Federal Court of Australia

AFO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1722

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs fixed in the amount of $3,750.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant came to Australia from Pakistan in 2011 on a student visa. He returned to Pakistan for a month in 2012 and for two months in 2013. In August 2014, the appellant applied for a protection visa. He claimed to fear harm from Sunni extremists as a member of a prominent Shia family. A woman who was said to be the appellant's wife also sought protection on the same application. She relied upon the claims of the appellant to support her application.

2    The protection visa application was refused. The visa refusal decision was affirmed by the Administrative Appeals Tribunal.

3    The appellant alone sought judicial review of the Tribunal's decision in the Federal Circuit Court on the basis of alleged jurisdictional error. The application was dismissed.

4    The appellant now brings an appeal in this Court in which he raises four grounds of appeal. The appeal was originally listed for hearing on 13 November 2020, but was adjourned on the basis of an informal request by the appellant on the grounds of his ill-health. At that time he produced a certificate for absence from work for 13 November 2020.

5    On the day before the adjourned hearing, the Court received the following email from the appellant:

Good afternoon, due to my continuous illness and medical condition I am unable to attend hearing tomorrow.please consider my final written submission which I already submitted and considering my final submission please finalised your decision. I don't wanna add anything else for arguments.

6    No further medical evidence was submitted.

7    The final hearing proceeded in the absence of the appellant, but on the basis that the appellant's written submissions were received. The Minister did not seek to advance oral submissions in addition to the written submissions for the Minister.

8    For the following reasons, the appeal should be dismissed with costs.

The Tribunal's reasoning

9    The Tribunal accepted that the appellant was a citizen of Pakistan. After considering the evidence of the appellant and explaining its deficiencies in the view of the Tribunal, the Tribunal then found the overall evidence of the appellant in relation to the harm he experienced to be inconsistent and vague (para 53). The Tribunal did not accept the appellant's claims about his profile and found he exaggerated his role for the purposes of his protection application (para 55). The Tribunal found that the appellant's delay in lodging his application undermined his claim to fear harm on his return to Pakistan (para 57). These matters, considered cumulatively led the Tribunal to conclude that parts of the appellant's evidence had been embroidered for the purposes of enhancing his application (para 58). Nevertheless, the Tribunal reached the following conclusions concerning the appellant (then the applicant in the Tribunal) (paras 59-60):

However, after considering both the written and oral evidence available to it, the Tribunal accepts that the applicant and his family are Shia Muslims and that the applicant was involved with the ISO. After considering the available evidence and for the reasons as discussed, the Tribunal does not accept that the applicant had a profile over and above other members of the Shia community and ISO in his home area.

The applicant fears harm from Sunni extremist groups such as the Taliban and LeJ because of his [sic] and his family are Shias.

10    The reference to ISO is to the Imamia Students Organisation, a Shiite Muslim student's organisation. The reference to LeJ is to Lashkar-e-Jhangvi a militant anti-Shiite terrorist organisation operating in Pakistan.

11    The Tribunal accepted that there have been threats against the appellant and his family and the appellant and his brother have been assaulted in the past because of their religion (para 63). The Tribunal also accepted that there were credible reports of tensions in the area of the appellant's home village in Pakistan and therefore there was a small but real chance that the appellant, a male Shiite Muslim, will face serious harm that would be systematic and discriminatory if he was to return to his home area (para 64). It found that the level of protection available to the appellant from the Pakistan authorities in his home area did not meet the level of protection that citizens are entitled to expect (para 68).

12    The Tribunal then went on to consider whether there is a real chance that the appellant will suffer serious harm if he relocates to another area of Pakistan and whether it is reasonable for him to relocate to seek refuge in another part of Pakistan (paras 69-71).

13    After considering the evidence and its earlier findings, the Tribunal concluded as follows (para 79):

The Tribunal accepts that the applicant faces a real chance of serious harm arising from his background and profile a [sic] Shia Muslim in the his [sic] home region in Hafizabad. However, the Tribunal does not accept that the real chance exists across Pakistan generally. Based on the evidence before it, the Tribunal does not accept that the applicant or his family has such distinction in his home area as a Shia Muslim or member of the ISO that the Taliban would seek to harm him by pursing [sic] him in other locations within Pakistan. Nor does the Tribunal find that there is a real chance the Taliban would pursue the applicant outside of his general home area, for reasons of his activities as a member of the ISO or the Shia community. In this respect the Tribunal assessed the applicant's activities to be largely confined to the local level, and not extending beyond Hafizabad, and not at a high profile level.

