that there was nothing the appellant (or his lawyer) could say or do to change the Tribunal’s preconceived view that he was not the author of his own evidence, or that the lawyer had fabricated the account of events on which he based his application for a protection visa. Accordingly, the Tribunal might not have brought an impartial mind to bear on its decision. From this point on, the member’s mind was no longer open to persuasion.

62    The appellant also submits that the reasons of the Tribunal only serve to confirm that the member gave little weight to the majority of the contents of the second statutory declaration.

63    In relation to the second ground of appeal, the appellant submits that:

(a)    The source of the second statutory declaration was undoubtedly an “issue arising in relation to the decision under review”. The Tribunal made it so. It was central to the appellant’s case on review, where he provided additional evidence and sought to explain why certain adverse findings might have been made by the primary decision-maker. It was the only evidence he put before the Tribunal, that is, after the primary decision and prior to the Tribunal hearing.

(b)    The Tribunal correctly said that it was obliged to put its concerns about the second statutory declaration to the appellant. While the member did alert him, in a fashion, such alert was insufficient, with the result that the appellant was deprived of the opportunity to properly put his case. Having identified its concerns about the veracity and origin of the second statutory declaration, it was incumbent upon the Tribunal to put to the appellant directly, and invite from him comment about, those matters that went to his role in the creation of the document (as opposed to his lawyer’s role). The Tribunal was obliged to give the appellant a meaningful opportunity to comment upon its concerns. This obligation was not answered by the Tribunal simply alerting the appellant to the issue, or saying that the issue with the declaration was not his fault. Instead of pursuing an inquiry of the appellant (which is not to be equated with the issue of whether Tribunal should have given the appellant a running commentary on its thought processes), the Tribunal became distracted with berating his lawyer, and did not return to it. The Tribunal should have sought a response from the appellant himself, on this critical aspect of his case.

(c)    Further, the Tribunal conducted a portion of the hearing in the absence of the appellant. This occurred in two different circumstances. First, when he was in the hearing room, during the exchange between the Tribunal and his lawyer that was not interpreted for him. Secondly, when the Tribunal continued its discussions with the lawyer after the appellant left the room and the tape was turned off. In both cases, important issues were being raised, which were capable of affecting the view that the Tribunal might take of his application for review. Through no fault of the appellant, he was shut out from the hearing process. In the result, there was a breach of s 425.

64    The Minister submits, in relation to the first ground of appeal, that in this case, none of the matters pointed to by the appellant, either separately or taken together, are sufficient to raise a reasonable apprehension of bias in the hypothetical observer. In the main that is because, the Minister submits, the hypothetical observer is taken to be aware of the statutory context and decision-making process undertaken by the Tribunal. That is, the Tribunal proceeding is inquisitorial and so it can be expected that the Tribunal will test evidence given by an applicant, even robustly, to determine the weight that should be given to it. It can also be expected that, in view of the decision-making paradigm, the Tribunal would confront the appellant with matters that brought his account into question. When those matters are considered (and accepted to be understood by the hypothetical observer due to his or her knowledge of the nature of the decision and the context in which it was made and the circumstances leading to the decision), the matters said by the appellant to give rise to a reasonable apprehension of bias are sufficiently explained to (objectively) remove even any unease in the reasonable bystander, let alone a reasonable apprehension of bias.

65    The Minister makes the following submissions in response to the particular complaints raised by the appellant:

(a)    The Tribunal’s concerns about the second statutory declaration, its testing of the appellant about the contents of that declaration, and its statement that its suspicions about the document being a lawyer’s document being confirmed − all indicate that the Tribunal was testing the account that had been given by the appellant as to the harm that he had suffered in the past and the harm that he claimed to fear in the future. The Tribunal was not required to accept the appellant’s material uncritically (a matter known by the hypothetical observer). Where the Tribunal perceived weaknesses in that evidence, it was entitled to test the evidence presented by the appellant. The hypothetical observer can be taken to know that the Tribunal’s processes are inquisitorial with a statutory prescription as to the content of the rules of natural justice that apply. By suggesting that it had doubts about the declaration, the Tribunal could not be taken as indicating that it had prejudged the appellant’s application or that these views were incapable of being changed. Nothing suggests that the Tribunal was unable or unwilling to evaluate fairly all of the material before it.

(b)    In the context of the hearing as a whole, the fact that the Tribunal said (and the way it was said) to the appellant “you said that a number of times as well” could not be construed as indicating that the Tribunal had prejudged the matter. When the passage is read (and heard) in the context of the hearing as a whole, it is clear that the Tribunal was reminding the appellant that it had already heard the evidence that the appellant was there giving. There may be particular matters troubling the Tribunal for resolution at a hearing, which require questioning and expressions of doubt that are entirely appropriate. That cannot sensibly be construed as indicating that the Tribunal had prejudged the appellant’s application.

