Applicant VCAT of 2002 v Minister for Immigration & Multicultural &... [2003] FCAFC 141 | Case summary

Federal Court of Australia (Full Court)|2003-06-27|Before: Ryan J, Gray ACJ, Gyles JJ

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal against a judgment of Ryan J given on 6 December 2002. His Honour dismissed an application for review by the appellants of a decision of the Refugee Review Tribunal (the Tribunal) made on 14 March 2002. The Tribunal had affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse the appellants protection visas. 2 The appellants are a family of four - father, mother, a son and a daughter. Their claims for protection visas were based on the circumstances of the father, whom we shall hereafter refer to as the appellant. The appellants are Sikhs and are citizens of India. They arrived in Australia on 12 February 2000.

the decision of the tribunal 3 What follows is a summary of the claims made and the evidence relied upon by the appellant, as set out by the Tribunal, so far as is relevant to this appeal. 4 The appellant was born in 1958 in Punjab. He moved with his family to Surat in Gujarat State in 1976 and became a truck driver. Then, in 1980, the family bought a hotel near Surat. The appellant gave up truck driving and began managing the hotel jointly with his brother. 5 On 13 January 1997, the family opened a second hotel (the hotel). The appellant went to work at this hotel with his younger brother, Jaswant. The appellant claimed that the hotel was used by young people who were forced to leave Punjab because of the problems arising from the Sikh separatist movement there. He said that a number of young people escaping from the police stayed at the hotel. The number of Punjabis coming and going caused the Gujarat police to keep the hotel under observation. 6 The appellant claimed that the police raided the hotel on 30 March 1997. At the time, he was away visiting relatives, but his brother, Jaswant, and four Sikh separatists were at the hotel. The police detained his brother for ten to twelve days and subjected him to torture because they believed he harboured separatists in the hotel and had not informed the police. He was released without charge after his father paid a bribe. Two of the separatists were detained and charged, and the other two escaped. 7 The following day the police looked for the appellant at the hotel. They questioned his wife and mother about his whereabouts. The appellant claimed that, upon being told that the police were enquiring about him, he went into hiding. As the Gujarat police continued to look for the appellant on a monthly basis, he remained in hiding for three years after the raid by staying with family members and moving around. The appellant claimed that he could not return to Gujarat because the police were still looking for him. 8 The appellant also claimed that he feared that the terrorists would harm him if he returned to Gujarat. The two separatists who had escaped told other hotel owners that the appellant's family would be killed, because they believed the family had organised the police raid. The appellant was told by his father that the family received anonymous phone calls in which death threats were made to Jaswant. 9 The appellant claimed that, on 25 April 1997, his brother was severely injured when his scooter was hit by a truck that was stolen by the two escaped separatists. This was retaliation against the appellant's brother for informing the police that the separatists were staying at the hotel. The appellant's father learned that the truck was stolen by the separatists from two men who had previously worked at the hotel and were asleep in the truck when it was taken. They witnessed the incident and were later threatened with death by the separatists if they told anyone what had happened. The appellant submitted a police report of the accident made by his other brother, which report referred to the driver of the vehicle as being unknown. 10 After setting out the claims and evidence the Tribunal recorded its findings and reasons. It commenced with references to various sources and authorities which the Tribunal said had established: · that applicants whose claims are plausible and credible should be given the benefit of the doubt; but · a decision maker does not have to accept uncritically all claims made by the applicant; · a state is not likely to be expected to grant refugee status to a person whose account, although plausible and coherent, is inconsistent with the state's understanding of conditions in the applicant's country of nationality; · the Tribunal must be sensitive to the special considerations that arise in the assessment of witness credibility in refugee matters; · it is not surprising that applicants for refugee status may exaggerate aspects of the case because they are engaged in an often desperate battle for freedom, if not for life. 11 The Tribunal then said that it took these matters into consideration, but, nevertheless, concluded that the appellant was not a credible witness. 12 The Tribunal did not accept that the appellant was wanted by the police because the police believed that the appellant and his brother, Jaswant, allowed Sikh terrorists to stay at their hotel. The Tribunal gave the following reasons for that conclusion: "It is not plausible, in view of the history of the first hotel, that another hotel owned by the applicant and his two brothers, situated only one and a half kilometres away from the first hotel on the same highway, would attract a clientele of Sikh militants escaping the Punjab immediately it opened (the hotel opened in January 1997, and the applicant stated that the four members of the Khalistan Commando Force had been staying at the hotel for over two months at the time of the police raid on 30 March 1997). The Tribunal does not find convincing the applicant's explanation that the militants liked the second hotel because it was newer and bigger than the first hotel." 