FEDERAL COURT OF AUSTRALIA

MZZXM v Minister for Immigration and Border Protection [2016] FCA 405

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court made on 19 March 2015 be set aside.

3.    The decision of the Refugee Review Tribunal made on 3 December 2013 be quashed.

4.    The application for review dated 18 July 2011 be remitted to the Administrative Appeals Tribunal, differently constituted, to be determined according to law.

5.    The First Respondent pay the Appellant’s costs of and incidental to the appeal to this Court and the application to the Federal Circuit Court.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The appellant, a citizen of Pakistan, arrived in Australia on 23 October 2008 on a subclass 572 student visa and he has resided in Australia ever since. He applied for a Protection (Class XA) visa (“protection visa”) on 10 May 2010. On 20 June 2011 a delegate of the Minister for Immigration and Citizenship refused the application. In this proceeding the appellant appeals from a judgment of the Federal Circuit Court on 19 March 2015 to refuse his application for judicial review of a decision of the Refugee Review Tribunal on 3 December 2013, in which the Tribunal affirmed the delegate’s decision.

Procedural history

2    The appellant applied to the Tribunal to review the delegate’s decision on 18 July 2011. On 26 March 2012 the Tribunal, constituted by Member Sydelle Muling, decided to affirm the delegate’s decision (“the first Tribunal decision”). Although the Tribunal accepted some important parts of the appellant’s claims and evidence it made some adverse findings about the credibility of other parts of his evidence. The Tribunal accepted that, in the Federally Administered Tribal Areas of Pakistan where he had lived, the appellant faced a real risk of serious harm by Islamic militants for a reason set out in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“Convention”). However, the Tribunal considered it reasonable to expect him to relocate to Karachi or Lahore where it considered there was only a remote risk of him being seriously harmed for a Convention reason. Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention and found that the appellant did not satisfy the criterion for a protection visa set out in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

3    On 27 April 2012 the appellant applied for review of the Tribunal’s decision in the Federal Circuit Court. The Federal Circuit Court upheld the application on 15 May 2013, essentially because the Tribunal had failed to address the applicant’s claims to the extent they fell within the “complementary protection” grounds under s 36(2)(aa) of the Act (MZYXN v Minister for Immigration & Citizenship and Anor [2013] FCCA 134 (Reithmuller J)). The Court quashed the Tribunal’s decision and remitted the application to it to determine according to law.

4    On remittal the Tribunal was, again, constituted by Ms Muling. Prior to the hearing the appellant’s lawyer wrote to the Tribunal requesting that the application be allocated to a different member but it was not. At the hearing before the Tribunal on 5 September 2013 the applicant sought that Ms Muling recuse herself from hearing the application, but she refused to do so.

5    On 3 December 2013 the Tribunal, constituted by Ms Muling, again affirmed the delegate’s decision (“the second Tribunal decision”). Again, although the Tribunal accepted some important parts of the appellant’s claims, it made adverse findings regarding the credibility of his evidence, some of which were essentially the same as the findings in the first Tribunal decision. Again, the Tribunal decided that the appellant was not entitled to a protection visa because it was reasonable for him to relocate to a large urban city such as Lahore (although not Karachi) where it found there was not a real risk that the appellant would suffer serious harm for a Convention reason. The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention and found that the appellant did not satisfy the criterion for a protection visa set out in ss 36(2)(a) or 36(2)(aa) of the Act.

6    The appellant applied to the Federal Circuit Court for review of the second Tribunal decision. On 19 March 2015 the Federal Circuit Court dismissed the application (MZZXM v Minister for Immigration and Border Protection & Anor [2015] FCCA 609 (Judge Whelan)).

7    The appellant now appeals to this Court. The appellant’s primary ground of appeal is that the Tribunal did not accord him procedural fairness in the second Tribunal hearing, because the hearing was attended by a reasonable apprehension of bias on the part of Ms Muling. The appellant also alleged that the second Tribunal decision shows actual bias on the part of Ms Muling, evidenced by the fact that she copied parts of her first decision including some adverse findings as to the credibility of his evidence. The appellant alleged that the learned Federal Circuit Court judge erred in failing find that the Tribunal decision suffered from jurisdictional error.

8    For the reasons I set out below, the appeal must be allowed. In my view a fair-minded and informed lay observer of the second Tribunal hearing might have reasonably apprehended that Ms Muling might not bring an impartial mind to bear, and the member should not have refused the application that she disqualify herself. It is unnecessary to decide whether there was actual bias on the part of the member. The application must be remitted to a Tribunal, differently constituted, to be determined according to law.

THE First Tribunal HEARING

The materials before the Tribunal

9    The appellant applied for a protection visa on 10 May 2010. He provided a statement dated 1 March 2011 to the Department of Immigration and Citizenship in support of his application, which the Tribunal set out in full in the first Tribunal decision (at 24).

10    In summary, the appellant claimed that he was a citizen of Pakistan, of Salarzai ethnicity, and of Sunni Muslim faith. He said that he was born on 18 March 1983 in Chowatra, Bajaur Agency, in the Federally Administered Tribal Areas (“FATA”) of Pakistan, living at different times in Bajaur Agency, Takht-Bhai and in Peshawar. He said that he had five brothers and three sisters and that both of his parents had died since he came to Australia.

11    He said he was a keen cricket player and a singer in Pashto, Urdu and Hindi. He completed a Bachelor and Master of Arts, and a diploma in Information Technology in Pakistan. Prior to coming to Australia he worked as a 9th and 10th grade tutor in chemistry and biology, as an 8th grade tutor in mathematics and social studies. In February 2003 he obtained employment as a computer operator at the Defence College for Girls in Mardan, Bhai District. He stayed there until December 2003 and then went to Peshawar University to take a Masters degree in History. After starting at Peshawar University he continued to teach at the girls’ school one day a week, and when he finished his Masters degree in January 2006 he went back to the school and worked there full-time.

12    He claimed that the militancy of the Taliban in Bajaur Agency, and the effect of the operations of the Pakistan Army, had seriously detrimental effects on him and his family. He said that in 2007-2008 the Taliban increased its activities and destroyed many girls’ schools, colleges, and government and private infrastructure throughout Pakistan.

13    Importantly, he said that in April 2008 he was at his home in the Bajaur Agency on the weekend, when he was visited by Islamic militants. He claimed that they ordered him to leave his job at the girls’ school, stop taking an interest in cricket, stop listening to music and to grow a beard, otherwise they would kill him. He said that he took these threats very seriously and he immediately resigned from the girls’ school by telephone, confined himself to his home in the Bajaur Agency, and grew a beard.

14    The appellant said that in early August 2008 the Pakistan Army commenced operations against the Taliban in his area. He therefore moved to his cousin’s guest house in Takht-Bhai, to live with two of his brothers, “M” and “W”, who lived there as Internally Displaced Persons. He said that he had a little bit of peace during this period and he shaved his beard.

15    However, he said he then he went to live at another brother’s home in Peshawar for two weeks. While he was there during August 2008 he said that he was telephoned by unknown Islamic militants and again told to leave his job at the girls’ school (which he had already left), grow a beard, and stop listening to music, or they would kill him if they caught him in any place in Pakistan. After this telephone call he returned to Takht-Bhai to live with his other brothers. He remained there while the Army operations continued but said that he became depressed because he felt “unprotected”. He provided medical evidence in support of his alleged mental state at the time.

16    The appellant claimed that, as a result of the conflict between the Taliban and the Army, his family’s poultry farm in Bajaur Agency was destroyed, his home was badly damaged, his brother W became jobless, his brother M was unable to go to work because of the army operations, the wife of his brother “U” left her job of 18 years as a teacher because of the bombing of schools, another relative “S” was killed by a bomb in 2007, and in December 2010 the father of “S” was killed in a suicide attack. He claimed that the situation in Bajaur Agency was very dangerous, his life was jeopardised by the Taliban militancy, and he was very miserable as a result.

17    He stated that, with the financial assistance of his brother U and some relatives, he obtained a student visa to enter Australia and departed Pakistan legally on 22 October 2008.

18    The appellant also said that he had been informed by family members that in January 2010 two Islamic militants went to his family’s house and asked where he was. He said that his brothers told the militants that he was in Australia. In response, the militants said that he would be getting a western education, and they would not spare him if he came back to his home. He stated that he fears that he will be killed by the Taliban if he returns to Pakistan.

19    On 17 June 2011 the appellant provided the Department with four reports by his treating psychologist relating to his alleged major depressive disorder.

20    Following the delegate’s refusal of the application for a protection visa on 20 June 2011, the appellant applied to the Tribunal to review the decision on 18 July 2011. On 11 October 2011 the appellant made written submissions to the Tribunal in which he dealt with some of the matters raised by the delegate.

21    The Tribunal extracted these submissions in the first Tribunal decision (at 27). Amongst other things, the appellant said that two of his brothers lived in Bajaur Agency as Internally Displaced Persons, two brothers lived in Peshawar and one in Takht-Bhai. He said that all of his brothers were different from him as they had grown beards, were not as open-minded and, unlike him, were not a girls’ school teacher, computer operator, artist, Pashto singer and sportsman.

22    He explained that other staff members at the girls’ school had not had the same problems with the Taliban as him because they were living in Mardan, while he was living in Takht-Bhai and visiting Bajaur Agency every two weeks and when he was on vacation. He also explained the different treatment on the basis that they were not singers or sportsmen and did not have his other personal characteristics.