(c)    The appellant says that the Tribunal’s exchange with his lawyer (or, as it is put, an “attack”) indicates that the Tribunal might have prejudged the matter. However, the hypothetical observer would be aware that the Tribunal was, as it clearly expressed, concerned that his lawyer had put her own words in a statutory declaration made by the appellant. Accordingly, when that is understood and read in the context of a three hour hearing of the appellant’s evidence, the Tribunal’s exchange with the applicant’s lawyer (at the end of the hearing) could not give rise to a reasonable apprehension of bias.

(d)    The Tribunal decided to give little weight to any material in the second statutory declaration that was not confirmed orally at the hearing. It is well accepted that the weight to be given to evidence is a matter for the Tribunal as part of its fact-finding function. The hypothetical observer can be taken to know this. It follows that the decision of the Tribunal to give little weight to information in the declaration that was not restated in the appellant’s oral evidence was reasonable and understandable and could not give rise to a reasonable apprehension of bias.

66    In relation to the second ground of appeal, the Minister submits as follows:

(a)    Section 425 of the Act requires that the appellant have a meaningful opportunity to participate in an oral hearing to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. A visa applicant will be entitled to consider that those issues will be the issues that were dispositive of the matter before the delegate unless the Tribunal identifies any new issue.

(b)    The purpose of the second statutory declaration was to respond to the delegate’s decision and to provide further information in support of the appellant’s claims. It can be inferred that the statutory declaration was intended to respond, at least in part, to the delegate’s criticism that the appellant’s claims to have suffered harm in the past were not convincing and lacked detail. In other words, the issue arising in the review, that was well-known to the appellant, was that his account had not been convincing and lacked detail.

(c)    There was nothing to suggest that the Tribunal would accept the further detail given in the second statutory declaration − it was for the appellant to satisfy the Tribunal of the matters necessary to establish his claims. It follows that, contrary to the submissions of the appellant, the provenance of the appellant’s second statutory declaration, as such, was not an issue arising in the review.

(d)    In any event, even if the Court concludes that the provenance of the statutory declaration was an issue arising in the review, the transcript of the hearing reveals that the Tribunal squarely raised the issue with the appellant, that the issue was translated for the appellant, and that his lawyer responded. Further, although he was represented, the appellant did not seek additional time to respond to the issue. The Tribunal also agreed to accept further material from the appellant’s lawyer until 19 April 2013, and did not make its decision until 2 May 2013.

(e)    Section 425(1) of the Act “defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal” and that was “to be ‘invited to give evidence and to present argument relating to the issues arising in relation to the decision under review’”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33]. That was done. Further and in any event, the appellant has not demonstrated in evidence how the opportunity he was given was inadequate in circumstances where he was represented by competent lawyers and the issue in question was clearly identified to him at the hearing.

(f)    The mere raising of a new issue at a hearing without prior notice is not enough to constitute breach of s 425. Further, the fact that the Tribunal member had a discussion with the appellant’s lawyer that was not translated and a subsequent discussion after the hearing concluded does not take the matter any further. If a matter was raised in those discussions that was significant to the review, the appellant (through his lawyer) could have addressed the issue, or sought additional time to do so, before the Tribunal determined the matter.

Consideration

67    In relation to the first ground of appeal, in my respectful opinion, the primary judge erred in the application of the principles of reasonable apprehension of bias to the facts of this case. In paragraph [21] of the reasons (quoted in paragraph [49] above) the primary judge said that “It is well established that the Tribunal is under no obligation to make out an applicant’s case for him. The Tribunal does not have to ask the applicant questions to fill out or bolster his case.” While these propositions may be correct in general, they are not to the point in the present case, and suggest that the primary judge overlooked the unfairness of the way in which the Tribunal member questioned the appellant about the second statutory declaration early in the hearing, which gave the appearance that he would not bring an impartial mind to bear on the assessment of the appellant’s evidence. That questioning – described in paragraphs [29]-[33] above – resembled a memory test. The impression is that the questioning was designed to make the appellant fail in the task, and thereby confirm the member’s suspicions about the second statutory declaration. The appellant was repeatedly asked to say what was in the declaration, without any reference to the topics covered in the declaration. But most of the declaration responded, one-by-one, to particular comments made by the delegate in the earlier decision. It was unfair to expect the appellant to remember everything contained in the declaration without directing his attention to the adverse findings to which the declaration was responsive. This gave rise to an appearance that the member was seeking to confirm his own suspicions rather than impartially assess the evidence.

68    Paragraphs [22] and [23] of the reasons of the primary judge are responsive to a submission made below, which did not form part of the appeal submissions.