13 The Tribunal then set out certain country information [extracted in full in par 23 of these reasons] and concluded from that information that Sikh militants were no longer active in Punjab in 1997. Hence, the Tribunal did not accept the appellant's claim that four members of the Khalistan Commando Force, who were escaping from Punjab, chose to stay at his hotel between January and March 1997. It continued: "The Tribunal finds implausible the applicant's claim that after the police raid the two terrorists who escaped stayed in Surat, informing other hotel owners that they regarded the applicant's family as being responsible for the raid, and saying that they would take revenge on the family. It is inherently implausible that terrorists would publicly inform people of their identity by linking themselves to the other two terrorists who were arrested in the raid, and as the police were presumably looking for them, neither is it plausible that they would have remained in Surat, particularly in the overt way claimed by the applicant, which could only have significantly increased the chance of them being caught. The Tribunal considers the claim that the terrorists copied the tactics of the police and staged a false encounter in which the applicant's brother was injured to be implausible. As discussed with the applicant, if the terrorists were openly stating that they were planning to harm the applicant's family, there seems little point in them trying to make it appear that the applicant's brother was harmed in a traffic accident. Whilst the police, particularly in Punjab, may have adopted 'staged' or 'fake' encounters as a modus operandi, the Tribunal has seen no reports of terrorists doing the same. As discussed with the applicant at the hearing, the Tribunal accepts that his brother was injured in a traffic accident, but does not accept that Sikh terrorists were responsible. The police report states that an unknown person caused the accident, and the Tribunal is not convinced by the applicant's subsequent claim that two former employees of the hotel witnessed the terrorists driving the truck. If this were the case, the applicant's brother would presumably have reported this new information to the police and could have obtained another report confirming that he had done so. The Tribunal does not accept what it considers to be a weak explanation by the applicant that his brother did report this new information to the police but they chose not to write it down. The Tribunal finds implausible the applicant's claim that five years after the raid, the police are still looking for him because they believe he assisted terrorists. As discussed with the applicant at the hearing, if the matter was so serious that it was still a matter of concern to the police five years later, the police would not have released the applicant's brother on payment of a bribe in the first place. The Tribunal also considers that if the matter was of such concern to the police, they would have followed it up with the other owner of the hotel, the applicant's brother, Surjit. The Tribunal notes that no charges have been laid against any members of the applicant's family in respect of this matter. In view of these considerations, the Tribunal does not accept the testimony of the applicant's sister-in-law that the police are still looking for the applicant, and finds that her evidence, which is only repeating what she claims she was told by the applicant's family, to be unreliable and made up for the purpose of assisting the applicant's application for refugee status. The Tribunal finds that the Indian police were not looking for the applicant in the past because they suspected him of assisting terrorists, and they are not looking for him now. The Tribunal's disbelief about the applicant's claims is strengthened by his failure to apply for an Australian visa for nearly three years after the police allegedly raided the hotel in March 1997, during which period the applicant claims that he was constantly on the run and in fear of the police and the terrorists. The applicant had a valid Indian passport issued in 1991. Many members of his wife's family were already living in Australia in March 1997 (his sister-in-law informed the Tribunal at the hearing that she was an Australian citizen and had been in Australia since 1986). When asked why he did not apply for a visa until January 2000, the applicant was not able to provide a reason other than that he had not thought to do so, and when further pressed on this point, he referred to the importance of his son's schooling. It is not believable that the applicant would not have thought to apply for a visa for Australia for three years if, during this period, he really was on the run from the police and from terrorists and fearful that he would be arrested or killed. Taking into account the above, the Tribunal finds that the applicant has fabricated the claims that Sikh militants stayed at the hotel he and his brother jointly owned, and that the police raided the hotel and arrested two of the militants and the applicant's brother, and that the police in Punjab and Gujarat have been looking for the applicant ever since. The Tribunal finds that the applicant is not wanted by the police anywhere in India for any Convention-related reason, and there is not a real chance that he would be harmed by the Indian authorities if he returns to India for his reason of his race or religion, a political opinion imputed to him or because of his family membership. As the Tribunal does not accept that Sikh militants stayed at the applicant's hotel and that two of them were arrested by the police, it does not accept that two other militants threatened the applicant's brother and injured him in a traffic accident as an act of revenge or that a Sikh militant group has any interest in harming the applicant for the same reason. The Tribunal finds that there is not a real chance that the applicant would be harmed by a Sikh militant group if he returned to India." 14 After considering a number of other matters not relevant to this appeal, the Tribunal affirmed the decision of the delegate to refuse the grant of the protection visas to the appellants. The appellants then instituted an application for review of the decision of the Tribunal. The application was heard by Ryan J on 16 October 2002.