23    The appellant said that he was not threatened by the Taliban and until April 2008, even though he had been working in the girls’ school for the previous few years, because the Taliban were not as strong in Bajaur Agency before then. He said that he did not contact the police at that time because there was little point in doing so when that part of Pakistan was in chaos and kidnappings, killings, blackmail and other crimes had become common. He also noted that the Taliban had directed that people should go to its court rather than to Pakistan government’s court.

24    The appellant explained the Taliban telephoning him in August 2008 on the basis that the Taliban were busy in the war against the Army and, although they should have noted it, they did not appear to know that he was no longer in Bajaur Agency, that he was no longer teaching at the girls’ school and that he had shaved his beard. He said that he made a police report in relation to this telephone call, although he did not mention that in his witness statement.

25    He explained that he faced a risk of being seriously harmed by the Taliban when perhaps other Pakistani students did not, because he was open-minded, worked in a girls’ school, was a singer and a sportsman. He said again that unknown Islamic militants came to his former home in January 2010 and threatened that he would be killed if became back to Pakistan, because he would have become even more un-Islamic through living in a Western culture. The appellant explained that his brother truthfully told the Taliban that he was in Australia because they have a strong network of informers, and if his brother was caught out telling a lie he would be killed.

26    The appellant explained the delay in his application for a protection visa essentially on the basis that he had thought he would be able to complete his studies and apply for permanent residency, but became depressed and unable to concentrate due to the threats and difficulties he and his family faced.

The first Tribunal decision

27    The appellant appeared before the Tribunal on 13 October 2011 to give evidence and present argument assisted by an interpreter, and represented by a registered migration agent. In its decision the Tribunal set out his evidence in some detail. The Tribunal noted (at 40) the appellant’s further evidence regarding the January 2010 visit by Islamic militants:

The Tribunal asked the applicant why his brother would tell the Taliban that he was in Australia. He stated that if someone puts a gun to a person’s head, they will tell the truth. Two guns were put to his brother’s head.

28    The decision shows (at 44-45) that the Tribunal put to the appellant that it was required to consider whether it was reasonable and safe for him to relocate to another part of Pakistan and asked him if he could relocate to another part of Pakistan such as Lahore or Karachi in order to avoid the persecution he feared in his local area of Bajaur Agency. The Tribunal put to the appellant that it had some doubt that he would be of interest to the Taliban, and in places such as Lahore or Karachi, in light of country information about the capacity of the Taliban to communicate and coordinate with its various members, about different groups with different agendas in the Taliban, and his somewhat ordinary and limited profile. The Tribunal found that his profile would have been confined to the area of Bajaur. The Tribunal noted his evidence that being away from Bajaur in places such as Peshawar and Mardan he was not in as much risk as in Bajaur or Takht-Bhai, and said that relocating to a large city such as Karachi and Lahore would place him at even less risk.

29    The appellant rejected this proposition (at 45). He gave evidence that it is very easy for the Taliban to find him in Pakistan, they even know his bank account and how much he has. He gave an example of the Taliban kidnapping a person and then telephoning their family to ask for a ransom, telling them how much they had in the bank.

30    He said that he knew people who had been threatened in Bajaur Agency but who were killed in Karachi. He said that his brother had told him not to come to their house because if he did the Taliban might come and kill his children and family. He also said that the Muhajir Quami Movement (“MQM”) targeted Pashtuns in Karachi, but the Tribunal put to him that there is nothing to suggest that MQM is targeting all Pashtuns, and instead targets those who are associated with the Awami National Party (“ANP”).

31    The appellant said that many people are killed in Karachi every day and that would be no guarantee or security for his life in that city (at 47). He also said that it would be very difficult for him to find a job if he returned in Pakistan and relocated to a larger city. He could not work in a girls’ school or sing due to the Taliban, and that the Taliban would not permit him to live because he was against them.

32    The Tribunal noted (at 48) that it found the appellant’s evidence at the hearing consistent with the written documents submitted, and that the Tribunal’s focus would be on the issue of relocation. It invited the appellant’s advisor to make further written submissions on that issue.

33    On 9 November 2011 the appellant provided the Tribunal with a further lengthy submission addressing the issue of location and attaching newspaper reports and articles discussing the ongoing violence and killings in Pakistan. On 3 December 2011 the appellant submitted a further medical report from his treating psychologist regarding his major depressive disorder.

34    In the first Tribunal decision it set out detailed country information regarding:

(1)    the security situation in Pakistan;

(2)    the risks to life in FATA;

(3)    the risk to Sunni Pashtuns from the Taliban;

(4)    the risk of ill-treatment of returnees from Western countries;

(5)    the risk of ill-treatment of failed asylum seekers;

(6)    the risks of ill-treatment of artists; and

(7)    the risks to life in Karachi and Lahore.

35    The Tribunal accepted some important parts of the appellant’s claims. It accepted (at 83) that he is a Sunni Muslim born in Bajaur Agency in the FATA, and that he lived in Bajaur Agency and other areas in the same region of Pakistan. It accepted (at 84) the appellant’s claims about the strength of the Islamic militancy in Bajaur and the general situation in that area. It apparently accepted a UK Home Office report which said that the FATA experienced almost daily violence, and a Daily Times article which said that those living in Bajaur had heightened levels of fear and hopelessness. It accepted that the country information indicates that sectarian and militant attacks are rife in the FATA and in Khyber-Pakhtunkhwa (“KP”), and that the appellant’s evidence was consistent with the country information regarding the activities of the Taliban in the FATA, including in relation to the targeting of schools and people such as musicians.

36    The Tribunal found (at 85) that the appellant had provided generally consistent evidence regarding his experiences in Pakistan. It accepted that the appellant’s role as a teacher, particularly in a girls’ school, as well as his engagement in music and sport meant that he may have been of interest to the Taliban, and accepted his account of the threats made to him by the Taliban in April 2008. It did not, however, accept that any interest was because he is well educated. It accepted (at 94) the appellant’s evidence that his musical and sporting friends were targeted by the Taliban in FATA and KP.

37    Although expressing some “serious doubts” that Islamic militants would call the appellant to repeat their demands several months after he had obeyed them, the Tribunal accepted (at 86) that the appellant had received a telephone call from Islamic militants in August 2008 in which they reiterated their demands. The Tribunal said that, given that the appellant had moved away from Bajaur, the militants may have believed that he had resumed his previous activities and accordingly reminded him of their threat. However, the Tribunal said that this raised questions as to how much the militants actually knew about the appellant and the extent to which they were targeting him.

38    Importantly, the Tribunal rejected other important parts of the appellant’s evidence. The Tribunal said that it:

(a)    had “some difficulty” accepting the appellant’s evidence that two militants visited his home in January 2010 asking about his whereabouts. The Tribunal noted that it was a year and a half since the appellant last had contact with the Taliban and described it as “implausible” that the Taliban would still be pursuing him. The Tribunal also found it “difficult to accept” the appellant’s claim that his brother would have informed the Taliban that the appellant was in Australia given the possible implications this may have had for him. The Tribunal did not accept the appellant’s evidence that the Taliban put a gun to his brother’s head as the appellant had not previously made any mention of guns being brandished by the Taliban in his detailed statements (at 87). It did not accept that any visit was made to the appellants home by the Taliban or any other militants in January 2010;

(b)    did not accept the appellant’s evidence that he knew people who were threatened by Islamic militants in Bajaur but were killed in Karachi, describing this evidence as “vague and lacking in detail” (at 93);

(c)    did not accept the appellant’s evidence that his membership of the Salarzai tribe of FATA placed him at risk of serious harm, describing this evidence as “vague” and having “limited detail” (at 97); and

(d)    did not accept the appellant’s evidence that the Taliban had a sophisticated spy network and links with other extremist groups across Pakistan or that the Taliban has information about people’s bank accounts, describing that evidence as “implausible” (at 98).

39    The Tribunal accepted (at 88) that there was more than a remote possibility that if the appellant returned to Bajaur Agency he would face persecution by the Taliban or other Islamic militants in the FATA, now or in the foreseeable future, particularly if he were to resume his work as a teacher and his interest in music and sport.

40    However, the Tribunal said (at 91) that there was an estimated population of between four to seven million Pashtuns in Karachi which is the single largest concentration of ethnic Pashtuns outside traditional Pashtun lands. It said there was no information that people are targeted in Karachi simply for being Sunni Pashtuns, and that while there are targeted killings of Pashtuns they are related to a battle for political dominance between MQM and ANP.

41    The Tribunal also said (at 92) that there was an estimated population of one million Pashtuns in Lahore, which is approximately 15% of the population. It said that there is no information to suggest that this community is targeted for harm by extremist groups, that country information indicates that the Taliban does not have a presence in Lahore, and that the main Islamic extremist group is Lashkar-e-Jhangvi which targets Ahmadis and Shias. The Tribunal did not consider that there would be attacks directed against the appellant as a Pashtun in Lahore.

42    In the Tribunal’s view (at 94) the appellant could continue his teaching, his cultural pursuits and sporting activities in either Karachi or Lahore, or he could find work as a computer operator. It did not accept that he was likely to face serious harm, let alone be killed by the Taliban as his friends were, if he relocated to either Karachi or Lahore.

