AZAEY v Minister for Immigration and Border Protection

Federal Court of Australia (Full Court)|2015-12-23|Before: Flick JJ

The name of the Second Respondent is changed to Administrative Appeals Tribunal.
The Application for an extension of time filed on 8 July 2015 is granted.
The appeal is dismissed.
The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 213 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)

JUDGES: NORTH, BESANKO AND FLICK JJ DATE: 23 december 2015 PLACE: ADELAIDE

REASONS FOR JUDGMENT THE COURT 1 The Applicant in the present proceeding was born in 1984 and is a single female of Kikuyu ethnicity from Kiambu, Kenya. 2 She arrived in Australia in 2009 on a student visa. 3 In February 2013 she applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. She claimed to have "suffered intimidation, harassment, violent threats and death threats from local Mungiki gangs because [she] was outspoken against their violence, rapes and forced female genital mutilation". A delegate of the Minister refused that application in July 2013. 4 An application for review was then filed with the former Refugee Review Tribunal in July 2013. That Tribunal affirmed the delegate's decision in April 2014. 5 An application for review of the Tribunal's decision was dismissed by the Federal Circuit Court of Australia in June 2015: AZAEY v Minister for Immigration & Anor [2015] FCCA 1642. 6 An Application for an extension of time, an affidavit in support of that Application, and a Draft Notice of Appeal were filed in this Court in July 2015. In summary form, the proposed Grounds of Appeal are there set forth as including: jurisdictional error on the part of the Tribunal, and appellable error on the part of the primary Judge in not finding jurisdictional error, by reason of the hearing before the Tribunal being "marked by the Tribunal Member's ill temper, tendency to adopt a rude and sarcastic tone, her lack of sensitivity" (Grounds 1, 2 and 3); error on the part of the primary Judge in not concluding that the Tribunal had "failed to consider an essential integer of the Appellant's refugee claims" (Ground 4); and error on the part of the primary Judge in finding that the Tribunal "had made a finding that the Appellant did not have any relatives amongst the Mungiki, when the Tribunal made no such finding" (Ground 5). The affidavit in support of the Application for an extension of time was affirmed by the then solicitor appearing for the Applicant. The affidavit states that the solicitor's "assistant" did "not press the 'finalise' button on the elodgment system and so the appeal was not lodged in time". 7 The Applicant had the assistance of a migration agent before the Tribunal and was represented before the Federal Circuit Court. The solicitor previously instructed to appear for the Applicant subsequently withdrew and the Applicant appeared before this Court unrepresented. The proposed Grounds of Appeal drafted by the Applicant's then legal representatives have been taken to provide the framework within which the proceeding is to be resolved. 8 The extension of time is to be granted but the appeal is to be dismissed.

An extension of time of one day? 9 An appeal from the decision of the Federal Circuit Court of Australia should have been filed within 21 days: Federal Court Rules 2011 (Cth), r 36.03. That 21 day period expired on 7 July 2015. The proceeding in this Court was not sought to be instituted until 8 July 2015. The extension of time which is thus sought is, accordingly, a period of one day. 10 In exercising the discretion to grant or refuse an extension of time, the considerations to be taken into account have been variously expressed. Thus, for example, in SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281, Collier J has summarised these considerations as follows: [15] In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J explained principles relevant to the exercise of the power of the Court to extend time in which to make an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These principles are of general application. In summary, relevant factors for consideration by the Court include: • whether the applicant has provided an acceptable explanation for the delay in lodging the application; • whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and • the merits of the substantial application. More recently, in Reaper v Baycorp Collections PDL (Aust) Pty Ltd [2014] FCA 426 Tracey J has observed: [12] An application for an extension of time within which to file a notice of appeal may be made pursuant to Rule 36.04 of the Rules. The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that "the respondent to the application has a vested right to retain the judgment, the subject of the appeal": see Jackamarra v Krakourer (1998) 195 CLR 516 at 519-20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A "full rehearsal" of the argument on appeal is not required. Any assessment of "the merits" must necessarily be undertaken "in a fairly rough and ready way": see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191-2 and the authorities therein referred to. 11 In the circumstances of the present case, the Respondent Minister obviously enough does not claim prejudice. But an extension of time may be refused even in the absence of prejudice: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [37] to [39], (2001) 117 FCR 424 at 349 to 440 per Allsop J (as his Honour then was, with whom Drummond and Mansfield JJ agreed); SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [36] per Rares, Flick and Griffiths JJ. 12 In concluding that an extension of time should be granted, it is concluded that the extension required is minimal; a satisfactory explanation for the delay has been provided; and that the alleged denial of procedural fairness warrants scrutiny by this Court. The Respondent Minister, moreover, quite properly does not oppose an extension being granted.