14    The Tribunal then went on to consider available country information and concluded that the appellant would be able to practise his Shia faith, be observant and be as involved in the Shia religious community as he wished to be, without there being any real chance or real risk of him being harmed on this basis if he was to relocate to one of the areas identified by the Tribunal (para 86). It found that many Shias have migrated and settled in Islamabad and Lahore where they are relatively safe (para 98).

15    As to possible difficulties with relocation for the appellant, the Tribunal reasoned as follows (concerning the appellant and the person applying for a protection visa as his wife) (paras 101-103):

It has been noted that DFAT states that internal relocation can be hampered by a lack of financial resources. However, the applicant is an educated man with English and Urdu. He has found work in Australia. The Tribunal notes that DFAT specifically indicates that people with foreign language skills are more likely to find employment on relocating. The Tribunal also notes the applicant's evidence that his family provide him with considerable financial support and have done during his time in Australia and the Tribunal does not accept that this financial support would be withdrawn at any time.

Having regard to the applicant's particular circumstances, it finds that he would be able to find work of some kind in Pakistan if he were to relocate to a large urban centre. It finds the applicant has prior work experience in Australia; he has received a reasonable education at higher tertiary level and is familiar with relevant languages such as Urdu and English. It finds he has experience in Australia in finding employment and accommodation. The Tribunal does not accept the country information before it suggests the applicant will be denied employment of some kind, or that he will not be able to secure some form of work in a reasonable period or that he will not be able to find some form of accommodation within a reasonable period. The Tribunal therefore does not accept that it is unreasonable for the applicant to relocate because of a lack of financial resources. The Tribunal also considered that the applicants may not have the benefit of familial support in their relocated area and this may make their lives more difficult, but notes that information from sources including DFAT indicates that in the identified places there are Shia populations, and the Tribunal is satisfied the applicant has skills and attributes to gain employment. The Tribunal notes that they have lived in Australia for a considerable period without familial support. The Tribunal therefore considers that it would not be unreasonable for the applicants to relocate away from familial support in all of their circumstances.

For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the applicants' circumstances, for them to relocate to Lahore, or a town or city in Sindh outside Karachi where, as the Tribunal has found there is, objectively, no appreciable risk of the occurrence of the persecution claimed. The Tribunal has considered the totality of the applicant's circumstances. However, even taking into account the cumulative effect of these circumstances, the Tribunal does not accept that there is a real chance that the applicants will be persecuted for one or more of the Convention reasons if they return to Pakistan.

16    The Tribunal then considered whether the appellant met what is known as the complementary protection criterion for a protection visa and found that there is not a real risk that he will suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to the receiving country of Pakistan (for reasons other than those already identified and considered not to arise if the appellant took what the Tribunal considered to be the reasonable step of relocating to a place other than his home area) (paras 105-108).

The decision of the primary judge

17    The appellant appeared on his own behalf before the primary judge and raised five grounds of review.

18    The reasons of the primary judge recited findings made by the Tribunal and then described the course of the proceedings before the primary judge in the following terms (at [32]-[34]):

At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

From the bar table, the applicant addressed the Minister's submissions in relation to the applicant's grounds and took issue with the substance of the submissions as to why the Minister submitted there was no relevant error. The submission reflected a disagreement with the adverse findings of the Tribunal which were open for the reasons given by the Tribunal, as summarised above. The submissions otherwise identified impermissible merits review.

Nothing said by the applicant from the bar table identified any jurisdictional error.

19    The primary judge then set out the grounds of review. Grounds 3 and 4 were expressed in the following terms:

AAT Member was biased against applicant, as shown by her demeanour at hearing and did not afford procedural fairness.

She did not consider our … issues related to relocation. Tribunal did make one mention of the issue of relocation and it did not clearly bring it to my attention in a way that would have allowed me to understand the significance and address it.

20    As to these grounds, the primary judge reasoned as follows (noting that the reasoning as to ground 3 appears under the heading 'Ground 2' and the reasoning as to ground 4 under the heading 'Ground 3').

Ground 2

In relation to ground 2, the applicant submitted that the Tribunal was biased and made allegations of bias flowing from what occurred during the hearing and what was stated in the transcript, as well as alleging that the Tribunal member's demeanour supported an allegation of bias. The applicant also submitted that, at a particular point in the transcript, the Tribunal member was shouting at the applicant. There is no evidence to support that the Tribunal member was shouting at the applicant.