The judgment of the primary judge 15 The appellants relied upon three arguments before Ryan J, namely, that the decision of the Tribunal was affected by actual bias, by apprehended bias, and was so unreasonable that no reasonable Tribunal could have reached the decision. 16 The parties accepted that his Honour at first instance was bound at the time of hearing by the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; [2002] FCAFC 228 (NAAV)as to the scope and application of s 474 of the Migration Act 1958 (Cth) (the Act). His Honour expressed certain views as to whether a decision affected by actual bias, apprehended bias, or Wednesbury unreasonableness would be protected by s 474 as interpreted in NAAV. However, these views were not determinative because his Honour concluded that the appellant had not demonstrated the existence of actual bias, apprehended bias, or unreasonableness. 17 As to actual bias, his Honour referred to the discussion in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun) in which it was said that actual bias involved prejudgment to the extent that the Tribunal was unable or unwilling to decide the case impartially. Actual bias is established if it is shown that the Tribunal approached the matter with a mind made up, so that, rather than searching for the truth, the Tribunal attempts to find justification or support for a point of view to which the Tribunal was already firmly committed. His Honour distinguished this situation from the case in which the Tribunal followed a process of logical reasoning which does not commend itself to the Court. His Honour then expressed the general conclusion that, although he might have reached different factual conclusions on some aspects of the case, the Tribunal had not approached the matter with a mind made up. 18 His Honour then dealt with some specific criticisms of the Tribunal, which were raised by the applicant as evidence of bias. They encompassed both criticisms relating to the conduct of the hearing, and criticisms derived from the written reasons of the Tribunal. In relation to the claim of apprehended bias his Honour said at par 23: "23. Mr Krohn [counsel for the applicant] submitted that where the Tribunal has made a series of assertions that elements of the applicant's account of events are implausible, the cumulative effect might be to "lead a fair-minded and reasonable observer to think that the tribunal might be prejudiced in the matter, [and] then that is sufficient at least to show apprehended bias". Although the possibility of a cumulative effect of that kind may be conceded, I do not consider that the circumstances of this case establish apprehended bias, let alone actual bias. …" 19 His Honour then continued, in respect to the allegation of actual bias: "24. … I have not been able to conclude that the Tribunal in the present case embarked upon its review with a mind fixed on rejecting the applicant's claims or foreclosed against those claims. Whether the applicant's claims were inherently likely or unlikely was not self-obvious but was a question on which reasonable minds might differ. The present Tribunal's approach to its task of fact-finding and the logic which it employed do not indicate to me a degree of capriciousness inconsistent with an attempt in good faith to discharge that task." "25. Nor does the fact that a succession of suggestions made in the course of questioning by the Tribunal and repeated in the Tribunal's ultimate findings of fact expose that the Tribunal member entered upon the hearing with predetermined views. As Wilcox J observed in Sun (at 122); '… it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested; "as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory". This includes questions designed to elicit information or submissions. Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions. The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view.'" "26. … Nor do I consider that the Tribunal exhibited in its reasons for decision, what Burchett J in Sun called "the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds." The Tribunal referred to a number of reports from several government sources all of which provided 'country information' to the effect that violence in the Punjab had either ended or had greatly diminished by 1997. That information assumed considerable importance in the Tribunal's reasoning. Counsel for the applicant pointed out that various new reports had been placed before the Tribunal indicating that significant violence in the Punjab had continued after 1997. However, that does not indicate that evidence favourable to the applicant was disregarded on merely colourable grounds. The Tribunal appears simply to have preferred "country information" which emanated from official sources. In my view, the evidence falls a long way short of establishing, to the standard exemplified by Sun, that the Tribunal came to the hearing with a closed mind and engaged in a merely colourable exercise of independent fact-finding and reasoning. 27. It was submitted that, in expressing disbelief at almost every step of the sequence of events for which the applicant had contended, the Tribunal had effectively made a finding of fraudulent concoction of a story, including an attempt by the applicant to gain an improper advantage by misrepresenting the cause of his brother's injuries. It is true that the Tribunal found that the applicant's version of events had been 'fabricated' and that he was not a credible witness. However, as I observed in Mousoof v Minister for Immigration and Multicultural Affairs [2000] FCA 1522 at [15]; '… … … the errors which the applicant imputes to it [the Tribunal] are all constituted by its declining to make findings of fact which he contends should have been made. The RRT took that course after forming its own view of the credibility of the applicant and the likelihood, as a matter of logic or human experience, of the applicant's assertions being true. Those were all intrinsically aspects of the fact-finding function reposed in the RRT by the Act.' 28. In the present case the Tribunal declined to accept the applicant's claims which it regarded as implausible in the light of its own logic or human experience. For the Court to revisit that issue would be an impermissible usurpation of the fact-finding function reposed in the Tribunal." 20 As to Wednesbury unreasonableness, his Honour said at par 30: "30. Mr Krohn for the applicant contended that the basis on which the Tribunal regarded the applicant's account as implausible was not simply one that would not commend itself to the Court, but was so unreasonable that it would not be adopted by any reasonable Tribunal. He pointed to the same matters which had been relied on in support of the claim of actual bias. I am equally unpersuaded that this same impugned conduct makes out a case of Wednesbury unreasonableness."