Grounds 1 & 2 - ill temper, rudeness & sarcasm? 13 It was common ground that the Applicant was entitled "to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review": Migration Act 1958 (Cth), s 425(1) (the "Migration Act"). 14 The first three of the proposed Grounds of Appeal are all directed to the manner in which the hearing before the Tribunal was conducted. But it is Grounds 1 and 2 which most clearly question whether comments made by the Tribunal member throughout that hearing denied the Applicant an opportunity of being heard by reason of those comments founding a reasonable apprehension of bias. 15 Indeed, the only argument advanced orally by the Applicant before this Court centred on the alleged "unfairness" of the hearing before the Tribunal. In very summary form, the Applicant alleged unfairness and an unwillingness on the part of the Tribunal member to listen to her claims. In support of that argument the Applicant referred to the "body language" of the Tribunal member and the member's "rolling of her eyes" and her "sarcastic" and "rude" interruptions to her evidence. The Tribunal hearing was conducted by means of a video-link from Adelaide. 16 The starting point to resolve the argument is the general proposition that, in the absence of a statutory provision to the contrary, a party to an administrative process is entitled to have a claim resolved by a decision-maker whose mind is open to persuasion: e.g., Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507. Gleeson CJ and Gummow J there relevantly observed: [71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias. [72] … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion … 17 The "governing principle", it has been said, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision-making process: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 to 345. Gleeson CJ, McHugh, Gummow and Hayne JJ expressed the general principle as follows: [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 18 The facts and circumstances which may give rise to a reasonable apprehension of bias are many - ranging from an administrative decision-maker's prior involvement (for example) in the formulation of a disciplinary complaint to public comments made by a Minister or other decision-maker later called upon to decide a matter upon which comment has already been made. 19 Within the spectrum of possible arguments lie those cases where reliance is placed upon comments made by the decision-maker throughout the course of an administrative hearing. 20 Thus, and by way of example, occasional displays of impatience and irritation, whether justified or not, may not amount to disqualifying bias: cf. VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, (2003) 131 FCR 102 at 126. Kenny J there cited with approval the following observations of Kirby J in Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230: While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator … "Harsh tones" may not be sufficient: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [37] to [39]. Katzmann J there concluded that there was no "logical connection between the harshness of tone in a member's questioning and an inability to bring an open mind to the resolution of the issues in a case, particularly where it is to be expected that the Tribunal will probe the witness's answers to test the truth of the account being offered to it". But "excessive judicial intervention", especially where a party is unrepresented, may be sufficient: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 394 per Kirby P. 21 Views may well differ as to whether a Tribunal member has "overstepped the mark" so as to found a reasonable apprehension that a claimant will not receive a fair hearing. In concluding that the Tribunal member had overstepped the mark in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, (2003) 131 FCR at 127, Kenny J said: [82] The vice was not that the Member had an adverse opinion about the applicant's claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant's claim when the hearing commences: see s 425(1) to (2). The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim - that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts. Her Honour continued: [83] It is no answer, in this case, to say that the Member recollected herself at the end of the hearing, if (as I find) her conduct gave rise to a reasonable apprehension that she might have so closed her mind to the applicant's case that this might distort her judgment … See also SZRZK v Minister for Immigration and Border Protection [2014] FCA 69 at [27] per Robertson J. 22 Such prior observations by Judges of this Court do not preclude, it is respectfully considered, a reasonable apprehension of bias being exposed even by an isolated statement made by a decision-maker or by an isolated exchange between a decision-maker and a claimant. It has thus been repeatedly acknowledged that "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done": R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ. 23 In the present proceeding there has been made available to the Court both a transcript of the hearing before the Tribunal and a recording of that hearing. A video of the hearing was not available to either the Federal Circuit Court or this Court. An assessment is thus not possible as to whether the Tribunal member "rolled her eyes" or otherwise exhibited by her "body language" an unwillingness to entertain the Applicant's claims on their merits. Any assessment is necessarily confined to inferences that can be drawn from the transcript and the audio recording of the hearing. The onus, it is to be recalled, rested upon the Applicant to make out her claims to a reasonable apprehension of bias: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. The absence of any video recording limited the available submissions open to the Applicant to advance in reliance upon what only a video recording could reveal. 24 What the recording discloses which the transcript does not is the fact that on a limited number of occasions the Tribunal member: raises her voice; and asks questions in an incredulous manner. And, when addressing her reservations in respect to aspects of the evidence given by the Applicant towards the end of the hearing, the Tribunal member expresses those reservations: in an emphatic manner. Both the transcript and the recording also disclose: a number of occasions when the Applicant was interrupted in answering questions posed by the Tribunal member. 