69    In paragraph [24] of the primary judge’s reasons, the judge said, in relation to the Tribunal’s weighting of the appellant’s oral evidence and the second statutory declaration, that it is for the Tribunal to give such weight to the evidence as it thinks fit. The primary judge also said in that paragraph that it was “entirely reasonable” for the Tribunal to give greater weight to the applicant’s oral evidence, which was entirely his own, rather than the second statutory declaration which had obviously been made with the assistance of his advisers. While it is correct to say that it is for the Tribunal to determine what weight it will give to the material before it, the issue in the present case is whether the circumstances give rise to a reasonable apprehension of bias. The fact that the Tribunal member said that he would give less weight to the second statutory declaration, and did so in his reasons, itself forms part of the consideration of that issue. The proposition that it is for the Tribunal to determine what weight it will give to the material before it, does not address the issue to be determined.

70    In paragraph [25] of the reasons, the primary judge relied on the fact that the member’s statement that “large portions” of the second statutory declaration were “confections” of the applicant’s lawyer was not expressed in the Tribunal’s reasons for decision, and that the Tribunal merely said that it gave more weight to the applicant’s oral evidence than to the evidence in the second statutory declaration. However, in applying the test for reasonable apprehension of bias in a case such as this, it is important to focus on the member’s conduct of, and comments made during, the hearing. This may give rise to a reasonable apprehension of bias, even though this may not be apparent from the decision-maker’s reasons.

71    For these reasons, in my view the primary judge erred in the consideration of this issue. I do note that the full transcript of the hearing and the audio file were not provided to the primary judge, and this may have affected the consideration of the issue.

72    In light of this conclusion, it is necessary to consider whether a reasonable apprehension of bias arises in the present case. The question is to be considered in the context of the nature of the decision to be made (an application for a protection visa under the Act) and the type of decision-making process (an inquisitorial hearing before an administrative decision-maker). Regard must be had to all of the facts and circumstances. In particular, it is necessary to consider the whole of the transcript and audio file of the hearing rather than just particular passages. It may be relevant to have regard to the tone in which statements were made, not just the words spoken.

73    It is apparent from the Tribunal member’s statements near the end of the hearing that he had concerns about the second statutory declaration from the first time he read it (see the extract from the transcript set out in paragraph [38] above). His initial reaction to the document was that it was not expressed in the sort of “voice” he would have expected from a man such as the appellant and he had suspicions that it was a lawyer’s document and not his document.

74    This provides some context in which to consider the member’s questioning of the appellant about the declaration early in the hearing (described in paragraphs [29]-[33] above). For the reasons set out in paragraph [67] above, the questioning resembled a memory test; the impression is that it was designed to make the appellant fail in the task, and thereby confirm the member’s suspicions. For the reasons set out in that paragraph above, it was an unfair mode of questioning to adopt in circumstances where the declaration was largely responsive to particular comments in the delegate’s decision. This gave rise to an appearance that the member was seeking to confirm his own suspicions rather than impartially assess the evidence.

75    In the passage set out in paragraph [38] above, the member stated: “Now, I’ve had the opportunity to speak with you for nearly three hours, and I asked you at the start what you said in that document and your evidence really covered about two paragraphs out of 24 paragraphs.” This was a significant exaggeration. If one considers only the evidence given in response to the member’s questions about the declaration early in the hearing (described in paragraphs [29]-[33] above), more than two paragraphs of the declaration were covered. If one considers the evidence given by the appellant during the whole of the hearing, it is fair to say that many of the paragraphs in the declaration were covered. The member’s significant exaggeration of this point gives the impression that his mind was made up (on the question whether the declaration was the appellant’s evidence), that he was not open to persuasion.

76    The member made a serious attack on the professional conduct of the applicant’s lawyer, in the passage quoted in paragraph [39] above. For example, the member said that, “You’re on very, very, very dangerous ground. You’re on very dangerous ground.” He accused her of seeking to mislead the Tribunal, and said that it might be grounds to report her to the Legal Services Board for professional misconduct. Whether or not this was justified (and I do not think it was), it might reasonably be apprehended by a fair-minded lay person that the member was so influenced by what he perceived to be the lawyer’s improper or inappropriate conduct, that he might not bring an impartial mind to his assessment of the appellant’s case. In particular, because the perceived impropriety related to the preparation of the second statutory declaration – an important part of the material relied on by the appellant – it might reasonably be apprehended that the member would not bring an impartial mind to his assessment of this material, but rather would seek to vindicate the views he had expressed regarding the lawyer’s conduct. Further, another part of the material relied on by the appellant was the 27 page written submission provided to the Tribunal before the hearing (see paragraph [22] above). Given that this was signed by the applicant’s lawyer, it may well be apprehended that, given the member’s severe criticism of the lawyer’s conduct, he would not bring an impartial mind to the consideration of that submission.