The procedural position 21 The appellant sought to raise three arguments on appeal, namely, that the decision of the Tribunal was affected by apprehended bias, that the Tribunal had denied the appellant natural justice by failing to give him an opportunity to comment on certain country information upon which it relied as a reason to dismiss the application, and that the Tribunal acted in breach of s 424A of the Act. 22 Whilst apprehended bias was argued before Ryan J, it was argued on a different basis to the argument pursued on appeal. The latter two arguments were not raised before the primary judge. In relation to at least the latter two arguments the appellant required, and applied for, leave to argue these grounds on appeal. The respondent opposed the grant of such leave. In determining whether to grant leave to raise a new ground on appeal, an important consideration is the appellant's chances of success on that argument on the appeal. Thus, it is convenient to consider immediately the merits of each of the three grounds of appeal pursued at the hearing of the appeal.

Natural Justice - Country Information 23 The Tribunal's conclusion that the appellant did not harbour the four separatists in the hotel between January and March 1997 was partly based on the view that the Sikh militants were no longer active in Punjab in 1997. The Tribunal's understanding of the duration of Sikh militancy was derived from country information. This information and the Tribunal's conclusion were set out in the decision as follows: "The Tribunal notes that country information indicates that by March 1997, the Sikh militant movement was no longer active in Punjab. As early as mid-1993, the Department of Foreign Affairs and Trade had commented that : 'Although some clashes between militants and security forces were recorded in the Punjab this month, the overall level of violence remains low and reflects the virtual return to normalcy in the state. (DFAT cable 0.ND 495, 5 July 1993)'

The United States government made the following comments on the security situation in the Punjab in 1994 in its annual report on human rights practices in India: 'In Punjab, instances of terrorist violence virtually disappeared in 1994, and the number of Sikh militants killed diminished considerably from 1993. The NHRC, visiting the state in April, concurred with a widespread public perception that Punjabi militancy was at an end and that police excesses could no longer be explained as a response to an emergency. In a report issued in August, the NHRC strongly recommended that the Punjab state government take steps to restore the normal functioning and oversight of the police. (US Department of State, Country Reports on Human Rights Practices 1994, India)' The Canadian government commented as follows: 'Almost all reports on the human rights situation in Punjab consulted by the Research Directorate have stated that, in recent years, "normalcy" has returned to the state. Many of the sources contacted while researching this response also indicate that the political and human rights situations in Punjab have improved markedly since the end of the militancy (Canadian Immigration and Refugee Board, IND30759, 12 January 1999, India: Information on the human rights situation in Punjab in 1998, in particular, reports that human rights workers are being arrested, intimidated and threatened by the Punjab Police).' The UK Home Office stated that: '5.3.105 The Sikh militant movement is no longer active in Punjab. The hard core militants have either been physically wiped out or are no longer in India. There were no reports in 1997 and 1998 of Sikh militants forcing the local population to provide them with assistance. There is no obvious support for the militants and the people of Punjab want peace. A few remaining Sikh militant leaders are now based in Pakistan and their activities appear to be ineffectual. (UK Home Office Country Assessment: India, 1999)' In view of the above country information that Sikh militants were no longer active in Punjab in 1997, the Tribunal does not accept the applicant's claim that four members of the Khalistan Commando Force escaping from Punjab chose to stay at his hotel in January - March 1997." 24 When the hearing before the Tribunal commenced, the member mentioned this information: "MS GOULD: Now, I've read your Department of Immigration file, so I already have an idea of what you claim your problems are, and I'm going to be asking you a number of questions and trying to get as clear a picture of your circumstances as I can. I may also talk to you about information I have concerning India. This information may come from experts on India or from Australian government representatives in India. I'll tell you what that information may mean in your case and give you the opportunity to comment on it." [emphasis added] 25 Mr Kissane, who appeared as counsel for the appellants on appeal (although not at the trial), argued that the information was central to the Tribunal's reasoning. He contended that, in the passage concerning Sikh militancy referred to in the previous paragraph of these reasons, the Tribunal undertook to raise with the appellant any country information that it had, which was relevant to the application, and to specify the source of that information. By saying that it would do so, the Tribunal raised an expectation that it would draw the appellant's attention to the specific source of the country information. By failing to do so, the Tribunal failed to fulfil that expectation, and thereby denied the appellant natural justice. Further, the requirements of natural justice required the Tribunal to indicate to the appellant that the information was considered significantly adverse to the appellant's claims and to afford the appellant the chance to respond to that view. Again, by failing to so indicate and to give the appellant such a chance, the appellant was denied natural justice. 26 We do not accept these arguments. The Tribunal did not undertake, in the introductory remarks referred to, to identify the source of the country information upon which it might rely. Rather, it indicated that it may refer to information in the way that the information related to the circumstances of the case. The opening remarks did not give rise to the expectation alleged. The requirements of natural justice were satisfied without direct reference to the source of the material. 27 At most, natural justice required that the Tribunal disclose to the appellant the substance of the country information, sufficiently indicate its importance, and give the appellant an opportunity to respond to the information. In our view the Tribunal complied with these requirements. 28 The Tribunal expressly disclosed the substance of the country information, that Sikh militant activity had ceased by 1997, and gave the appellant ample opportunity to comment. This is shown in the following exchange:

"INTERPRETER: It was only when the government started bothering them that the people started leaving the Punjab and coming towards Gudjurat. MS GOULD: But … most of the troubles in Punjab occurred before 1997, before your second hotel was opened, when you only had the first hotel. INTERPRETER: It was the people who couldn't return to Punjab that had left some years earlier. MS GOULD: So people who had left the Punjab some years earlier began staying at your second hotel after 1997. INTERPRETER: Yes. MS GOULD: That sounds a bit odd to me ... INTERPRETER: There were four men. MS GOULD: I'm talking generally about the type of customers you had at your hotel. INTERPRETER: There was all kinds of customers: Hindus, Muslims, Sheiks. Because it was a highway from - and there was a lot of traffic between Delhi and Bombay. MS GOULD: But the thing is … your family ran a hotel on the same highway, only a kilometre and a half apart, for 17 years. During that time, there were major problems in the Punjab, with a lot of people having to escape, but you don't report any problems. INTERPRETER: There was no problem earlier; it was in the new hotel. MS GOULD: Given that the situation in Punjab had improved very considerably by 1997, it seems strange that your problems should begin so late in the day. INTERPRETER: These things used to - had occurred earlier, but it does look strange, but the fact is that these people brought their revolvers and put them in front of us." [emphasis added] 29 This exchange occurred early in the hearing. The country information in respect to Sikh militancy after 1997 was the first issue on which the Tribunal member expressed doubt - "sounds a bit odd to me" - and then shortly after - "it seems strange". In the context of this hearing, it was clear from the reaction of the Tribunal member that the cessation of militancy by 1997 was a matter of both importance and concern.