Bias is a serious allegation and must be clearly proved. The applicant's submission that the Tribunal was biased by reference to the transcript are without substance. The applicant's reference to the transcript is entirely consistent with the applicant being given a real and meaningful opportunity to engage with the issues of concern by the Tribunal.

The applicant disagreed with the questions not being framed in a more polite manner with the word 'please'. That is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits.

The applicant also referred to his claims in answer to the questions in respect of his ability to relocate and his fears. The applicant submitted that, by rejecting the same, the Tribunal was biased. It is apparent that the Tribunal accepted that the applicant faced a real risk of serious harm or significant harm in his own village. It was for that reason that the Tribunal member turned, as the Tribunal was required, to the issue of relocation.

The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Having read the transcript, the Court is satisfied that the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. No case of bias is made out.

To the extent that the applicant alleges that he was not afforded procedural fairness, it is apparent that the Tribunal raised with the applicant in the course of the hearing the issues of concern for the Tribunal and provided the applicant an opportunity to respond to the same. The applicant submitted that there was no question asked of him, in respect of relocation, about his financial capacity to address relocation and, in that regard, also referred to the evidence he had given about his sustenance by working on a dairy.

The Tribunal clearly gave the applicant an opportunity to identify his concerns in respect of relocation. The applicant did not suggest financial capacity as being a particular matter of concern in his answers to the Tribunal. Including the qualification that the applicant has obtained, it is apparent that the Tribunal took into account the applicant's personal circumstances in considering whether or not relocation was practicable and reasonable for the applicant.

It was not necessary for the Tribunal to expressly ask the applicant a question about his financial means simply because he had sustained himself by working on a dairy. The applicant's qualification also speaks for itself. The Tribunal's reasons were logical and rational in relation to the adverse finding in respect of the reasonableness and practicality of relocation. There was no denial of procedural fairness.

No jurisdictional error is made out by ground 2.

Ground 3

In relation to ground 3, this appears to be a reference to asserting that the Tribunal did not make mention of the issue of relocation. That proposition on the face of the transcript is false. It is clear that relocation was an issue raised by the Tribunal with the applicant on the face of the Tribunal hearing. Further, it is clear on the face of the transcript that the applicant understood the questions he was being asked and engaged with the same.

There is no substance in the assertion that the applicant makes in ground 3 that he did not understand the significance of the questions. On the evidence before the Court, the Court is satisfied the applicant had a real and meaningful hearing before the Tribunal and was able to understand and respond to the Tribunal.

No jurisdictional error is made out by ground 3.

21    It can be seen that an allegation of bias was addressed briefly and without particularity in the second paragraph of the reasons under the heading 'Ground 2'. It said simply that the claims were 'without substance'. The primary judge then dealt with two affidavits relied upon by the appellant.

22    His Honour characterised the content of the first affidavit dated 24 May 2017 as, in substance, inviting merits review: at [54]. That description may be accurate as to parts of the affidavit. However, relevantly for present purposes, the affidavit included the following (para 17):

The same I have provided to AAT. Ms. Amanda Goodier Member AAT didn't consider any of the explanations and supported the decision of case officer … being biased. She was very rude during the hearing of my appeal. Besides hearing and my justifications, Administrative Appeals Tribunal (AAT) has copy pasted the main reasons of refusal of decision of Delegate of the Minister for immigrations and Border Protections and suggested the same illogical solution to relocate from home city in Pakistan for safe living. Such statement is easy to deliver but impossible to implement for a person like me. My interview lasted for one hour forty five minutes. Ms. Amanda Goodier has not shown any interest in my case and explanations. She has remained rude with me throughout the interview. For half an hour she was just asking me about my degrees and occupation and other 30 minute she was typing. She didn't ask me much about my case questions but was telling me general information about my country Pakistan. When I was telling her about my circumstances she didn't even have eye contact with me or cross questioning. Many a times my wife also wanted to place her views and opinions but she didn't let her talk at all and pointed her to stop talking. Throughout the interview I was trying to justify my grounds of immigration and showing her some proofs but she was ignoring me and kept busy with typing on her laptop. At the end when I was exhausted and disappointed by her attitude I ended up with crying but still her behaviour was as harsh as it was. Finally she has shown her aggression by refusing my case on the same illogical reasons as of the case officer …

23    With due respect to the primary judge, that paragraph did not raise a claim of merits review and could not be so characterised. Rather, it raised a complaint of apprehended bias or of a fundamental failure to undertake the required statutory task.