77    I note that, in the course of the member’s statements near the end of the hearing, he said on several occasions that he did not criticise the appellant for the second statutory declaration (see the passages quoted in paragraphs [38] and [39] above). While these are couched in terms favourable to the appellant, I do not think they overcome the problems I have discussed above. Indeed, they tend to confirm the impression that the member had made up his mind that the declaration did not contain the appellant’s evidence, albeit that this was not his fault.

78    Taking all these matters into account, and considering them in the context of the hearing as a whole, a reasonable apprehension of bias arises. That is to say, taking these matters into account, a hypothetical fair-minded lay person, properly informed as to the nature of the decision-making process, might reasonably apprehend that the Tribunal member might not have brought an impartial mind to making the decision.

79    Although I do not think it affects the analysis, I note for completeness that, in circumstances where a statutory declaration is prepared through an interpreter, some care needs to be taken in criticising the declaration for not being expressed in the “voice” of the person making the declaration. Further, in circumstances where different interpreters are used for the purposes of preparing the declaration and interpretation during a hearing, one cannot assume that one instance is a better representation of the appellant’s “voice” than the other. The ability and style of each interpreter may well be different. I also note for completeness that the process of preparation of the first sentence of paragraph 7 of the second statutory declaration, described by the applicant’s lawyer in the passage of the transcript set out in paragraph [39] above, is unremarkable. That is to say, if a lawyer is preparing a declaration (or affidavit) which is responsive to some other evidence or material, it is unremarkable for the lawyer to advise the declarant in terms of the first sentence of paragraph 7 (set out in paragraph [25] above), obtain the declarant’s assent to that sentence, and then include the sentence in the declaration.

80    In light of the above conclusion, it is unnecessary to consider the second ground of appeal. However, as the matter was the subject of argument, I make the following observations.

(a)    First, in my view, the question whether the second statutory declaration genuinely reflected the evidence of the appellant became one of the “issues arising in relation to the decision under review”, for the purposes of s 425(1) of the Act. Although not an issue before the delegate, it became an issue in relation to the decision under review, once the member had concerns about this, as reflected in the passages set out in paragraphs [38] and [39] above.

(b)    Secondly, at least to some extent, the member did raise the issue with the appellant. In the passage set out in paragraph [38], the member stated that there was one more matter that he needed to raise, reflecting a consciousness of the need to raise the issue. This passage was interpreted to the appellant. However, a complication sets in because the passage in paragraph [39] was not interpreted to the appellant, and this contained some significant further statements which arguably elevated the seriousness of the issue. It is in this passage that the member said, following an exchange with the applicant’s lawyer, that “it’s quite clear to me that large portions of the statutory declaration are confections of your own”. Expressed in that way, the issue was whether the second statutory declaration was a genuine document or, rather, contained concoctions of the lawyer. This way of framing the issue was not interpreted to the appellant and thus not directly raised with him.

(c)    Thirdly, the member did not ask the appellant questions directed at the issue or invite the appellant to respond to the issue. (The sentence which appears at the beginning of the passage set out in paragraph [39] above − “So do you want time to [put in] further submissions, [applicant’s lawyer]?” − related to another issue, namely the issue discussed at the foot of page 23 of the transcript.) The question is whether the raising of the issue as set out in paragraph [38] above was sufficient to give the appellant a meaningful opportunity to respond to the issue. Without expressing a concluded view, there is reason to doubt whether the appellant had a meaningful opportunity to respond to the issue given that the passage set out in paragraph [39] above was not interpreted and he was not asked any questions about, or invited to respond to, the member’s statements in that passage.

(d)    Fourthly, as noted above, on several occasions the member said words to the effect that he was not being critical of the appellant in relation to this issue. While couched in terms favourable to the appellant, from a procedural fairness perspective this may in fact have exacerbated the problem, because it tended to suggest to the appellant that there was no need for him to respond (because it was not his fault). But in fact there was a need for him to respond, because he was at risk of this portion of his material being excluded or given less weight.

Conclusion

81    For these reasons, I will allow the appeal, set aside the orders of the Federal Circuit Court, and in lieu thereof order that: the application for judicial review be allowed, the decision of the Tribunal be quashed, and the matter be remitted to the Administrative Appeals Tribunal to be determined according to law. In the circumstances, the Administrative Appeals Tribunal should be constituted by a different member. It is appropriate to order that the Minister pay the appellant’s costs, both of the appeal and of the proceeding in the Federal Circuit Court.

Associate:

Dated:    15 April 2016