43    The Tribunal noted that the appellant was not a professional singer, describing his interest in singing as a hobby, and did not accept that he had a profile at the level which would draw attention to him in a large city, such as Karachi or Lahore. It concluded that he would not face a real chance of persecution if he returned to either Karachi or Lahore and continued his interest in music. It did not accept (at 98) that the appellant had a profile of a kind which would have extremists such as the Taliban pursuing him or tracking him down in parts of the country such as Karachi or Lahore.

44    The Tribunal did not accept (at 99) that the appellant being a Pashtun, a singer, a sportsman or a returnee from a Western country, or a combination of these factors would prompt the Taliban and pursue him or tracking outside of the Bajaur Agency. The Tribunal concluded (at 101-103) that the appellant could live in either Karachi or Lahore, and that if he did so there was no more than a remote chance that the appellant would face persecution on account of his Pashtun ethnicity, his profile as a teacher, singer and sportsman or his imputed political opinion based on the time he spent in the West.

45    The Tribunal also considered the evidence regarding the appellant’s mental health (at 100). It accepted that he suffered from a major depressive disorder but did not accept that the material supported the contention that the appellant’s state of mind was so fragile that he would be unable to find shelter or employment and be unable to sustain himself, particularly without the support of his family. It did not accept that his mental state would impact adversely or limit his ability to find accommodation or work in Karachi or Lahore, or cope with relocation to those areas, to such a degree that would make it unreasonable for him to relocate.

46    Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention and therefore not satisfied that the appellant satisfied the criterion set out in s 36(2)(a) of the Act (at 103). The Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa on 23 March 2012.

The first application for judicial review

47    On 27 April 2012 the appellant sought review of the Tribunal’s decision in the Federal Circuit Court.

48    On 15 May 2013 judgment was handed down in which Reithmuller J noted (at [5]) that the date on the front cover of the Tribunal decision was 23 March 2012 but the certified date on the last page was 26 March 2012. Section 2 of the Migration Amendment (Complementary Protection) Act 2011 (Cth), which introduced the complementary protection ground for the grant of a protection visa in s 36(2)(aa) of the Act, had come into force only two days earlier on 24 March 2012. His Honour said (at [9]) that it was clear that the Tribunal had failed to address the appellant’s claims to the extent that they could fall within s 36(2)(aa) and the Tribunal had therefore failed to deal with an integer of the claims.

49    The Court ordered that the Tribunal’s decision be quashed and the application be remitted to the Tribunal to be determined according to law.

The second Tribunal hearing

50    It is common ground between the parties that the remitted application was to be heard de novo by the Tribunal.

51    On 17 June 2013 the appellant notified the Tribunal that he had appointed Helen Glass of Glass Lawyers to represent him in the remitted application. On 7 August 2013 the Tribunal wrote to Ms Glass inviting the appellant to appear before the Tribunal to give evidence and present arguments upon 5 September 2013.

The request that the Tribunal not be constituted by Ms Muling and the application for recusal

52    In the appeal to this Court I gave leave to the appellant to file an affidavit of Ms Glass sworn 28 November 2014, in which she deposed to her attempts to have the application heard by a Tribunal member other than Ms Muling. Her evidence was not contested by the Minister and I accept it.

53    On 7 August 2013 Ms Glass telephoned the Tribunal and was informed that the Tribunal hearing the application on 5 September 2013 was to be constituted by Ms Muling. On 7 August 2013 Ms Glass sent a letter by facsimile to the Tribunal for the urgent attention of Senior Member Murphy which stated:

We refer to the above into the “Invitation to Appear before the Tribunal” which we received today. We note that this matter has been constituted to Member Sydelle Muling.

Sydelle Muling was the member who heard the original RRT appeal application and her decision dated 23 March 2012, affirming the delegate’s decision was quashed by Order of the Federal Circuit Court on 15 May 2013. We have been instructed by our client to notify you that he objects to the same Tribunal member, whose decision was quashed, reviewing his claim again.

Our client is entitled to have his claims for protection heard afresh and this member has already made a negative determination about his claims. As a matter of fairness, the Tribunal should be constituted by a different member.

We look forward to your further advices in this regard.

(Emphasis added.)

54    The Tribunal did not respond to this letter or to two follow-up facsimiles from Ms Glass on 16 August 2013 and 28 August 2013. On 29 August 2013 Ms Glass telephoned the Tribunal and was informed that there would be no change to the constitution of the Tribunal for the hearing listed on 5 September 2015.

55    At the commencement of the second Tribunal hearing on 5 September 2013 Ms Glass applied for Ms Muling to disqualify herself, but she refused to do so.

The materials before the Tribunal

56    The appellant provided a further detailed statutory declaration dated 16 August 2013 and further detailed submissions. In broad terms the submissions related to the background of the appellant’s claims for protection, the current situation in Pakistan, the risk of harm to the appellant in Pakistan as a result of the particular profile, the risks regarding relocation, and the requirement of complementary protection. Attached to the submissions was a large amount of country information including an Issues Paper prepared by the Tribunal titled “The Pakistan Taliban”.

57    The second Tribunal decision set out the statutory declaration in full (at 33). Amongst other things, in his statutory declaration (at 2-3) the appellant said that he was a member of the Salarzai Tribe of Pashtuns, located in the FATA and that his tribe has a dialect, social way of life and cultural practices distinct from other Pashtuns in other areas. He claimed that he was previously a bright, inquisitive and sociable person who enjoyed study and enjoyed teaching. He said that he wrote poetry and loved to sing, and was much in demand to sing at weddings and other social gatherings in which only men would attend. He said that sometimes he was accompanied by a friend playing the sitar (who had since been killed by the Taliban) or another friend playing the rabab. People would record him singing and he also recorded his songs on a cassette. He said he was a good cricket player who would play inter-village cricket and he was well-known in the area for these activities. He said that the Taliban hate music and call it “un-Islamic”.

58    The appellant described (at 5) the occasion when the Taliban and came to his family home in the last week of April 2008. He said that they were dressed in Taliban style, with turbans, the lower half of their faces concealed and were carrying Kalashnikov rifles. He reiterated that they told him to stop singing, stop working in a girls’ school, stop teaching and to grow a beard. He felt he had no choice but to comply with their directives otherwise he would be killed, as had others who failed to comply. He said that he knew a grocery shop owner, whose shop was 2 km from his home, who was killed in March 2008 by being tied naked to a car and dragged through the streets because he refused the Taliban’s demand for money. He said another friend, a known homosexual, was publicly shot dead by the Taliban in 2007.

59    The appellant reiterated (at 6) that in August 2008, after the Pakistan Army military campaign against the Taliban in Bajaur Agency had started, while he was staying with his brother in Peshawar, he received a call on his mobile phone from a person identifying himself as a member of the Taliban. The caller repeated the previous demands made of him. He said that he was shocked and scared that the Taliban had his mobile phone number and also that he was still being targeted. He had hoped that the Taliban would have forgotten about him. He went to the local police to make a report, not because he thought the police could protect him but so that if anything did happen to him or his family there would be a written report.

60    He said (at 7) that he then returned to where his brothers were living Takht-Bhai and stayed there at home, with his mobile telephone turned off. He said that almost immediately he was notified of the grant of a student visa to Australia he departed Pakistan, leaving on 22 August 2008.

61    The appellant said (at 8) that the Taliban could not be underestimated, as they have a strong network with other militant organisations, a strong and well-developed communication system and their own radio in Bajaur Agency. He said that “Talibanisation” is widespread in Bajaur Agency, and that the poor and uneducated could only get low level jobs in cities like Rawalpindi, Islamabad, Peshawar, Lahore, Faisalabad and Karachi, and they were paid a lot more by the Taliban. He said that in the larger cities the Taliban are undercover and are not so easily recognised as they shave their beards, cut their long hair and work as labourers on roads and on construction sites.

62    The appellant said (at 12-13) that it is not easy for a Pakistani from one state to easily assimilate into another. Each state has its own language, and people in the different states prefer their own ethnicity. For example, he said, the Pashtuns of the FATA are treated with hostility and suspicion throughout Pakistan, in part because the FATA are lawless areas and also because Pashtuns are considered the lowest socio-economic group. He said that people in Karachi hate Pashtuns and have segregated roads, hospitals and schools from them. He said that his mother tongue is Pashto and that he speaks the national language, Urdu, with an accent which marks him out as a Pashtun from the FATA. In his view it would be a matter of time before Taliban supporters in a big city such as Karachi or Lahore worked out that he was not a supporter of the Taliban and that he belonged to the Salarzai tribe which is anti-Taliban. He said (at 16) that everyone knows a member of the Salarzai tribe and he would be a marked man anywhere in Pakistan.

63    He said (at 15) that during the last Tribunal hearing he was asked why he was specifically targeted and other staff members at the girls’ school were not. In response he said:

I explained that the other teachers were not singers or well known like me. But who can tell who will be targeted and who will be spared. Undercover Taliban killed Doctor Mohammed Farrooq in Mardan city. His clinic was 50 m away from Dr Jalaludin’s and Doctor Tajudin’s clinics. They are still practising and working in their clinics so why were they not killed? Doctor Farooq was an academic, maybe that was the reason.

64    The appellant said (at 17) that the current situation in the FATA is chaotic with widespread civil disobedience and political lawlessness. He said that the killing of a high Taliban official had infuriated the Taliban and they would take revenge. He said that looting, plundering, kidnapping and suicide bomb blasts are very common and there was no work, no big projects and much unemployment. He said that the poor people are being brainwashed and groomed for suicide attacks, which the Taliban leaders said was the price of paradise.