24    His Honour then referred to a further affidavit dated 1 October 2019 (at [55]). As to that affidavit, his Honour first addressed an issue raised in the affidavit about the significance of the fact that the appellant did not attend an interview before the case officer. The primary judge then reasoned as follows concerning other matters in the affidavit (at [56]-[58]):

The applicant's complaint that the Tribunal did not take the applicant's claims of fear of harm seriously is inconsistent with the face of the Tribunal's reasons and inconsistent with a finding favourable to the applicant in respect of a real chance or a real risk of serious or significant harm in his own village. The Tribunal clearly had an active and intellectual engagement with the applicant's claims in evidence.

It is also apparent that the Tribunal considered the applicant's claimed fears, alleged threats and alleged harm both to the applicant and his father and his brother. The assertion that the Tribunal did not consider the applicant's documents supporting his claims is inconsistent with the face of the Tribunal's reasons.

As already identified, it was not necessary for the Tribunal to refer to every piece of evidence. To the extent that the Tribunal identified a particular document being given limited weight, taking into account the prevalence of fraud, the Tribunal's reasons in that regard were open to it. Further, it was a matter for the Tribunal to determine what weight to give to the evidence before it.

25    The affidavit of 1 October 2019 was not long. It took the form of nine paragraphs each with a proposition of alleged error followed by references to particular pages of the annexed transcript of proceedings in the Tribunal to support the matter raised. It appears that his Honour referred to some of these matters when he said under 'Ground 2' that the appellant's reference to the transcript 'is entirely consistent with the applicant being given a real and meaningful opportunity to engage with the issues of concern by the Tribunal'. The matters stated in the affidavit included the following (paras 3 and 8):

When I explained member about me and my father situation regarding the religious threats from opponents that police kept him in prison most of time due to threats from our opponents then AAT member suggests me that I should get police protection and spend my life in prison, so member statements indicate that we should get police protection in Pakistan and spend our whole life in prison for our security. This clearly indicates member's rudeness and biasness towards my situation please see hearing transcript: [references omitted]

…

Dear honourable judge, you can clearly see discrimination of AAT member statement who was telling me that veterinarian doctor is not professional, only medical practitioners are considered professional and educated person please see hearing transcript: [references omitted]

26    His Honour concluded that the application did not identify any jurisdictional error: at [60].

The grounds of appeal

27    The grounds of appeal were prepared by the appellant acting on his own behalf and are expressed in the following terms:

1    Hon Judge did not exercise procedural fairness or natural justice as did not listen to my evidence

2    The Hon Judge failed to consider all the relevant arguments regarding my financial situation if I would relocate to other area of Pakistan as suggested by the Tribunal

3    The Hon Judge did not listen to my legal arguments regarding threats and harms from my opponents

4    The Hon judge has dismissed the case without considering legal and factual errors contained in the decision of AAT and gave pre-decided decision on the spot

General matters

28    The four appeal grounds have a common theme. They allege that the primary judge did not listen to and consider matters raised by the appellant and had already decided the case.

29    In this Court there is no evidence of the course of the proceedings before the primary judge. The transcript is not in evidence. In written submissions, the appellant describes the hearing as taking about 90 minutes with about 60 minutes of discussion and 30 minutes to deliver the decision. The appellant also makes assertions in his written submissions as to what occurred at the hearing in terms of arguments that were advanced but were alleged to have not been considered by the primary judge.

30    As a matter of procedure these matters must be proved formally in the appeal if disputed. At the hearing I raised with counsel for the Minister the approach to adopt in circumstances where the appellant had not been made aware of this procedural requirement. I indicated that the matter might need to be adjourned to make the appellant aware of this requirement. In doing so I had in mind the duty to ensure that litigants who appear in person have sufficient information about the practice and procedure of the court to ensure a fair hearing: Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[311], quoted with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]; and Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [103]. See also SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [36]-[38]. In the alternative, I suggested that the matter might proceed on the basis that an assumption is made in favour of the appellant that his assertions by way of written submissions as to what occurred before the primary judge were correct insofar as they concerned matters alleged to have been raised and the appeal be dealt with on the basis of that assumption. Counsel for the Minister did not oppose that course, but made no formal concession that the factual matters were correct. The Minister sought an opportunity to adduce evidence to the contrary should that be appropriate.