25 The manner in which the hearing was conducted gave rise to the following exchange towards the end of the hearing between the Tribunal member and the migration agent (Ms Lester): Ms Lester: I'm a bit concerned I have to say about some of the questions - you're stopped her quite a bit. Tribunal Member: Oh look I do apologise - Ms Lester Sorry, could I please - Tribunal Member: Yeah, sorry. Ms Lester: I'm a bit concerned about - I have to put on the record that I'm concerned about some of your questions. Because the questions - you've asked her a questions and you haven't let her, on many occasions, finish her answer and you've actually just then jumped straight into the next question and I'm - I just feel that you haven't given her enough - on some occasions - a fair opportunity to - Tribunal member: I - Ms Lester: finish what she was actually said and I just want that on the record. (sound of crying in background) Tribunal member: Okay, look, and as I said - Ms Lester: And I would like some time with my client to actually just talk to her about um - just several things that I thought that she would want to perhaps mention. (crying in background) Tribunal member: Okay, look, I understand that and I am sorry, I do recognise that I have done that on occasions and I've tried to stop doing that, but it's - I have a very bad delay here and I do apologise for that and so I'm happy, look okay, to give you as long as you like to speak to [the Applicant] and maybe um, if you want to have an opportunity to - where you think that I have cut [the Applicant] off, to provide some further information in response to those questions. So is 15 minutes enough or would you …? Ms Lester: Yes please. Tribunal member: Okay. Look, as I said, I am very sorry - I did it to you as well and I think our connection is really quite bad at this end, so maybe we should've stopped and started it again, but um we'll take 15 minutes, so it's 1.58. Ms Lester: Thank you. Tribunal member: And we'll make it 2.15? Ms Lester: Thank you. Tribunal member: Okay, so the hearing is adjourned at 1.59pm. Tribunal member: The hearing is resumed at 2.16pm. Okay [the Applicant], I wanted to ask you before I asked Ms Lester if there are any particular questions or submissions. Is there anything, in light of what Ms Lester had to say - and I do apologise for cutting you off and I did apologise early, but I did continue to have a few instances where that happened. Is there anything that you would like to add after having a discussion with Ms Lester to any of the discussions that we've had during today's hearing? The "bad delay here" referred to in this exchange was a reference to apparent delays in the communications occasioned by the video-link. A little later there was also the following exchange: Tribunal member: Okay, thank you Ms Lester. In light of the concerns that you've raised about the fact that you do not believe that [the Applicant] has had a fair hearing, I am open, it's just a suggestion because that was not my intention and, I have said, I do apologise for that and I am - I had - if this was a concern I hoped you would've raised it at an earlier stage and not at the end of the hearing, so that I could've tried and - Ms Lester: No, I don't think that that's fair - Tribunal member: Well it would've assisted me um, I'm sorry - Ms Lester: You actually did - if I may just remind you, you actually did say during the hearing, at the beginning, sorry for actually cutting you off, so I think that the member is aware that on several occasions at the beginning of the hearing that you did ah cut the review applicant off. Tribunal member: Yeah, I did. I apologised for it. Yes, I'm sorry. Again I say I'm very sorry, so I'm happy to, if you want time after the hearing - if you want to listen to the hearing and provide any further information - evidence or information in response to the questions that I asked where you believe - where I cut [the Applicant] off. During this exchange there were again raised voices and the Tribunal member and the migration agent "speaking over each other". 26 After the hearing concluded, the migration agent made the following request for a "re-hearing": I am instructed by [the Applicant] to request on her behalf a re-hearing constituted by a new Member. She makes this request on the basis that she was not provided with a fair hearing as required by your policies and guidelines. It is apparent from listening to the recording that on numerous occasions the Member questioned the review applicant without allowing her an opportunity to respond. The Member advised that this was due to the delay in timing with the video conference, but it is clear from listening to the recording this is not the case - the Member would ask the next questions based on what the review applicant was saying at the time (without allowing her to finish). The review applicant's representative put the Member on notice of the failure to provide a fair hearing to the review applicant during the hearing. We request a hearing be scheduled before another Member as the review applicant does not believe she will be given a fair and reasonable opportunity based on her complaint against this Member. It is further noted for the record that no requests have been made by the Tribunal to comment on any adverse information pursuant to s 424A of the Migration Act. 27 Any analysis as to whether or not an administrative hearing is vitiated by reason of a reasonable apprehension of bias is necessarily an analysis to be undertaken by reference to the statutory context in which the hearing is conducted and the facts and circumstances of each individual case. 28 In concluding that the present hearing was not vitiated by a reasonable apprehension of bias, reliance has been placed upon: the inquisitorial functions discharged by the Tribunal and the statutory prescription as to the content of natural justice in Div 4 of Pt 7 of the Migration Act; and the difficulties occasioned by apparent deficiencies in the video-link used throughout the hearing, those deficiencies leading (at least in part) to the Tribunal member asking further questions before a prior answer had been completed. Those deficiencies may potentially influence whether a claimant has been afforded a fair opportunity to be heard but do not of themselves indicate whether a Tribunal member has maintained throughout a mind "open to persuasion". Reliance has also been placed upon: the limited number of occasions when the Applicant was interrupted in the giving of her answers to questions - albeit those occasions occurring throughout the hearing; the opportunity extended to the Applicant after the hearing had concluded to file further submissions if she wished to do so; the fact that no submission was made subsequent to the hearing concluding seeking to supplement any evidence which had previously been given or to supplement the answers provided in any instance where the Tribunal member asked a further question without allowing a prior answer to be completed; and the otherwise courteous manner in which the hearing was conducted. To the extent that the exchange towards the conclusion of the hearing may be characterised as a recognition on the part of the Tribunal member that such difficulties that had been encountered throughout the hearing properly warranted a further apology from the Tribunal member and (perhaps) a recognition on the part of the Tribunal member that the hearing could have been conducted differently: that exchange was but an isolated instance that has to be considered in the context of the overall fairness of the hearing itself. It is also concluded that reliance can be placed upon: the fact that no reference was made in the request for a "re-hearing" to any perception as to bias arising from the "body language" of the Tribunal member or the allegation that the member throughout the hearing manifested an unwillingness to listen to the claims being advanced for consideration by "rolling her eyes". Nor were such allegations, advanced before the Federal Circuit Court. Both allegations were raised for the first time before this Court. 29 No conclusion is open, it is respectfully concluded, other than that the Applicant was afforded a proper hearing, as guaranteed by s 425 of the Migration Act, and a hearing free from any reasonable apprehension of bias. The informed bystander, it is concluded, would satisfactorily reach a conclusion that the Applicant had been afforded a hearing at which the Tribunal member was "open to persuasion".