65    To illustrate his fear of persecution in Pakistan the appellant noted (at 7) that he had never returned there, not even for the funerals of his father who passed away in November 2008, his mother who passed away in March 2010, or his sister. Although he said that he missed his family and his old life, he considered that he could not safely return to Pakistan.

66    He said that his brothers and sisters all lived in Peshawar, Takht-Bhai, Bajaur Agency and Mardan. If not for the risk of persecution he said that he would prefer to work in Mardan where he previously worked as a teacher (at 18-19).

67    He said (at 22) that he while he had not published a book of poetry, he shared his sonnets and palms on Facebook. He used to sing in Hujra, which he said is the biggest social institution for Pashtuns, and also used to sing in marriage ceremonies before large numbers of people. As a result he said that his face was known by many people who he did not know. He also said that he played cricket, was “really popular” and had been a good batsman and had taken part in village to village competitions. He said that many people knew him on the basis of his sporting activities. He also said he was well-known because of his teaching. He taught at Hira public school in Takht-Bhai in 2003 in the evenings and during the day taught at the Defence girls school in Mardan. When he finished his Masters he taught at the Islamia public school in Takht-Bhai and continued to teach at the girls school.

68    As a result of these activities he said that many people knew him, many of whom had joined or supported the Taliban. He said that if he tried to make a life for himself in Karachi or Lahore his usual activities in teaching, singing, playing sport or writing poetry would bring him to the attention of the Taliban, and if he did not do those things he would suffer a life of privation and misery.

69    On 7 October 2013 the appellant provided the Tribunal with a further statement dated 1 October 2013, further country information and extracts of the appellant’s poetry published on Facebook. The country information was primarily newspaper articles and reports which responded to the Tribunal’s suggestion during the hearing that the appellant could relocate to Karachi or Lahore.

The second Tribunal decision

70    The Tribunal handed down the decision on the remitted application on 3 December 2013. The Tribunal again accepted some important parts of the appellant’s claims and evidence. Amongst other things, it accepted that the security situation in Bajaur Agency and more generally in the FATA continued to be as described by the appellant. It accepted that the security situation remained volatile and that sectarian and militant attacks are rife. Again, the Tribunal found (at 37) that the appellant had provided generally consistent evidence regarding his experiences in Pakistan which was consistent with country information (at 44). The Tribunal accepted the appellant’s evidence that the Taliban were targeting schools and people associated with the arts, such as musicians and that this was consistent with country information (at 44).

71    The Tribunal accepted that the Taliban came to the appellant’s home in April 2008 and ordered him to leave his job at the girls’ school and grow a beard (at 40), and that he had no choice but to comply with their demands (at 41). It accepted that he may have been ordered to stop singing and engaging in sporting activities given such activities are considered “un-Islamic” by the Taliban (at 40). The Tribunal also accepted that, taking into account the appellant’s position as a teacher, and his involvement in music and sport, he may have come to the attention of the Taliban in his area (at 40).

72    The Tribunal accepted that in August 2008, while the appellant was living with his brother in Peshawar, he received a phone call from someone identifying himself as a member of the Taliban who repeated the demands made in April 2008 (at 42), and that the appellant thereafter returned to Takht-Bhai and remained there until he came to Australia (at 43).

73    The Tribunal again rejected other important parts of the appellant’s claims and evidence. The Tribunal said that:

(a)    it had “some difficulty accepting” the appellant’s evidence that two militants went to his home in January 2010 asking about his whereabouts, finding it “implausible” that the Taliban would be pursuing him after such a lengthy period of time. The Tribunal found it “difficult to accept” the appellant’s claim that his brother would have informed the Taliban that the applicant was in Australia given the possible implications this would have for the appellant. The Tribunal found it “implausible” that if this incident had in fact occurred, which involved his brother being threatened with a gun, the appellant would not referred to it in his statutory declaration of 16 August 2013 (at 43). The Tribunal did not accept that any visit was made to the appellant’s family home by the Taliban or any other militants in January 2010;

(b)    although it accepted the appellant’s evidence that he sang amongst friends and acquaintances at the hujra, it did not accept his evidence that he had performed at weddings. On the basis of what the Tribunal said were inconsistencies in his evidence it found that the appellant fabricated this aspect of his claims in an effort to “bolster his profile” (at 57);

(c)    it did not accept the appellant’s evidence that he had sung on two or three occasions at welcome or farewell parties at university, or that he was involved in organising the music program for such events (at 58). It did not accept the appellant’s evidence that people had recorded his singing, and that he recorded his songs on cassettes, noting that he made no mention of this before his statutory declaration of 16 August 2013 (at 58);

(d)    while it accepted that the appellant enjoyed writing poetry and had engaged in such activities when he was in school, it did not accept his evidence that he had posted poetry on Facebook. It found that the appellant fabricated this evidence with the sole reason of strengthening his claims (at 61);

(e)    it found his claim that perhaps 2000, 5000 or 10,000 people knew that he had been in Australia to be “implausible” (at 65); and

(f)    his evidence that if he resumed teaching in Lahore his name would be circulated by his students among 300 to 400 homes in a week was “implausible”.

74    The Tribunal accepted (at 44) that there was more than a remote possibility that if the appellant returned to Bajaur Agency he may face persecution from the Taliban or other militants operating in the FATA, particularly if he were to resume his work as a teacher, and continue his interest in music and sport. Based on the country information the Tribunal did not consider that state protection would be available to protect him from any such harm (at 46).

75    The Tribunal reached a different conclusion as to the suitability of Karachi as a place to which the appellant could relocate. It accepted that in light of the appellant’s particular profile and circumstances and the more recent independent information about the situation in Karachi, it would not be reasonable for him to relocate to Karachi (at 49).

76    The Tribunal did not, however, take the same view of Lahore. It did not accept that there was anything in the country information to suggest that the sizeable Pashtun community in Lahore was targeted for harm by extremist groups. While it accepted that his Salarzai tribe had always opposed the Taliban, it did not accept that as a member of his tribe he would be subject to serious harm in a large city such as Lahore because he would be imputed with an anti-Taliban political opinion, because of his ethnicity, or for any other reason. The Tribunal did not accept that the material showed that the appellant’s Salarzai ethnicity and the activities of his tribe in the FATA would have any bearing on his ability to safely relocate to Lahore (at 52).

77    While the Tribunal accepted that there was terrorist and sectarian violence in Lahore it did not accept that such attacks would be directed against the appellant as an individual, or as a member of a group such as Pashtuns, Pashtuns originating from the FATA, or Pashtuns who are members of the Salarzai tribe. It found the likelihood of him being caught up in an act of random generalised violence in Lahore to be remote (at 53).

78    The Tribunal did not accept that there was a real risk that the appellant would suffer harm in a large city such as Lahore either as a teacher (at 54), or because of a continued interest in cricket (at 62) or in continuing to sing which it characterised as a “pastime” (see 56 and 59). It did not accept that the appellant would not be able to continue to read English literature in Lahore or write a book on English grammar without coming to the attention of the Taliban (at 60). It differentiated the appellant’s position from that of Dr Farouk who had been killed by the Taliban, and did not accept the appellant’s contention that Dr Farouk had been killed because he was an academic or an author, instead stating that he had been targeted because he had written a book against the Taliban. The Tribunal did not find the appellant’s circumstances analogous either to those of Dr Farouk or that of some journalists who had been killed by the Taliban.

79    The Tribunal did not accept the appellant’s claim that the Taliban were interested in him, and might harm him in Lahore, because he was educated or had a western education (at 40 and 65). It found that his profile was “somewhat ordinary and limited” compared to the governors, ministers and political leaders in a newspaper article about a “Taliban hit list”, and not of a kind which would cause extremists to pursue him to other parts of the country such as Lahore (at 64).

80    The Tribunal did not accept that the appellant being a Pashtun, a teacher, singer, sportsman, poet, lover of English literature or the fact that he had returned from a Western country, or a combination of these factors, would prompt the Taliban to track him outside of the Bajaur Agency. It did not accept that these factors would result in him being of any particular interest to the Taliban or other militants, or at a real risk of serious harm, if he relocated to Lahore (at 66).

81    On the matter of the appellant’s mental health, the Tribunal accepted he had been diagnosed as suffering from a major depressive disorder but noted that the appellant had not provided any further medical evidence regarding his mental health since December 2011. The Tribunal made a finding that his mental health had not deteriorated since that time.

82    The Tribunal did not accept that the appellant had a “fragile state of mind” or that he would be unable to find shelter or employment and therefore be unable to sustain himself, particularly without the support of his family. The Tribunal did not accept that the appellant’s mental state adversely impacted or limited his ability to find accommodation or work in Lahore and cope with relocation to such a degree that it would make it unreasonable for him to do so (at 67). It found that the appellant had demonstrated capability and resourcefulness while studying and living away from home, family and friends in Australia (at 69) and that he was well-educated and had extensive work experience as a teacher and tutor and as a computer operator which meant that he had good employment prospects in an large city such as Lahore.