The nature of the appeal

31    The appeal to this Court is by way of rehearing: Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [68]-[71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). In order to succeed, the appellant must demonstrate some legal, factual or discretionary error as to the manner in which the primary judge dealt with his review application. If error is demonstrated then the Court may substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ).

32    If error is demonstrated, but it is not shown to have affected the orders made, then the appropriate order is for the appeal to be dismissed: James Cook University v Ridd [2020] FCAFC 123 at [192] (Rangiah J). In DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64, a case like the present, it was held (at [63] (Rangiah J, Reeves and Bromwich JJ agreeing) that:

Unless the appellants can demonstrate, not merely error by the primary judge, but also jurisdictional error on the part of the Tribunal, there may be no utility in setting aside the judgment under appeal ... Since it is the judgment of the Court to which an appeal is directed, an error in the reasons for judgment which does not materially affect the correctness of the judgment itself will not usually justify intervention by an appeal court.

33    In particular, where the Court is persuaded that there would be no utility to be served in requiring a matter to be considered or reasons to be given by remitting the matter because the result would not be affected, then the Court may decline to remit the matter for consideration: see, for example, Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [32] (Perram, Farrell and Perry JJ).

34    However, these principles assume that the judicial task has been discharged by the primary judge and there is a decision in respect of which a right of appeal may be properly exercised. The judicial task requires proper consideration to be given to the case presented by each party: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [47]-[48] (Kenny, Kerr and Perry JJ). If there are intelligible grounds of review that condescend to particulars to explain the basis for them then they must be considered and reasons must be given as an incident of the judicial process: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [24] (Perram, Perry and O'Callaghan JJ).

35    A different approach to the orders to be made on appeal may be warranted where there has been shown to be a substantial failure by the primary judge to undertake the judicial task. The reasons why that may be so were eloquently explained by Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14]:

One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court's original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court's appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court's entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

36    In BZD17 those views were cited with approval by Perram, Perry and O'Callaghan JJ at [30] where their Honours said:

We agree that the considerations identified in AXL16 and AAM15 tell strongly against this Court ordinarily determining substantive grounds of judicial review which the FCC has failed to determine. Nonetheless in the circumstances of this case, we consider that there are a number of compelling factors against remitting the matter to the FCC. First, both parties submitted at the hearing that they wish the substantive issues on the appeal to be determined by this Court. Secondly, this is a case where, for the reasons given below, the errors are so apparent from the Tribunal's reasons that there would be no apparent utility in remitting the matter to the FCC.

37    Therefore, in a case where a significant aspect of the case advanced below has not been considered by the primary judge, the appropriate relief may be to remit the matter rather than seek to adjudicate the issue for the first time on appeal.

38    The fact that reasons are delivered ex tempore does not excuse the Court from undertaking the judicial task of considering the nature of the case advanced: COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; (2018) 259 FCR 1 at [56] (Griffiths J); and AXL16 v Minister for Border Protection [2018] FCA 208 at [21] (Perram J). However, more general expressions are appropriate in reasons where an applicant does not advance specific submissions: BDQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 492 at [20] (Mortimer J). And points of little or no merit may warrant no significant treatment. However, that is because they require very little in order to dispose of them. Precisely what is required by way of reasons will depend upon the nature of the case advanced: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464 at [163]-[193] (Murphy, Mortimer and O'Callaghan JJ).

Ground 1: Alleged failure by primary judge to listen

39    The appellant's written submissions explain ground 1 as being a complaint that the primary judge 'did not exercise procedural fairness [or] natural justice as he did not listen to my evidences'.

40    The appellant's complaint is that he made points in support of a claim before the primary judge that the Tribunal member was biased by referring to what he characterised as the member's 'harsh attitude and rude painful questions during the hearing'. Importantly, the appellant says that he made those points by providing the hearing transcript to the primary judge. This submission is supported by the terms of his affidavit of 1 October 2019.

41    The appellant says that the primary judge did not consider the matters raised by reference to the transcript. The written submissions then recount the matters relied upon as submissions that were not taken into account by the primary judge. They relate to two passages of transcript. The first concerns whether the appellant's father was imprisoned for his own protection. The second concerns how the appellant has been practising his religion in Australia. They are passages to which reference was made in the affidavits of the appellant before the primary judge.