Ground 3 - an intention to afford a fair hearing 30 Ground 3 is curiously expressed. It provides as follows: The learned Judge erred in law in finding that the Tribunal Member's intention (to provide a fair hearing) was determinative of the question whether the tribunal afforded the Appellant a hearing as required. The Ground is understood to be directed to an argument that the primary Judge erred in failing to appreciate that the test to be applied was whether there was a reasonable apprehension of bias as opposed to whether the Tribunal set out to provide a fair hearing. 31 So understood, the Ground is without substance. 32 There can be no doubting the fact that the primary Judge correctly understood the test to be applied. The primary Judge discussed the authorities, including those drawing a distinction between inquisitorial proceedings (such as that being undertaken by the Tribunal in the present case) and curial proceedings and also those authorities where a reasonable apprehension of bias was said to have arisen by reason of "occasional displays of impatience and irritation, whether justified or not". 33 There is no basis for a contention that the primary Judge considered that the intention of the Tribunal member to conduct a fair hearing was determinative. 34 No appellable error is discernible in the manner in which the primary Judge undertook his analysis as to whether the Tribunal hearing was vitiated by reason of an apprehension of bias.

Ground 4 - a failure to consider an essential integer 35 Ground 4 is understood to be directed to the argument that the Tribunal had failed to consider the Applicant's claim - or at least an aspect of that claim - to refugee status. The Ground is expressed as follows: The learned Judge erred in law in finding that the Tribunal had not failed to consider an essential integer of the Appellant's refugee claims. Some uncertainty arises by reason of the failure to identify the "essential integer" of the claim which it is said has not been considered. It is nevertheless understood that the argument is that the Tribunal failed to consider the Applicant's "refugee-hood based on her ethnicity, religion and gender". 36 The argument is without substance. 37 There can be no doubting either the fact that: the Applicant claimed to fear persecution on a number of bases, including her status as an uncircumcised Kikuyu woman who was Christian, and being an activist against the Mungiki; and those claims were considered by the Tribunal. 38 The claims as made by the Applicant were considered but largely rejected by the Tribunal. The claims were variously rejected by the Tribunal upon the basis that they were (for example) implausible or inconsistent with other information available to the Tribunal. At one point in its reasons, the Tribunal thus found as follows: [23] On the basis of the above findings, the Tribunal does not accept that the applicant spoke out against the Mungiki and their customs, traditions and practices, including FGM, or that she was a political or religious activist. The Tribunal does not accept that the applicant has come to the attention of the Mungiki in the past or that she has been harassed, intimidated and threatened, including an attempted kidnap as stated in the applicant's adviser's submission, by the Mungiki either because she is a Kikuyu woman, a Kikuyu woman who has not been circumcised, or because of an implied political opinion based on her alleged activities openly speaking out against the Mungiki and FGM. The Tribunal does not accept that the applicant was seen as enemy number one by Mungiki hard core members because of her alleged political and religious activities in opposition to the Mungiki in her village or that she was warned never to return to Kenya or she would be dealt with. The Tribunal therefore does not accept that the applicant faces a real chance of persecution now or in the reasonably foreseeable future from Mungiki thugs, tribal elders, the police and powerful rich men who support Mungiki for these reasons. Each of the findings as made by the Tribunal was a finding open to it upon the materials then available. And, to the extent that those findings were based upon an assessment of the credit of the Applicant, those findings were findings "par excellence" within the domain of the Tribunal alone: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J. Neither the Federal Circuit Court (nor this Court on appeal) has any general role to review the findings of fact made by the Tribunal. 39 It is not understood that Ground 4 was intended to take issue with such basic propositions. 40 The Federal Circuit Court Judge considered and rejected a like argument: [2015] FCCA 1642 at [117] to [139]. 41 No appellable error is discernible in the reasons for decision of the primary Judge.