30 Then, at the end of the questioning, the Tribunal member gave the appellant two further opportunities to expand on his answers. First she asked: "MS GOULD: All right. I think I've actually asked you all the questions which I wanted to. Is there anything else which you want to tell me?" And immediately afterwards she said: "MS GOULD: Well, I'm happy to listen to any other information you want to give me. I've indicated to you some areas where I do have problems with your story, and if you want to, you know, say anything more about those things, then I'm here to listen." 31 The appellant was further alerted to the issue because evidence that Sikh militant activity had ceased by 1997 was one reason why the delegate rejected the application at first instance. That decision, dated 7 September 2000, included the following: "I note that the applicant states that he bought the hotel in 1995 and that it was open for business in January 1997. The applicant claims that due to the troubles in the Punjab many people left the region and came to stay at his hotel. I note that the country information does not support the applicant's claims that in 1997 there were continuing problems in the Punjab and that many young Sikhs were escaping from the Punjab. The country information states: 'WE CAN CONFIRM OUR ADVICE THAT THERE HAS BEEN A WHOLESALE POLITICAL RESOLUTION OF THE SEPARATIST PROBLEMS IN THE PUNJAB, A QUANTUM LEAP IN STATE OFFICIALS' AWARENESS OF HUMAN RIGHTS ISSUES AND IN THEIR RECOGNITION OF THE NEED TO ELIMINATE PRACTICES WHICH BREACH INDIA'S HUMAN RIGHTS OBLIGATIONS. IN ADDITION, WE WOULD NOT EXPECT RELOCATION IN OTHER AREAS OF INDIA WOULD PRESENT PROBLEMS FOR PUNJABIS.' (Country Information Service, INDIA: PUNJAB - REFUGEE INFORMATION REQUEST (RRT) - IND20794, 13 May 1996 CX16227. Further country information states: 'Nearly six years have passed since a Sikh militants' campaign for an independent state they called Khalistan was stamped out in the fertile farming region, but thousands like Rajnish are still traumatized.' (Reuters, FEATURE-MILITANCY STILL HAUNTS INDIA'S PUNJAB, 2 SEP 1999 CX38493. In light of this country information I do not accept that there would be many young Sikhs who would be leaving the region and finding themselves in Gujarat because of persecution from the Punjabi police." [emphasis added] 32 Presumably, the delegate's decision was part of the departmental file. In her introductory remarks the Tribunal member indicated that she had read the departmental file, and that it was part of the material before her. She thereby indicated to the appellant that the issue was before her, and could be a factor in determining the appellant's case. 33 Furthermore, the appellant was legally represented in relation to the Tribunal proceedings. His solicitor filed an eleven page submission dated 4 March 2002. This was an opportunity for the solicitor to make submissions about the incidence of Sikh militancy in 1997 which had been decisive in the delegate's decision. The same solicitor was present throughout the hearing before the Tribunal. After the Tribunal member gave the appellant the opportunities referred to in par 30, she said to the solicitor: "Ms Anderson, was there any aspect of [the applicant's] evidence that you would like me to go over or check with him." and the solicitor replied: "Just one issue. Given the inability to provide documentation concerning the 'accident', I just wondered if the applicant could be asked how he came to know that they were terrorists." 34 Thus, the appellant, directly, and through his legal advisor, was made aware of the information that Sikh militancy had ceased in 1997, and that, as a result of this information, the Tribunal doubted that the four Sikh militants stayed at the hotel in early 1997. He was also alerted that this was a significant matter in the mind of the Tribunal. The appellant was given a number of opportunities to respond to these doubts, and did so. The appellant's solicitor was also asked whether any further response should be sought from the appellant in respect to any of his evidence. The solicitor raised one issue, but did not suggest that any further response should be sought in relation to the question of the existence of Sikh militant activity in 1997. In these circumstances, there was no denial of natural justice in relation to the Tribunal's reliance on the country information concerning Sikh militancy in 1997. 35 We note the appellant relied upon the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, in support of the appellant's argument on this aspect of the appeal. We agree with the respondent's submission that, for the reasons just expressed, the circumstances of this case do not infringe the requirements of procedural fairness referred to in that case.