42    The appellant says in his submissions in support of the appeal that the audio of the hearing will show the shouting. However, there is no suggestion that the audio was before the primary judge.

43    The Minister seeks to meet this appeal ground by the following submissions:

Although ground one refers to procedural fairness, the appellant's complaint, as set out in his written submissions suggests that the primary judge erred in failing to find that the Tribunal was biased in circumstances where he suggests that the Tribunal member had a 'harsh attitude', 'angry face' and 'shouting tone' and asked 'rude painful questions during the hearing'.

The primary judge was correct to find that no jurisdictional error was established. As stated by the primary judge, bias is a serious allegation which must be firmly and distinctly made and clearly proven. There is no evidence was [sic] filed to establish a claim that the Tribunal had shouted, nothing recorded in the parts of the transcript referred to by the appellant is indicative of any rudeness on behalf of the Tribunal and, in any event, the Tribunal was entitled to engage in a 'robust and forthright testing' of the appellant's claims and evidence.

(footnotes omitted)

44    Counsel for the Minister made no reference to the content of the two affidavits. Rather, the submission for the Minister addressed the appeal ground on the basis that the claims made do not demonstrate jurisdictional error by the Tribunal. By that approach, the Minister implicitly accepted that a claim of apprehended bias of the kind articulated on appeal was indeed presented before the primary judge but was not considered. This approach properly reflects the fact that the primary judge failed to consider the ground of review that was presented.

45    In substance, the position of the Minister was to the effect that even though complaints of apprehended bias were raised before the primary judge and were not considered below, there was no jurisdictional error by the Tribunal on the basis of apprehended bias. This amounts to an implied concession of error, but a claim that relief should be refused on the basis of a lack of utility for the reason that the matters raised, if considered, do not give rise to an apprehension of bias.

46    The submission invites this Court to undertake the deliberative task that was not undertaken by the primary judge. It is a task that requires an evaluation, for the first time, of the evidence relied upon by the appellant. However, that evidence as relied upon on appeal is of narrow compass and requires a consideration of two passages of transcript.

47    The approach of the Minister to ground 1 is understandable. The reasons of the primary judge deal in very general terms with submissions which involved allegations of bias relying on what was stated in the transcript of the hearing before the Tribunal member as well as allegations based on demeanour: at [38]. A claim that the member was shouting at the appellant was correctly rejected by the primary judge on the basis that there is no evidence to support it. The audio for the Tribunal hearing was not in evidence and an inference that the Tribunal member was shouting could not be drawn from the written transcript.

48    The reasons of the primary judge deal with an allegation about the consideration of the claim of relocation: at [41]. There is a finding expressed in general terms to the effect that having read the transcript the primary judge is satisfied that the Tribunal conducted the review with an open mind: at [42]. On the basis of that reasoning the claim of bias is rejected. What is plain from the reasons is that the primary judge did not deal with the particular claims that were put based on the affidavit materials. The general statements in the reasons were not sufficient to address those matters so as to make apparent to the appellant why those matters did not support a claim of apprehended bias.

49    In order for a claim of apprehended bias on the part of a decision-maker to succeed, the apprehension must be firmly established: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; and Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [69]. This is a requirement that the appellant's submissions expressly acknowledge.

50    The test is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the judge might not bring a fair, impartial and independent mind to the determination of the matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35].

51    Further, in the case of a decision made by the Tribunal due account must be taken of the fact that part of the process before the Tribunal involves the Tribunal member testing the account given by the applicant. As was said by Allsop J (as the Chief Justice then was) in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [19] (Moore and Tamberlin JJ agreeing):

The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

52    The nature of the allegation now made on appeal by the appellant goes beyond what is demonstrated by the evidence before the primary judge. It is to the effect that on two occasions the Tribunal member asked questions 'with angry face'. On the first occasion it is said that the nature of the question inferred that the appellant should seek police protection and was asked when the appellant was crying, which showed rudeness and bias. On the second occasion a particular course of questions was said to be asked with a very angry face and shouting tone. The questions sought an answer from the appellant as to how he practised his religion in Perth.

53    In my view, the transcript passages relied upon indicate no more than the Tribunal undertaking its task of testing the account given by the appellant. They are not questions and exchanges of a kind that would, of themselves, give rise to a reasonable apprehension in the mind of a fair-minded appropriately informed lay observer that the Tribunal member might not bring an impartial mind to the making of the decision. That is particularly so for an observer informed of the nature of the role of the Tribunal to test the evidence.