Ground 5 - a finding of fact not made by the Tribunal? 42 The final proposed Ground of Appeal is understood to be directed to a specific aspect of the claim made by the Applicant to refugee status. 43 Part of the claim made by the Applicant was that she feared persecution by reason of her family relationship with a Mungiki leader. Ground 5 of the Notice of Appeal contends that the "learned Judge erred in finding that the Tribunal had made a finding that the Appellant did not have any relatives amongst the Mungiki, when the tribunal made no such finding". 44 Before the Tribunal the Applicant gave an account of having relatives amongst the Mungiki. The Mungiki, on the account given by the Applicant, assumed relevance by reason of the fact (inter alia) that it was a ritual of the Mungiki to engage in female genital mutilation. On the Applicant's account, she told the Tribunal that her cousin was "one of the Mungiki leaders apparently". Although the Tribunal expressed reservation with respect to the Applicant belatedly raising the involvement of her cousin, one exchange between the Applicant and the Tribunal as to his involvement was as follows: [the Applicant]: Yeah, he's one of the Mungiki leaders apparently. I did not mention that in my other submission, because I already mentioned to my other lawyer about him and I told him that he was actually my cousin and he said 'you can't (indecipherable)'. So he's one of the Mungiki leaders. And to be recognised as a leader, you have to have done a lot of bloodshed to get into that position. Tribunal member: How do you know he's a Mungiki leader? [the Applicant]: Because his brother came and told my grandmother and also he uses the public - the cars - the Mungiki cars for the leaders, he drives those cars. And also his brother told us that he's one of the leaders. Tribunal member: So when did you find out? [the Applicant]: And also because he - sorry? Tribunal member: When did you find this out? That he was a Mungiki leader. [the Applicant]: We found out during the election period, because you could see that he was giving - at that time they didn't care whether you knew that they were Mungiki or not. He always gave direction to others, including when they collect money from the public transport, they always go and report to him. Tribunal member: Do you know how long he's been associated with the Mungiki? There was further questioning about the cousin. 45 In resolving this part of the Applicant's claims, the Tribunal did not accept that the cousin was "a Mungiki leader or associated with the Mungiki." The Tribunal's reasons (at paras [24] and [25]) address the claims to fear persecution by reason of her relationship with a Mungiki leader and conclude as follows: 26. Based on the above, the Tribunal does not accept that the applicant's life is in danger because of her alleged familial relationship with a Mungiki leader or that she is a target because [Relative A] is allegedly a Mungiki leader or member. The primary Judge extracted this paragraph of the Tribunal's reasons: [2015] FCCA 1642 at [133]. 46 There is no substance in the final Ground of Appeal. There is no substance in the contention sought to be raised in Ground 5. The claim made by the Applicant that she had a cousin who was a "Mungiki leader" and would thereby herself become a target was considered and resolved by the Tribunal. The primary Judge made no error in rejecting a like argument: [2015] FCCA 1642 at [132] to [139].