83    Having summarised (at 70) its finding that there was not more than a remote chance that the appellant would face persecution if he relocated away from Bajaur Agency, the FATA and KP, the Tribunal went on to consider the issue of complementary protection under s 36(2)(aa) of the Act (at 72-79). For the same reason that the Tribunal found the appellant faced a real chance of persecution if he returned to the FATA, it found that there would be a real risk that the appellant would face significant harm there, including arbitrary deprivation of life, and cruel, inhuman or degrading treatment or punishment. However, it did not accept that the appellant faced a real risk of significant harm if he were to relocate to another part of Pakistan, such as Lahore (at 76). It found that having regard to the applicant’s particular profile and circumstances it was reasonable, in the sense of being practicable, for the applicant to relocate (at 77), and said that it was not satisfied that the appellant was a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa) (at 79).

THE APPLICATION TO THE Federal Circuit Court

84    On 5 March 2014 the appellant applied to the Federal Circuit Court of Australia for judicial review of the second Tribunal decision. He later filed an Amended Application which provided as follows:

1    The Tribunal failed to determine the review application according to law as ordered by this Honourable Court in its judgement [sic] of MZYXN v Minister for Immigration & Citizenship & Anor [2013] FCCA 15 May 2013.

Particulars

(a)    Judge Reithmuller ordered that the application be remitted to the Tribunal according to law because the Tribunal had failed to assess whether Australia had complementary protection obligations to the Applicant pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (as amended – “the Act”.

(b)    The application was remitted to the Tribunal and the Tribunal constituted the application to the same Member who presided over the first review.

(c)    The Tribunal in the second review assess the applicant’s claims against the Refugees Convention and decided that [sic] applicant’s fear of persecution was not well founded because it was reasonably practicable for him to relocate to Karachi or Lahore but failed to determine whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.

(d)    The Tribunal concluded that as it had decided that the Applicant could relocate, it automatically followed that the Applicant could not satisfy s 36(2)(aa) of the Act and that no further consideration of whether the Applicant was at risk of significant harm as defined in s 36(2A) was required.

(e)    The Tribunal’s conduct of the second review indicates that it misconceived its task and that it was predisposed to find against the Applicant regardless of the evidence he presented and to adhere to the conclusions it reached in the first review.

2    Further or in the alternative to Ground One, the Tribunal fell into jurisdictional error by misconstruing the relocation principle enunciated by the High Court in SZATV v MIMIA [2007] HCA 40; (2007) 233 CLR 18.

Particulars

(a)    The Tribunal failed to consider whether the Applicant’s attributes would attract significant harm regardless of where he lived in Pakistan.

(b)    The Tribunal assumed that as the applicant had moved to Australia, he had the resources and ability to relocate to Karachi or Lahore when there was no evidence before the Tribunal of the nature and extent of resources required for any such relocation.

85    Given my view on the first ground of the application it is unnecessary to deal with the judgment of the Federal Circuit Court on the second ground.

86    The appellant was legally represented, and counsel made written and oral submissions on the first ground. The primary judge set out the submissions in the judgment (at [20]-[28]) which may be summarised as follows:

(a)    Section 421 of the Act provided that the Principal Member may give a written direction about who is to constitute the Tribunal, which was required to be consistent with the Act and the Migration Regulations 1994 (Cth) (“the Regulations”): s 420A(1) of the Act. Principal Member Practice Direction No 1 of 2013 provided that the Principal Member was required to give consideration to “whether the tribunal should be constituted by a different member if a person has previously had a case reviewed, or a case has been remitted for consideration”;

(b)    Any direction by the Principal Member was required to comply with the statutory objective in s 420(1) of pursuing a mechanism of review that is fair, just, economical and quick and the first two objectives should be given primacy;

(c)    common law principles relating to procedural fairness and the conduct of a rehearing should be applied, including the general principle that a judge should not hear a case if there may be a reasonable apprehension on the part of the parties or an informed observer that the judge might not bring an impartial or unprejudiced mind to the question to be resolved: Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17;

(d)    on remittal the hearing by the Tribunal is de novo and the Tribunal is not bound by the findings of the first decision-maker. The appellant referred to the decision of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 (“Wang”) at 525 [16] where his Honour said “a fresh decision-maker might see the matter differently even if the information remains substantially the same”;

(e)    it is very difficult if not impossible for a decision-maker to ignore what has gone before and avoid the natural tendency to justify one’s original conclusions, and a member of the Tribunal should not hear a case if, in all the circumstances, the applicant might entertain a reasonable apprehension that the member might not bring an impartial mind to the determination: Amarjit Singh v Minister for Immigration & Multicultural Affairs [1997] FCA 809 (Unreported, 19 August 1997) (“Amarjit Singh”)at 12 (Mansfield J);

(f)    the appellant relied on two other decisions of this Court, namely Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 (“Kathiresan”) (Gray J) and Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (“Eshetu”) (Davies, Burchett and Whitlam JJ). In Eshetu Davies J said:

Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind;

(g)    in the second Tribunal decision the member determined that the appellant could relocate internally within Pakistan, arriving at this conclusion based on assumptions without any evidentiary basis because she had already made up her mind on the issue. The appellant again referred to the decision in Wang, where Gleeson CJ said (at [16]):

...as a practical matter, if [the member who undertook the previous review] undertakes the review, then, unless there is a significant change in the information before the Tribunal, [that member] is unlikely to alter the view of the facts [the member] took previously...

87    The primary judge set out the Minister’s submissions, and the authorities on which the Minister relied, on the first ground of the application (at [33]-[45]), including that:

(a)    the standard that applies to an administrative decision-maker is not the same as the standard which will apply to a judge. The fair-minded observer will have an informed understanding of how the Tribunal operates, including that Tribunal members have a wealth of expertise and knowledge of conditions in particular countries (at [36]);

(b)    as a result of the way in which the statutory scheme operates, there is no hearing before the Tribunal unless the member cannot form a favourable view of the applicant’s case on the materials. The applicant needed to establish that there was some incapacity to change the member’s preliminary view; and that there was a predisposition to a result such that it can be said there is a reasonable apprehension of bias (at [36]);

(c)    the mere fact of the Tribunal being constituted by the same member upon remittal did not give rise to actual or apprehended bias. The applicant had not established that the Tribunal had a predisposition about the outcome of its review, or that this predisposition was incapable of alteration, nor how a fair-minded and informed observer might reasonably apprehend the possibility of such an unalterable predisposition on the part of the Tribunal (at [37]);

(d)    the decisions cited by the applicant could be distinguished from the present case. For example, Kathiresan involved adverse credibility findings against an applicant, which was not the case here. There was no suggestion in the present case that the Tribunal had approached the matter in a way which relied on adverse credibility findings (at [38]);

(e)    the applicant had not suggested that the Tribunal was capricious, inappropriate or hostile any way towards the applicant, and relied entirely on the proposition that, findings having been made, it is hard to disturb them. The applicant needed to establish that there was an appearance that the Tribunal merely paid lip service to all the new material and, on a fair assessment of the Tribunal’s reasons, that could not be said to be the case. The Tribunal had regard to the new material as well as new evidence that was put before it (at [39]); and

(f)    on neither occasion before the Tribunal did credibility findings play any material part in the Tribunal determination. In both decisions of the Tribunal the decision turned on the question of relocation. On this point there were different findings on remittal. With the additional material before it, the Tribunal determined that relocation to Karachi would not be reasonable, which stands clearly against any reasonable apprehension of bias on the Tribunal’s part (at [40]).

88    The Minister relied on:

(a)    SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] (Weinberg, Stone and Jacobson JJ), where the Full Court said that:

Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she had a mind closed to any argument in support of a contrary conclusion;

(b)    Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 (“Epeabaka”) (Kirby J) at [90], where his Honour said that the test for disqualification is a case of apprehended bias:

…is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion obliged that it should be “firmly established”;

(c)    Minister for Immigration and Citizenship v MZXPA [2008] FCA 185; 100 ALD 312 (“MZXPA”) (Sundberg J) and the Full Court’s decision in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 (“NADH”) (Moore, Tamberlin and Allsop JJ), in particular the judgment of Allsop J (as he then was); and

(d)    Comcare v Broadhurst (2011) 192 FCR 497; [2011] FCAFC 39 (“Broadhurst”) (Downes, Tracey and Flick JJ), in which Downes J said at [30]-[32]:

The rehearing of matters remitted to the Tribunal is to be distinguished from the rehearing of matters remitted by an appellate court to a trial court. In the former case an appeal can be allowed only on a question of law. Most appeals in the latter category will be rehearings where all issues are open, including findings of fact. Reversal on a question of law will rarely justify a rehearing by a Tribunal differently constituted.

A rehearing before a Tribunal differently constituted will inevitably be more expensive, both to the parties and to the Commonwealth. Except in a clear case the interests of justice and the statutory requirements will generally best be served by a hearing before the Tribunal constituted as it was originally.

Practical matters such as the workload of the Tribunal and its members, as well as other similar matters, will also be relevant to how the Tribunal should be constituted for a matter remitted for further hearing.

The Minister accepted, referring to Broadhurst and Jordan v Australian Postal Commission (2007) 47 AAR 321; [2007] FCA 2028 (Buchanan J), that a matter which might be relevant to whether an application should be heard by the same member on remittal was whether or not there were adverse credibility findings made on the previous occasion.

89    The learned primary judge set out her conclusions on the first ground of the application at [47]-[61]. Her Honour commenced by accepting that the requirement for the Tribunal to provide a mechanism of review that is fair, just, economical, informal and quick does not mean that it is not required to bring an impartial mind to the process of decision-making (at [48]).