54    As to the additional statements to the effect that the Tribunal member had an angry face when questioning the appellant and was shouting, they are matters that were not included in the affidavit evidence before the primary judge. Rather, the affidavits raise general complaints about rudeness and a lack of eye contact with the appellant by the Tribunal member. There was no evidence before the primary judge to the effect that the Tribunal member was angry. To the extent that submissions to that effect were advanced they were appropriately to be disregarded given to the terms in which the affidavits of the appellant were expressed.

55    For those reasons, I accept that there would be no utility in remitting the matter to the primary judge to deal with the matters raised by ground 1.

Ground 2: Alleged failure by primary judge to consider arguments as to financial situation if required to relocate within Pakistan

56    This appeal ground seeks to challenge the finding by the primary judge (quoted above) to the effect that the appellant was given an opportunity to identify concerns in relation to relocation.

57    As to this aspect, the Minister submits that the Tribunal specifically put to the appellant questions about his previous employment in Pakistan, asked him why he could not relocate and specifically put to him that as he could speak English and Punjabi and was skilled and had completed qualifications in Australia, being reasons why it would not be difficult for him to relocate elsewhere in Pakistan to escape harm. I accept that submission as reflecting matters put to the appellant.

58    That is a sufficient answer to the ground as expressed. However, the written submissions of the appellant go on to claim that the Tribunal compared Australian circumstances with Pakistani circumstances in a manner that was to be criticised and, in effect, that was an illogical way of reasoning.

59    On the assumption that a claim of that kind was articulated before the primary judge as an error made by the Tribunal, it is a claim that does not fairly characterise the reasoning of the Tribunal.

60    The nature of the submission advanced before this Court to support ground 2 is to the effect that Australian circumstances could not be compared to Pakistani circumstances such that the ability to find work in Australia would not mean that there may be an ability to find work in Pakistan. However, the Tribunal did not reason in the manner suggested by the form of complaint raised by the submission. Rather, amongst other matters, it relied on the fact that the appellant had work skills that would assist him in Pakistan. It did so in a context where it referred to evidence to the effect that those with English speaking skills are more likely to find work in Pakistan. The Tribunal referred also to the appellant's Urdu speaking skills and his reasonable education at tertiary level. It did not reason that because the appellant had been able to find work in Australia he would be able to find work in Pakistan. It considered the relevance of his skills as a whole in evaluating whether the appellant would face real difficulty in finding work in Pakistan.

61    Ground 2 has not been established.

Ground 3: Alleged failure by the primary judge to listen to arguments about threats and harms from opponents

62    Ground 3 is explained by the appellant as a complaint that the primary judge did not listen to arguments advanced regarding threats and harms. The submissions are a complaint about the fact-finding by the Tribunal. They rise no higher than a complaint that the Tribunal should have reached a different decision on the facts. A submission of that kind plainly fails to articulate jurisdictional error and does not require detailed reasoning in order to explain why it is not accepted.

63    As to this aspect of the review grounds, the primary judge said simply (at [50]):

In relation to ground 4, the applicant submits that the Tribunal did not consider the risks that the applicant would face within the rest of Pakistan. It is clear that the Tribunal considered those risks in relation to the applicant and the applicant's circumstances. The Tribunal made adverse findings which were open to the Tribunal for the reasons given by the Tribunal.

64    This general statement indicates that the matters raised were considered by the primary judge.

65    Jurisdictional error is 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it': Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24] (Kiefel CJ, Gageler and Keane JJ). The statutory power entrusted to the Tribunal imposed a duty to undertake a substantive review, to engage with matters raised and determine the facts. In undertaking that task, the Tribunal had statutory authority to make factual findings. It is not for the Court on an application to review for alleged jurisdictional error to disregard that conferral of administrative authority and undertake the fact-finding task for itself.

66    There was no hint in the submission of a complaint that raised any of the kinds of concerns articulated by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3].

67    Given its evident character, it was sufficient to deal with a submission of the kind alleged to have been advanced by the appellant on the basis that it was a challenge to the merits which was a matter within the jurisdiction of the Tribunal.