Natural Justice - Apprehended Bias 36 As to the existence of apprehended bias, the appellant relied on the approach described in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-5; [2001] HCA 28 at par 27-32 (Re H) as follows: "27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of 'a fair-minded lay observer' when, as is the case with the Tribunal, proceedings are held in private. 28. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 29. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. 30. Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. 31. Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view." 37 In the present appeal, Mr Kissane contended that the Tribunal did not let the appellant tell his story. The hearing, he said, took the form of a cross-examination. The appellant was not asked open-ended questions that would have offered him a real opportunity to explain his circumstances. In the absence of the appellant having been given such an opportunity, a fair minded lay observer might well infer that the Tribunal approached the hearing with a fixed view that the outcome would be adverse to the appellant. 38 This argument fails at the first hurdle. Accepting for the purposes of argument that a fair hearing requires the Tribunal to put open-ended questions to the applicant at some stage of the hearing, the allegation that the Tribunal failed to do so in this case is not made out. As set out in par 30 of these reasons, the Tribunal member twice asked the appellant whether there was anything further he wished to say to her concerning his case. And, shortly afterwards, as set out in par 33 of these reasons, the Tribunal asked the appellant's solicitor whether there was any further aspect of the appellant's evidence that the Tribunal should check with the appellant. The transcript of the hearing, thus, reveals that the appellant was given sufficient open invitations to tell his story and does not support the argument that a fair minded observer would infer that the Tribunal approached the hearing with a mind made up.