90    Her Honour noted that the Tribunal is not a court and accepted that the requirements for a tribunal engaged in administrative decision-making are not the same as that of a judge determining matters in the context of adversarial litigation (at [49]). Her Honour cited with approval (at [50]) the observations of Allsop J in NADH at [19]-[20] (with which Moore and Tamberlin JJ agreed) where his Honour observed that the Tribunal does not administer public justice and that the standards applicable to the judiciary may not be easily transposable to administrative decision-makers acting in private and investigating matters for themselves without the assistance of counsel. His Honour observed that for a complaint of apprehended bias based on the Tribunal’s procedure to be meaningful it must carry with it an assertion of the apprehension of a possibility of predisposition toward a result other than the result reached by a fair evaluation of the material before it.

91    Her Honour cited with approval the remarks of Allsop CJ in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”) (Allsop CJ, Flick and Robertson JJ) at [2], where his Honour explained the test in relation to apprehended bias and said that the enquiry in that regard is directed not to the correctness of the outcome but to the apparent fairness of the process.

92    At [52] her Honour adopted the remarks of Sundberg J in MZXPA where his Honour said (at [13]):

The hypothetical fair-minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. That follows from s 425 of the Act, which provides in part:

(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 …

…

Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [23] and SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 965 at [15]-[16].

93    At [53] her Honour cited with approval the remarks of Gleeson CJ in Wang, where his Honour concluded that, on remittal, justice requires that a claim must be considered fairly and on its substantial merits. Justice did not require selection of a decision-maker who had already shown him or herself willing to accept part of the claimant’s case.

94    Her Honour dealt with the decision in Broadhurst (at [55]) by observing, correctly in my view, that the real question before the Court was not one of power or the appropriateness of an order for a differently constituted Tribunal. The question was whether a rehearing by the same tribunal member gave rise to a reasonable apprehension of bias.

95    In the primary judge’s view (at [54]) the difficulty the appellant faced was that the decision in Amarjit Singh was determined in a statutory context which is different to the current provisions, and which did not involve the remittal of a matter following judicial review. In her Honour’s view, while the judgment in Eshetu involved an appeal from the decision of a single judge it was concerned with the interpretation of a different provision of the Act and in circumstances where the judge had found that the tribunal’s decision was so unreasonable that no reasonable tribunal could have arrived at it. Similarly, the decision in Kathiresan was based in the finding by Gray J that the tribunal’s decision was “fundamentally flawed” and “must be quashed”, and his “serious disquiet” about the tribunal’s approach.

96    The primary judge considered (at [57]) that the decision to remit the matter to the same member required a balance of the requirements to determine the matters fairly and justly, but also economically and quickly. Her Honour said:

… Where, as in MZXRE, the decision of the Tribunal that is the subject of review was not made on the basis of the merits of the case but on the basis that the Tribunal believed it lacked jurisdiction, then there would appear to be nothing unfair or unjust about remitting the matter to the same member. On the other hand, if the Tribunal had made extensive findings of credibility adverse to the applicant, it would be prudent, to say the least, to refer the matter to another member on remittal. At the end of the day however, the question is whether a fair-minded and informed observer might reasonable apprehend that the member had a predisposition about the outcome and it might reasonably be inferred that nothing the applicant said or did was likely to alter that.

97    Her Honour said (at [58]) that in the first Tribunal decision the Tribunal made a number of findings with respect to the evidence, observing that with respect to all but the issue as to whether his brother in been visited by militants in January 2010, the Tribunal accepted his evidence about his experiences and the situation in the FATA. Her Honour also said that the successful judicial review of the first Tribunal decision was not based on the unreasonableness of the decision or a failure by the Tribunal to approach the application of the Act in an appropriate manner, but a failure to give any consideration at all to the complementary protection provisions of the Act.

98    Her Honour said (at [60]-[61]):

Not unexpectedly, the second decision of the Tribunal came to similar conclusions about the Applicant’s evidence as on the first occasion. With respect to the issues of his experiences and potential exposure to persecution or significant harm in the FATA, the conclusions made by the Tribunal were not adverse to the Applicant. It is evident, however, that the Tribunal also considered material which post-dated its first decision with respect to country information, and specifically considered material presented by the Applicant. It is significant that the Tribunal accepted, on the basis of new material, that it was not reasonable for the Applicant to relocate to Karachi but, after considering the evidence, concluded that he could relocate to Lahore.

The Tribunal’s conclusions and the way the material was addressed does not suggest that the member came to the second hearing with a fixed view of the outcome and could not be persuaded to alter her views.

99    For these reasons her Honour dismissed the first ground of the application for judicial review.

The APPEAL to this Court

100    The Notice of Appeal set out the following grounds:

1.    The decision of the Federal Circuit Court of the RRT is affected by jurisdictional error.

PARTICULARS

The Tribunal and likewise the Court failed to determine the review application according to law as ordered by this Honourable Court in its judgment of MZYXN v Minister for Immigration & Anor (2013) FCCA 1334 15 MAY 2013.

Further or in the alternative to Ground One, the tribunal and likewise the Court, fell into jurisdictional error by misconstruing the relocation principle enunciated by the High Court in SZATV v MIMIA HCA 40, (2007) 233 CLR 18.

2.    The decision of the Refugee Review Tribunal is made with a denial of procedural fairness.

PARTICULARS

The matter was remitted by the Federal Circuit Court, in a decision dated 15 May 2013.

The matter when remitted to the Refugee Review Tribunal, was heard by the same Tribunal member (despite being objected to by the Applicant), who had made the original decision and the Court by affirming the member’s decision not to disqualify himself [sic] has erred.

The Minister’s submissions

101    The Minister argued the appeal on essentially the same basis as before the Federal Circuit Court, including that:

(a)    in order to make out a case of actual bias, the appellant must establish that before reaching its decision the Tribunal had made up its mind and was incapable of being persuaded differently. In this regard the Minister relied on Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (“Jia Legeng”) at 531 [72];

(b)    for the appellant to prove that the Tribunal’s decision was affected by apprehended bias, he must “firmly establish” that a fair-minded and informed observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision (citing NADH at [14] and MZXPA at [12]-[19] and [26]) or was predisposed toward a result other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion (NADH at [20]);

(c)    the mere fact of the Tribunal being constituted by the same member upon remittal did not itself give rise to actual or apprehended bias (citing Wang; MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552; [2009] FCAFC 82 at 561 [33] (“MZXRE”) (North, Graham and Rares JJ), and s 421 of the Act);

(d)    the appellant had not shown that the Tribunal had adopted an unalterable predisposition toward an outcome, nor that a fair-minded and informed person would reasonably apprehend the possibility of it having done so. The Minister submitted that nothing before the Court demonstrated prejudgment, hostility, failure to enquire into critical information, unalterable commitment to a conclusion, a closed mind, dishonesty, arbitrariness or capriciousness on the part of the Tribunal in the second hearing;

(e)    the appellant did not advance a claim of actual or apprehended bias in relation to the first Tribunal decision, and the jurisdictional error found by the Court in the first application did not relate to actual or apprehended bias, nor to the particular attitude which the Tribunal had taken towards the appellant’s claims and evidence; and

(f)    upon remittal the Tribunal approached the matter afresh, assessing new claims and evidence, noting that the findings in the second Tribunal decision were not entirely the same as in the first Tribunal decision. In particular the Minister pointed to the Tribunal’s acceptance of the appellant’s contention that it would not be reasonable for him to relocate to Karachi.

Consideration

Principles relevant to reasonable apprehension of bias

102    The principles of natural justice require that a person whose interests may be adversely affected by an administrative decision receive a fair hearing by use of an appropriate procedure in the circumstances: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 (“SZQHH”) at 232 [25] (Rares, Flick and Jagot JJ) citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 16 at 160 [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). The fairness of the process is part of the exercise of power, and integral to the legitimacy of the outcome.

103    The requirement for an administrative decision-maker to accord procedural fairness to a person who may be affected by a decision includes the notion that the decision will be made without the reasonable apprehension of bias in the decision-maker: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at 345 [7].

104    The test for apprehension of bias in an administrative decision-maker is uncontentious. In SZQHH Rares and Jagot JJ summarised it in the following terms at [37]:

An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425 at [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14]-[21] per Allsop J, with whom Moore and Tamberlin JJ agreed.

105    As Allsop CJ said in SZRUI (at [2]-[3]):

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

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

106    The authorities provide that to make out an allegation of a reasonable apprehension of bias on the part of the decision-maker the apprehension must be “firmly established”: Epeabaka at [90]; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 (“Re JRL”) at 352 [5] (Mason J). In Re JRL Mason J was addressing the position of judicial officers, but the observation is equally applicable to decisions by an administrative tribunal: SZRUI at [22] (Flick J). As Flick J said:

Such an allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100]; 76 ALD 424 at 441 per Weinberg J.

107    As Allsop J said in NADH at [20]-[21], for a complaint of apprehension of bias to be “meaningful” (at least in the absence of identification of some prejudice or interest in the tribunal):

…it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question.

108    The requisite apprehension must accommodate the specific decision-making environment, and take into account that specialist tribunals such as the Tribunal “bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”: Jia Legeng at [180] (Hayne J), cited in SZQHH at [40].