CONCLUSIONs 47 The central importance cannot be underestimated of ensuring that a hearing before the Tribunal is conducted in a procedurally fair manner. That is when a claimant has the opportunity of advancing for consideration before an independent decision-maker an account of the claims being made. Findings of fact will then be made against which the law is to be applied. Unless that hearing is conducted in a procedurally fair manner and in accordance with the strictures imposed by the Migration Act, and findings of fact made, a claimant will have no real chance of laying the factual foundation upon which rights will be determined. 48 It is for this reason that this Court, when called upon to do so, may be expected carefully to scrutinise the manner in which a hearing has been conducted. Although even an occasional outburst of irritation or incredulity should be discouraged, this Court should nevertheless recognise the fact that Tribunal members are not Judges and are conducting an administrative hearing very different from the standards exacted of superior Courts. A Tribunal hearing is an administrative hearing which at times may only be expected to be testing upon the members themselves and the claimants that come before it. It is to be recalled that claimants who seek a protection visa are sometimes "engaged in an often desperate battle for freedom, if not life itself": Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. Just as the reasons provided by an administrative decision-maker should not normally be scrutinised with an "eye keenly attuned to the perception of error" where none truly exists (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ), the Court should not scrutinise the procedures followed by an administrative decision-maker with an "eye keenly attuned" to the perception of procedural irregularity where a hearing has been conducted in a procedurally fair manner overall. But the need to ensure procedural fairness, quite separate from any concern as to whether procedural unfairness evidences a reasonable apprehension of bias, nevertheless remains a matter to be kept under constant watch. There may well be occasions where procedural unfairness emerges from the manner in which the hearing has been conducted as opposed to procedural unfairness founded in a reasonable apprehension of bias. 49 Although it has been concluded that an extension of time should be granted within which to file the Draft Notice of Appeal from the decision of the Federal Circuit Court, it has further been concluded that none of the Grounds of Appeal have been made out. Contrary to the oral submissions of the Applicant, the Tribunal member did not manifest an unwillingness to entertain her claims on their merits. In the absence of a video recording of the hearing, it is not possible to give any real content to the Applicant's submission that the "body language" of the Tribunal member evidenced an unwillingness to entertain her claims. Constrained by the absence of a video recording, and limited to a mere reading of the transcript and a review of the recording of the hearing, no basis emerges to question the overall fairness of the hearing afforded to the Applicant. No appellable error is discernible in the reasons for decision of the Federal Circuit Court Judge. 50 The appeal is to be dismissed. There is no reason why costs should not follow the event.

The name of the Second Respondent is changed to Administrative Appeals Tribunal. 2. The Application for an extension of time filed on 8 July 2015 is granted. 3. The appeal is dismissed. 4. The Applicant is to pay the costs of the First Respondent. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Besanko and Flick.

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (27)

Cited By (29)