Section 424A 39 Section 424A of the Act provides: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purpose of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or that is non-disclosable information." 40 Section 441A provides: Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. Giving by hand (2) One method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient. Handing to a person at last residential or business address (3) Another method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who: (a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age. Dispatch by prepaid post or by other prepaid means (4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. Transmission by fax, e-mail or other electronic means (5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by: (a) fax; or (b) e-mail; or (c) other electronic means; to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review." 41 Mr Kissane rightly characterised the appellant's argument under s 424A as a technical argument. He argued that the Tribunal considered that the information which was contained in the police report of the accident (that the driver of the truck which struck Jaswant's scooter was unknown) would be part of the reason for affirming the decision under review. The Tribunal was therefore obliged to invite the appellant to comment on that information: s 424A(1). Section 424A(2) requires that both the information and invitation must be given to the applicant, relevantly, by one of the methods specified in s 441A. That section applies to the provision of documents. It may be that the effect of s 424A(2) is that the invitation to comment can only be conveyed in a document, and thus, not orally during a hearing. Although s 424A(2)(a) seems to suggest the same result in respect of the provision of information, that result appears to be in conflict with s 424A(1)(a) which allows the Tribunal to give the applicant particulars of the information "in the way that the Tribunal considers appropriate in the circumstances". For the purposes of the present appeal, we are prepared to assume, without deciding, that the Tribunal was obliged to comply with s 441A in respect of both the information in the police report and the invitation to comment on it. 42 The respondent argued that the police report was provided by the appellant and, hence, the exception in s 424A(3)(b) applied. In reply, the appellant said that the police report had been provided to the delegate for the purposes of the visa application. He relied on Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919 (Al Shamry) for the proposition that the application referred to in s 424A(3)(b) is the application for review by the Tribunal. The police report, it was contended, had been produced at the earlier stage, namely, at the time the visa application had been made. Consequently, the exception did not apply. The respondent then sought to distinguish the circumstances of the application in the present case from the circumstances of the application dealt with in Al Shamry. 43 It is not necessary for us to consider the question raised in Al Shamry. There is a strong argument in this case that the police report was produced for the purposes of the application before the Tribunal by the reference to it in the submissions dated 4 March 2000 by the solicitor for the appellant. 44 We are able to resolve this aspect of the appeal on the assumption, without deciding, that the Tribunal failed to invite the appellant in writing to comment on the absence of reference to the separatists in the police report, and that the Tribunal thereby failed to comply with s 424A(1). 45 The application to the Court is brought under s 39B of the Judiciary Act 1903 (Cth). The Court has a discretion to refuse relief even if it finds that the decision in question was affected by an error of law: see Re H at 435, par 33 per Gleeson, Gaudron and Gummow JJ; and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at 89, Gaudron and Gummow JJ at 92, 107, Kirby J at 136-137, Hayne J at 144; [2000] HCA 57 at pars 5, 17, 54-55, 148, 172. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, the High Court said at 400: "The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld." [emphasis added] 46 The purpose of s 424A is to ensure that an applicant has the chance to respond to certain information on which the Tribunal intends to rely. An examination of the facts shows that the appellant was given such an opportunity, albeit on the assumption we make, one that did not comply with the requirements of s 424A(1). This is a relevant matter in the exercise of discretion. 47 In his original statutory declaration made on 10 March 2000 in support of his visa application, the appellant stated that his brother, Jaswant, whilst riding his scooter on 25 April 1997, was hit by a truck driven by one of the separatists who had escaped from the police raid on the hotel. In a further statutory declaration made on 12 April 2000 the appellant said: "I have obtained a police report by my brother, Surjit … in relation to the incident in which my younger brother, Jaswant … was deliberately hit by a truck driven by separatists as described in paragraph 13 of my statutory declaration dated 10 March 2000. The translation of the police report incorrectly states that the perpetrator was an unknown jeep driver." The appellant then explained how the mistake occurred and also how his father had been told that one of the terrorists had been driving the truck at the time of the accident. A translation of the police report seems to have been provided at the time that the second statutory declaration was provided. 48 The material was considered by the delegate in her decision dated 7 September 2000. She concluded: "One would expect that once the family was made aware that Jaswant … was hit by a truck that was driven by terrorists then they would have approached the Indian police and informed them adding a further statement to the first statement. However this has not happened and the details of the first statement stand. It would be expected that if the family believed that the accident was really caused by the terrorists then the applicant's family would disclose this information to the Indian authorities so that they could carry out their investigations and charge those that are responsible. Therefore I do not accept that the applicant's brother was hit by a truck that was driven by terrorists." 49 Then, in the submission dated 4 March 2002 that was prepared by the appellant's solicitor and filed at the commencement of the hearing before the Tribunal, the following appears: "In his statutory declaration dated the 12 March 2000, the applicant explains the inconsistencies in the police report with his statement dated the 10 March 2000. Essentially, he confirms that Jaswant … was hit deliberately by a truck driven by separatists." 50 On the subject, the following exchanges occurred at the hearing: "MS GOULD: Look, I'm quite prepared to accept that your brother had a serious accident and has suffered serious injuries as a result of the accident. There isn't anything in any of the documents you've given me which links your brother's road accident with Sikh terrorists. INTERPRETER: We have received a video of the wedding of my brother's daughter, and you can see what he looks like there. MS GOULD: … I don't doubt that your brother has had a tragic accident and was indeed hit by a truck or a jeep or whatever. What I'm saying is that there's nothing in the material you have given me, the documents you've provided, which links his accident to a deliberate attack by Sikh terrorists. INTERPRETER: So how can we show you that? We can't bring the people and show you that. MS GOULD: Well, that is a problem. That is a problem, yes. The question arises - it's whether or not I believe you, is what it comes down to. Now, whether or not I believe you depends on whether or not I believe your whole story. I'm simply pointing out to you at this stage that, although I accept that your brother had an accident and that he was seriously injured, you haven't provided me - none of the documents you've given me link that to this accident having been caused by Sikh terrorists. INTERPRETER: Nobody knew at that time who was responsible for the accident. He was going home at about 9 in the evening from the hotel. The accident occurred around 10 pm and some people were going to catch a train, because they were going to Dubai or Muscat or wherever, and they realised that somebody was on the road and they realised from the number of the scooter that it was my brother. MS GOULD: … I do accept that your brother had a very serious road accident in April 1997. I accept that. But what I'm saying is you've not - the documents you have given me which support the fact that he had the accident don't link the accident to Sikh terrorists. … MS GOULD: All right. Ms Anderson, was there any aspect of [the applicant's] evidence that you would like me to go over or check with him? MS ANDERSON: Just one issue. Given the inability to provide documentation concerning the 'accident', I just wondered if the applicant could be asked how he came to know that they were terrorists. MS GOULD: I had assumed that there was this story about two people who were sleeping in the cab of the truck or something … in relation to your brother's accident, how is it that you have come to think that the terrorists were responsible for it? INTERPRETER: The two people sleeping in the cabin of the truck used to work at our hotel earlier. These two people woke up in the cabin when the truck started moving, and they saw the accident and then these terrorists threatened them, saying 'If you tell anybody, we will kill you.' MS GOULD: So why did they tell anyone? INTERPRETER: Because they said, 'We have been working for you for so long. We need to tell you. You've been paying our salaries. You looked after us for a long time.' MS GOULD: So why didn't your brother go back to the police and make a specific report as to the people - as to this new evidence? INTERPRETER: It is written in the police report that these people told us. It's written in the (indistinct) that these are the witnesses. MS GOULD: Yes, but why didn't your brother go and tell the Gudjurati police who they believed the people were who were responsible? INTERPRETER: He did. MS GOULD: Well, that isn't in the report, I don't think, is it? INTERPRETER: He did tell them the truck's number occurred there, but they might not have written it. MS GOULD: Well, I mean, if the truck was stolen, that wouldn't have got anyone very far. But the point is, if your brother knew who these terrorists were, why didn't he go and tell that to the Gudjurati police? INTERPRETER: He did tell them that, 'The two people who were escaped are the ones who hit me.' MS GOULD: Yes, but the issue is who were these two people, and you're saying that you have information that they were Sikh terrorists. I'm asking why your brother didn't go and tell that to the Gudjurati police. INTERPRETER: He did tell them when he made the report. He said, 'The two people in the cabin have told us that these were the two who had escaped earlier.' MS GOULD: Is that in this police report? INTERPRETER: It will be only an accident --- MS GOULD: Well, is it in there …? INTERPRETER: It's written that it's an accident. MS GOULD: And it's written that the person, the driver, is unknown. INTERPRETER: The police report was written earlier. They didn't know at that point. MS GOULD: Well, that gets back to my original question, which is, when your brother found out, why didn't he go back to the police and tell them this new information? INTERPRETER: I wasn't there.