68    Therefore, ground 3 has not been made out.

Ground 4: Alleged pre-determination by primary judge

69    Ground 4 is described as a complaint that the primary judge dismissed the application without considering legal and factual errors 'and gave pre-decided decision on the spot'. Framed in that way the complaint has two aspects. First an alleged failure to consider what are described as 'legal and factual errors' in the Tribunal's decision. Second, a contention that the decision was not the result of a process in which due attention was given to the submissions made by the appellant. The latter aspect raises no complaint about the adequacy of the reasons given or error in their content.

70    As to the first aspect, the submission seeks to question the merits of the Tribunal's decision by reference to matters raised by the earlier grounds. For reasons already given, those grounds should not be upheld.

71    As to the second aspect, there are circumstances in which a lack of attention by a judge to the course of a hearing might provide a basis for an appeal. As French CJ observed in Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 (a criminal appeal in which the judge was observed to be noticeably and repeatedly asleep or inattentive) at [71]-[72]:

There are elements of the judicial process which can be said, at least in a metaphorical way, to play a part in maintaining public confidence in the courts irrespective of their relationship to the actual outcome of the process. The appearance of impartiality is one such. In North Australian Aboriginal Legal Aid Service Inc v Bradley the joint judgment quoted with approval the observation by Gaudron J in Ebner v Official Trustee in Bankruptcy:

'Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system.'

The somewhat elusive criterion of 'public confidence' is in some cases, such as the appearance of bias, subsumed in what a fair and reasonable observer would think. The courts nevertheless depend in a real sense upon public confidence in the judicial system to maintain their authority. The maintenance of that authority depends, inter alia, upon that element of the judicial process which requires that parties before the court be given and be seen to be given a fair hearing. It is necessary to a fair hearing that the court be attentive to the evidence presented by the parties and to the submissions which they make. The appearance of unfairness in a trial can constitute a 'miscarriage of justice' within the ordinary meaning of that term.

The appearance of a court not attending to the evidence and arguments of the parties and control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process is not being followed. That is not to say that every minor distraction, inattention, sign of fatigue or even momentary sleepiness constitutes a failure of the judicial function. The courts are human institutions operated by human beings and there must be a margin of appreciation for human limitations. Otherwise the judicial system would be rendered unworkable by the imposition of unachievable standards. Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case.

72    However, the factual assertions by the appellant fall well short of a basis for any such concern. On the appellant's own account there were 60 minutes of hearing. It is to be expected that the primary judge would have considered the materials in advance and indeed may have prepared draft reasons. Steps of that kind are usual and appropriate in the interests of the efficient disposition of a substantial workload in a busy court and do not manifest pre-judgment. There is no contention that the primary judge was inattentive or not engaged in the 60 minutes of hearing. The nature of a review application of the kind advanced in the present case is that it did not require the evaluation of any oral evidence. The issues are exposed by the grounds and a consideration of the reasons of the Tribunal together with any affidavit material relied upon. The primary judge dealt with the appellant's affidavit material in his reasons.

73    It is entirely to be expected that a judge of the Federal Circuit Court, having considered the relevant materials in advance and then afforded the parties a hearing would deliver ex tempore reasons provided no issue arose in the course of the oral hearing that was of a character that required further deliberation. Judges of the Federal Circuit Court hear many applications that raise issues of a similar kind to those raised by the appellant. They do so on a regular basis and may be expected to display familiarity with the issues. The delivery of ex tempore reasons far from being consistent with pre-judgment will, in many cases, be appropriate and consistent with due deliberation.

74    The nature of the issues in the present case were of considerable importance to the appellant. However, that did not mean that they were of a kind that it was not appropriate for them to be addressed by the delivery of ex tempore reasons.

75    As was explained by Flick J in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; (2016) 241 FCR 450 at [16], ex tempore reasons should not be given in cases where there is no urgency requiring immediate delivery of reasons and there is a prospect that reasons given immediately may not adequately address the issues. Those observations were approved in Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [28] (Rares, Rangiah and Charlesworth JJ). For reasons I have given I am not persuaded that the issues in the present case could not be adequately addressed by ex tempore reasons.

76    The appellant has not shown that there was not due deliberation by the primary judge in giving a decision 'on the spot'.

77    Ground 4 should not be upheld.

Conclusion and costs

78    For the above reasons the appeal should be dismissed with costs. The Minister sought an order that costs should be fixed in the amount of $4,500. Having regard to the lack of complexity as to the legal issues and the fact that the oral hearing was short by reason that the appellant relied only on written submissions and having regard to the short form bill amount, I would fix those costs at $3,750.

Associate:

Dated:    30 November 2020