Application of the relevant principles

109    In her first decision, although Ms Muling accepted some important parts of the appellant’s evidence, she did not accept his evidence that two Islamic militants visited his former home in January 2010 asking about his whereabouts, describing it as “implausible” that the Taliban would still be pursuing him. She also did not accept his evidence that the militants put a gun to his brother’s head, that his brother informed the militants that the appellant was in Australia, or that they said the appellant would not be spared if he came back to Pakistan. Nor did the member accept the appellant’s evidence that he knew people who were threatened by Islamic militants in Bajaur Agency but were killed in Karachi.

110    The question is whether in these circumstances a fair-minded and informed lay observer might have apprehended that she might not bring an impartial mind to the determination of essentially the same claims and evidence in the second Tribunal hearing.

111    The Minister sought to downplay the importance of the Tribunal’s rejection of this evidence, describing it as “hearsay upon hearsay” and contending that the Tribunal did not, in terms, make a credibility finding about the appellant by disbelieving that the January 2010 visit by the Taliban occurred. I do not accept these submissions. The appellant asserted the truth of the January 2010 event and Ms Muling rejected this evidence as implausible. She did not suggest, for example, that the appellant might have been honestly mistaken.

112    In my view the Tribunal’s rejection of the appellant’s account regarding the January 2010 incident was significant to the rejection of the appellant’s claim. There were no other available witnesses and no documentary evidence as to the appellant’s claims about the January 2010 event. That is, the appellant’s evidence on these matters was the only evidence. On his account, the incident in January 2010 showed that the Taliban continued to be interested in him, and that incident was the most recent expression of their interest. Essentially, he claimed that the enquiry by the Taliban as to his whereabouts and the threats they made showed that they continued to pursue him more than 20 months after he had complied with their demands by leaving his teaching job in a girls’ school, growing a beard, ceasing to sing and ceasing to play cricket. If accepted by the Tribunal, this evidence would have supported his claim that the Taliban held a continued interest in him, and even if he relocated to a large city such as Karachi or Lahore he faced a real risk of harm. The Tribunal’s rejection unambiguously discredited the appellant’s evidence on those issues.

113    The hypothetical fair-minded and informed observer of the second Tribunal hearing must be taken to be acquainted with the material before Ms Muling for that hearing, and with the findings she made on the first occasion. In circumstances where Ms Muling had previously decided that the appellant was not to be believed in relation to matters of significance, it is difficult to avoid the possibility that upon remittal Ms Muling would be predisposed towards the same conclusion regarding the appellant’s truthfulness. The observer might legitimately wonder how Ms Muling could bring a mind open to persuasion to the remitted application when she had already reached a considered view that the appellant was not to be believed on important aspects of his claim.

114    The Minister’s submissions that no claim of apprehended or actual bias was advanced in the first application for judicial review, and that the first Tribunal decision was quashed for reasons unrelated to bias or apprehended bias, miss the point. It is essentially because Ms Muling reached an adverse view of the appellant’s truthfulness on significant aspects of his evidence in the first decision that a reasonable apprehension of bias might arise in respect to her hearing and deciding the application on remittal.

115    The learned primary judge sought to distinguish the decisions in Eshetu and Kathiresan essentially on the basis that, unlike the present case, in those cases the first tribunal decision was overturned because it was “unreasonable” or “fundamentally flawed” (at [54]). Of course, the fact that the terms of a member’s decision on the first occasion are unreasonable or seriously flawed might give rise to a reasonable apprehension that he or she might not bring an impartial mind to the determination of the matter on remittal. However, that does not preclude another basis for a reasonable apprehension of bias, such as that in the present case.

116    Further, in my respectful view the decision in Eshetu is not distinguishable on this basis. While the primary judge in that case concluded that the decision of the tribunal was so unreasonable that no reasonable tribunal could have arrived at it (see 302), that was not the basis for the Full Court’s decision that the matter should be remitted to a different member. Davies J (with whom Burchett J agreed) decided the appeal (at 313) on the basis that the Tribunal misunderstood the meaning and operation of the term “well-founded fear”. Notably, in remitting the matter for rehearing his Honour said (at 313-4):

Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind. However, that is so obvious a proposition, it need not be part of the formal order.

117    The primary judge was also wrong (at [54]), in my respectful view, to attempt to distinguish Amarjit Singh on the basis that it arose in a different statutory context and did not involve the remittal of a matter following judicial review. That case concerned apprehension of bias in the review of repeat applications by the same tribunal member and it is not qualitatively different to the present case. In that case the Court also had regard to the requirement in s 420 of the Act to provide a mechanism of review that is “fair, just, economical, informal and quick” and to act according to the “substantial justice” of the case. The present statutory context is not so dissimilar that the Court’s principled approach in Amarjit Singh is inapplicable.

118    I respectfully take the same view as Mansfield J, when his Honour said (at 9):

It is clear that a member of the Tribunal should not sit to hear a case if, in all the circumstances, the applicant might entertain a reasonable apprehension that that member might not bring an impartial and unprejudiced mind to the determination of the review. That is based upon the principle that justice should not only be done, but should manifestly be seen to be done.

(Citations omitted.)

Mansfield J cited the remarks of Davies J in Eshetu with approval and concluded that the applicant was entitled to a rehearing because the tribunal member who had made the earlier decision should not have heard the later application. His Honour said (at 10):

Because he had made the earlier decision, there were reasonable grounds to apprehend that he would not look critically at that decision, or treat the new information and the additional information which touched on the grounds for that earlier decision with the degree of objectivity which s 420 calls for.

119    As the learned authors Aronson and Groves said in Judicial Review of Administrative Action (5th ed, Lawbook Co, 2013) at [9.280]:

The High Court has accepted that courts empowered to order that a decision be remitted to a differently constituted decision-maker should not exercise that power automatically but rather where it is appropriate “in the interests of justice.” This protean test is usually satisfied when the first decision-maker has made a finding of credibility, indicated a preference for the evidence of one witness, failed to provide procedural fairness to a party or engaged in some form of conduct or finding that might lead the hypothetical observer to conclude that the original decision-maker might not approach the remitted matter with an open mind.

(Citations omitted.)

120    I consider it to be “firmly established” that a fair minded and informed observer of the second Tribunal hearing might have apprehended that Ms Muling might not bring an impartial mind to the determination of the appellant’s claims, and she should not have refused the application that she disqualify herself from hearing the remitted application. On this basis, the appeal must be upheld.

121    This does not involve a finding that Ms Muling did not bring a fair and impartial mind to the remitted application. As Allsop J said in NADH at [21]:

The enquiry is not directed to the personal thought processes of the decision-maker.  It is directed to his or her conduct “objectified” through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia at 564; Johnson v Johnson (2000) 201 CLR 488, 493.

122    The assessment involves consideration of whether the decision-maker treated the appellant in a way that gave rise to the appearance of unfairness. As Allsop CJ said in SZRUI at [5]:

The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance is….an inhering requirement of the exercise of state power.

In my view the appellant established an appearance of unfairness in Ms Muling proceeding to hear the application on remittal when she expressed a considered view in the first decision that the appellant was not to be believed on significant aspects of his evidence.

The relevance of the second Tribunal decision to the apprehended bias inquiry

123    Both the appellant and the Minister invited the Court to consider the terms of the second Tribunal decision in deciding the question of reasonable apprehension of bias, including by way of a comparison of paragraphs in the second Tribunal decision which are the same as paragraphs in the first decision.

124    The Minister submitted that the terms of the second Tribunal decision showed that the member approached the matter afresh and properly assessed new claims and evidence. He pointed to the fact that in the second decision Ms Muling changed her view about the reasonableness of the appellant relocating to Karachi, which the Minister argued showed that Ms Muling had a mind open to persuasion. The Minister accepted that the Court should exercise caution in considering the second Tribunal decision, but argued that the decision reveals no evidence of prejudgment, hostility, failure to enquire into critical information, unalterable commitment to a conclusion, a closed mind, dishonesty, arbitrariness or capriciousness on the part of the Tribunal member.

125    There is little merit in the Minister’s submission in this regard. In my view, in deciding the question of reasonable apprehension of bias little significance can be given to the terms of the second Tribunal decision.

126    I say this, first, because in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (“Michael Wilson”) the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) cautioned against having regard to the terms of the decision in deciding whether a reasonable apprehension of bias might earlier have arisen. The majority said (at [32]-[33]):

As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”

Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair‑minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.

(Emphasis added.)

127    The majority went on to say (at [67]):

…An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

(Emphasis added.)

128    The Minister sought to distinguish the decision in Michael Wilson on the grounds that it involved court proceedings, and that the allegation of apprehended bias was made in the context of a judge determining ex parte interlocutory hearings and then conducting the trial of a matter. In my view, these matters do not relevantly distinguish the case. The thrust of the Minister’s contention was that it is inappropriate to transpose the approach taken by the majority in Michael Wilson to the context of administrative decision-making. I do not accept this and I consider the reasoning in Michael Wilson to be equally applicable in the context of administrative decision-making.