MS GOULD: That's not really an answer which gets us very far. Now, I know you can't be responsible for what your brother did or didn't do, but in terms of whether your story is likely or not, I think it's a reasonable question to ask - why your brother would not have given this important information to the police when he obtained it. INTERPRETER: He did tell them. It's whether the police writes it or not - is the police's problem. They followed - they investigated for three or four months, but once they didn't get anywhere, they closed the file." 51 The Tribunal made the following finding on the responsibility of the terrorists for the injury to Jaswant: "As discussed with the applicant at the hearing, the Tribunal accepts that his brother was injured in a traffic accident, but does not accept that Sikh terrorists were responsible. The police report states that an unknown person caused the accident, and the Tribunal is not convinced by the applicant's subsequent claim that two former employees of the hotel witnessed the terrorists driving the truck. If this were the case, the applicant's brother would presumably have reported this new information to the police and could have obtained another report confirming that he had done so. The Tribunal does not accept what it considers to be a weak explanation by the applicant that his brother did report this new information to the police but they chose not to write it down." 52 The appellant was not disadvantaged in relation to the contents of the police report. He produced it for the delegate and made statutory declarations as to its contents. His solicitor relied upon it in written submissions filed in the Tribunal. The Tribunal member raised the issue of the reference to the unknown driver of the truck directly with the appellant on two occasions. On each of those occasions she indicated her concern that the police report failed to state that one of the terrorists was the driver of the truck. The appellant had several opportunities to address the way in which the police report related to his allegation that the separatists were responsible for the accident. Then, at the conclusion of the appellant's evidence, the Tribunal member asked the appellant's solicitor whether any further clarification of his evidence was required. The solicitor referred to the very issue of the police report. As a result, the Tribunal member then raised the issue again with the appellant. The long exchange is extracted in the previous paragraph of these reasons. In these circumstances we would exercise our discretion to refuse relief to the appellant.

Conclusion 53 As none of the three grounds pursued at the hearing of the appeal can succeed, we refuse leave to the appellant to raise those arguments on appeal that were not raised before Ryan J, and to the extent that the apprehended bias ground was raised, we agree with his Honour that it should be rejected. 54 Before concluding these reasons we feel bound to make some observations about the conduct of the appeal. 55 The notice of appeal raised a number of grounds that were not pursued at the hearing. The Chief Justice has issued Practice Note 1 which applies to appeals to the Full Court and provides: C - Notice of Appeal Abandoned

Counsel for the appellant shall, within a reasonable time before the hearing of an appeal, give notice to the Court and to the other parties to the appeal of any grounds of appeal to be abandoned. Likewise, with respect to the grounds advanced in a Notice of Contention.

The appellant failed to give notice to the Court or to the respondent, as required by Practice Note 1, that a number of grounds of appeal were to be abandoned. 56 Further, the notice of appeal did not raise the two new grounds of appeal which the appellant sought to argue at the hearing, and did not particularise the apprehended bias ground in the way that this ground was argued at the hearing of the appeal. Even at the hearing, no amended grounds of appeal were formulated. 57 The apprehended bias argument was raised in the initial written submissions, but again, on a different basis to that pursued orally at the hearing. The submissions relied upon a Wednesbury unreasonableness ground, and that was also not pursued in oral argument. On both of these issues the respondent was put to the trouble of preparing written submissions in answer to arguments that were proposed but not pursued. Three judges of the Court also devoted time to the preparation of the appeal, on the grounds not pursued. Two days before the hearing, the appellant filed a supplementary outline of argument, which raised the natural justice argument concerning country information that was pursued at the hearing. However, due to the lateness of the filing of the appellant's further submissions, the Court did not have the benefit of any written submissions in response from the respondent on this argument. 58 Further, the arguments that were pursued at the hearing required an examination of the transcript of the hearing before the Tribunal. However, the transcript was not included in the appeal book, the appellant made no arrangement for the members of the Court to receive a copy of it, either before or at the hearing of the appeal, and there were no references to the transcript in the submissions filed by the appellant. 59 We draw attention to these shortcomings because similar deficiencies are occurring more often, particularly in appeals relating to decisions of the Refugee Review Tribunal. The faults are especially prevalent among a small group of solicitors who represent appellants in such proceedings. By focusing attention on the problem we hope that practitioners, both solicitors and counsel, will respond by ensuring that notices of appeal pin-point and articulate the arguments to be pursued on appeal, the submissions expand on those grounds with clarity and, where grounds are not to be pursued, the appellant gives notice to the Court and the respondent well in advance of the hearing. 60 In other litigation, failure to comply with procedural requirements can lead to the dismissal of the appeal. In the circumstances of refugee cases the Court is properly much less willing to visit the dilatoriness of legal representatives on their clients. But, as we have said, the failure to conduct appeals properly involves increased expense to the respondent in preparation of arguments which are not ultimately pursued, or which are expressed so poorly that a response is made difficult. There is also increased public expense involved in unnecessary preparation by judges prior to a hearing. In the end, the Court is particularly concerned at the disservice done to appellants. Where the appeal fails and the appellant is ordered to pay the costs, the appellant will have to meet the costs of the respondent's attempts to grapple with inadequate notices of appeal and submissions. Further, the appellant will be obliged to pay his own legal representatives for work that does not warrant remuneration. 61 In future, in order to protect the interests of appellants in such situations, the Court would be justified in giving serious consideration to making orders that all or part of the costs of the respondent be paid by the appellant's legal representatives. 62 The Court understands that lawyers acting for appellants in these types of appeals sometimes face particular difficulties arising from their client's lack of funding or unfamiliarity with the legal process and consequent difficulty in obtaining instructions. Where such factors impede the proper compliance with the procedural requirements for the preparation of an appeal, the appellant's legal representatives should approach the Court for orders which address these difficulties. I certify that the preceding sixty - two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 27 June 2003 Counsel for the Appellant: B Kissane

Solicitor for the Appellant: Wimal and Associates

Migration Act 1958(Cth)ss 424A, 441A, 474

Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

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