129    I note that in SZSMD v Minister for Immigration and Border Protection [2015] FCA 202 Rares J implicitly accepted that the decision in Michael Wilson applied in such a context. In that case the appellant submitted that the Tribunal’s factual and credibility findings against her on the second occasion were relevant to the determination of her allegation of a reasonable apprehension of bias. His Honour noted (at [31]) the view of the primary judge that:

To the extent that the Court is being invited to examine the contents of the Decision Record, it is unhelpful to look to the reasons of a decision-maker to confirm an impression of bias because of necessity at the time that those reasons are given, the decision-maker has made [up] their mind. The Court’s attention was drawn to the High Court’s decision in Michael Wilson…”

130    His Honour saw no error in the primary judge’s approach, and said (at [44]):

The appellant’s argument seeks to look ex post facto at the way in which the Tribunal explained why her evidence did not persuade it or was not found by it to be believable on a number of points. At the time a decision maker articulates reasons for a decision, he or she will have made up his or her mind about the subject matter that requires resolution. Necessarily, at that point, the person will have formed a view and, in a case like the present, will be endeavouring to explain the findings of fact and reasoning process by which he or she came to hold that view. In that context, it must be expected that the view will have all of the appearance of being concluded.

131    I consider the learned primary judge erred (at [60]-[61]) in the significance her Honour attributed to the fact that, in the second Tribunal decision, Ms Muling considered later material and altered her view in relation to whether it was reasonable for the appellant to relocate to Karachi. The second decision reveals Ms Muling’s concluded view of the evidence and claims in the remitted application, as opposed to revealing matters anterior to those conclusions which might be said to give rise to a reasonable apprehension of bias. Those matters essentially go to whether Ms Muling actually prejudged the remitted application, rather than what a fair-minded observer might have reasonably apprehended prior to and during the second Tribunal hearing.

132    Second, even if I consider the terms of the second Tribunal decision, as the parties urged, it does not assist the Minister’s case.

133    On remittal the substance of the appellant’s claim was the same as on the first occasion, although by submissions, country information and a small amount of further evidence he sought to address the finding that it was reasonable for him to relocate to a large city, such as Karachi or Lahore. I accept that Ms Muling considered the appellant’s new submissions, country information and evidence going to the issue of relocation and that she altered her view that it would be reasonable for the appellant to relocate to Karachi, and instead proposed Lahore.

134    I accept that this shows the member’s preparedness to reach a different view on that matter, but it is an overreach for the Minister to contend that it demonstrates that she had a mind open to persuasion on the appellant’s credibility. In any case, as the High Court explained in Michael Wilson, it is not logically germane to the apprehended bias inquiry.

135    It is significant that some paragraphs of the second Tribunal decision were copied from paragraphs in the first decision. The appellant filed a table comparing paragraphs in the first Tribunal decision with paragraphs in the second Tribunal decision which it said were identical or substantially similar, and the Minister filed submissions containing a marked-up side-by-side comparison of the paragraphs. Both sides plainly considered their approach better advanced the case as to whether Ms Muling did, or did not, consider the issues afresh in the second Tribunal hearing.

136    The Minister contended, and I accept, that many of the findings in the second Tribunal decision are favourable to the appellant, the majority of the paragraphs in the Tribunal’s respective decisions are different, the second Tribunal decision is shorter, the findings in the second Tribunal decision in relation to the issue of relocation to Karachi are different, and the unfavourable findings in the second decision are findings which were open to it on the material before it. The differences between the two decision largely arise from the fact that in the second decision, the Tribunal considered the complementary protection ground, accepted that it would not be reasonable for the appellant to relocate to Karachi (while maintaining that it would be reasonable for him to relocate to Lahore), and set out and dealt with material provided by the appellant after the first decision.

137    The similarities between the decisions to which my attention was drawn include (but are not limited to):

(a)    paragraphs 20-27 of the first Tribunal decision, which set out the appellant’s background, claims and statements, and psychologist’s reports, are reproduced by paragraphs 22-28 of the second decision with only minor changes;

(b)    paragraph 82 of the first Tribunal decision, which stated the appellant is a Pakistani national for the purposes of assessing his claim, is identical to paragraph 38 of the second decision;

(c)    paragraph 83 of the first decision, in which the Tribunal accepted that the appellant was born and lived in Bajaur Agency, is identical to paragraph 39 of the second decision;

(d)    paragraph 85 of the first decision, in which the Tribunal found that the appellant gave generally consistent evidence regarding his experiences, that he may have come to the attention of the Taliban in his area, that the Taliban came to his home in April 2008 and ordered him to leave his job and grow a beard and that he “may” have been ordered to stop singing and engaging in sporting activities, but did not accept that the Taliban held any interest in him because he was well-educated. This was reproduced by paragraph 40 of the second Tribunal decision although with minor changes of expression (e.g. substituting “position” for “role”) and insertions and deletions of some words which did not alter its substance;

(e)    paragraph 99 of the first decision, in which the Tribunal did not accept that the appellant would be tracked or pursued by the Taliban outside of the Bajaur area because of any combination of the factors of being a Pashtun, singer, sportsman, and returnee from a Western country. This was reproduced in paragraph 66 of the second decision with some changes to reflect the Tribunal’s changed view in relation to relocation to Karachi, with some additional findings in relation to Lahore and in relation to some of the appellant’s evidence since the first hearing; and

(f)    paragraph 100 of the first decision, in which the Tribunal discussed the appellant’s medical evidence, and found that his major depressive disorder would not impact him adversely upon relocation to Karachi or Lahore to such a degree that it would be unreasonable for him to do so. Paragraph 67 of the second decision contains substantially the same reasoning, although it omitted Karachi from consideration, had some changed expressions and did not refer to the evidence of the appellant’s doctor in Pakistan.

138    In my view there is no material distinction between word-for-word copying, and just moving around words or changing words while leaving the substance intact: MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133 (“MZZZW”) at 162 [28] (Tracey, Murphy and Mortimer JJ). Having said this, I have no real concern about the copying of some of the paragraphs to which I have referred. For example, paragraphs 20-27 of the first Tribunal decision which set out the appellant’s background, claims and statements and psychologist’s reports were just summaries of or direct quotes from the appellant’s materials. Nor do I have any concern about the copying of paragraphs 82-83.

139    However, it is unnecessary to undertake a paragraph by paragraph analysis. Were it appropriate having regard to the decision in Michael Wilson or otherwise necessary to weigh the significant similarities in the decisions, I would have particular regard to paragraphs 86 and 87 of the first Tribunal decision. In those paragraphs Ms Muling accepted that the appellant stopped work and grew a beard after being visited by the Taliban in April 2008, and despite “serious doubts” accepted that he received a follow-up phone threat in August 2008 while living with his brother in Peshawar, but did not accept that two Islamic militants went to the appellant’s home in January 2010 and made threats against him.

140    Ms Muling replicated these findings in paragraphs 41 and 43 of the second Tribunal decision with only minor variations in expression and with the further comment that it was “implausible” that the January 2010 incident occurred when the appellant had not referred to it in a statement submitted since the first hearing. The findings in paragraphs 41 and 43 of the second decision were clearly copied from the first decision. This is confirmed by the fact that the second decision repeated a typographical error in the first decision (where it referred to the incident being in “June 2010” rather than “January 2010”).

141    As I have said, I consider the Tribunal’s rejection of the appellant’s evidence in this regard was significant to the rejection of his claim. If accepted by the Tribunal it would have assisted his claim that the Taliban had a continued interest in him, that the Taliban’s interest in him was not as low as the Tribunal suggested, and that even if he relocated to a large city such as Karachi or Lahore he faced a real risk of being killed by them.

142    It is also significant that in paragraphs 41 and 43 of the second Tribunal decision Ms Muling essentially copied paragraphs 86 and 87 of the first decision, in which she accepted the credibility of the appellant’s evidence in relation to other important aspects of his claim.

143    The copying of adverse and positive credibility findings from the first decision would tend to show that Ms Muling did not consider the issue of the appellant’s credibility afresh in the remitted application. In saying this I adopt the meaning of “afresh” in MZZZW at 171 [60], where the Full Court said:

…That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion “afresh” is simply a shorthand way of saying “with fresh eyes”, and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.

144    I accept that, in the second decision, Ms Muling gave consideration to the credibility of the appellant’s new evidence. As I have said, she did not accept the appellant’s evidence that:

(a)    he performed at weddings, finding that the appellant fabricated this aspect of his claims in an effort to “bolster his profile” (at 57);

(b)    he had sung on two or three occasions at welcome or farewell parties at university, that he was involved in organising the music program for such events, or that people had recorded his singing and that he recorded his songs on cassettes (at 58);

(c)    he had posted poetry on Facebook, finding that the appellant fabricated this evidence with the sole reason of strengthening his claims (at 61); or

(d)    if he resumed teaching in Lahore his name would be circulated by his students among 300 to 400 homes in a week, finding that evidence “implausible”.

However, while those findings were open, in the circumstances it is impossible to know whether they were the result of fresh consideration by a mind open to persuasion, or just reflective of Ms Muling’s previous findings regarding the appellant’s credibility. They do not show that Ms Muling considered the question of the appellant’s credibility and claims afresh.

The other grounds of appeal

145    It is unnecessary to decide the grounds of appeal alleging actual bias and alleging that the Tribunal misconstrued the principles relating to relocation.

CONCLUSION

146    For the reasons set out the appeal is allowed, and the matter must be remitted for rehearing by the Tribunal.

147    The appellant sought an order remitting the matter to the Tribunal differently constituted for further consideration. Just as the remitted application should have been heard by a different Tribunal member on the occasion of the second Tribunal hearing, now on the third occasion it must be so. In the second Tribunal decision Ms Muling repeated and amplified her earlier adverse credibility findings and if justice is to be seen to be done on remittal the application must be determined by a differently constituted Tribunal.

Associate:

Dated:    22 April 2016