MZZLO v Minister for Immigration and Border Protection

Federal Court of Australia|2015-08-28|Before: Mortimer J

THE APPLICANT'S CLAIMS, THE TRIBUNAL DECISION AND THE Federal Circuit Court REVIEW 12 I deal with these matters briefly as in my opinion there is a sufficient basis to extend time and to allow the applicant to have his appeal argued on the merits, with the assistance of legal representation. In those circumstances it is appropriate I express my reasons for granting the extension of time without unduly trespassing on the merits of any appeal as brought pursuant to the grant of an extension of time. 13 The applicant was barely 18 years old when he appeared before the Tribunal. He had arrived in Australia as an unaccompanied minor, at age 17, and had spent some considerable time in remote detention before being released into community detention. 14 Before the delegate and then before the Tribunal, he was represented by experienced migration agents and lawyers, under the then Immigration Advice and Application Assistance Scheme operated by the Federal Government. His claims before the delegate and the Tribunal were fairly summarised in the Minister's submissions on the application: The applicant claimed that the Sri Lankan army had a camp near where he lived with his family and that, because he was a young Tamil, he was often assaulted by the army and forced to go to their camp to carry out work for them. The applicant claimed that the Sri Lankan Army often rounded up Tamils in the area, including him, and they were forced to demonstrate and would then be subjected to treatment from the local Sinhalese community who the applicant claimed would abuse the Tamils, throw stones at them, and harm them. The applicant also claimed that a 'Grease Man' had climbed on to his family home in August 2011, causing him to fear for the safety of his mother and sisters, and for his own safety in trying to defend them. Since arriving in Australia, the applicant claimed that members of the Sri Lankan army had been to his family's house to look for him, and had beat his father who told them that his son was studying in Colombo. 15 The applicant was legally represented before the Federal Circuit Court, although he is now self-represented. That change of circumstances appears to be a common feature of many proceedings as between the Federal Circuit Court and this Court. Six grounds of review were argued on his behalf before the Federal Circuit Court, and the Federal Circuit Court determined that none of those grounds was made out, and dismissed the application for judicial review accordingly. 16 I deal below with the grounds as they were argued before the Federal Circuit Court. Given the applicant is now unrepresented, I consider it is appropriate to examine those grounds, and to see whether it might be said there are any prospects on an appeal from the Federal Circuit Court in relation to its consideration of those six grounds.

CONSIDERATION 17 As to the applicant's claim made orally before me that he did not have enough time at the review hearing, the review hearing lasted more than three hours. As the Minister's counsel pointed out in submissions, the Tribunal gave the applicant an opportunity to consult with his representative and provide further information to the Tribunal after the hearing, and he took that opportunity. I do not consider this complaint adds anything to the prospects of appeal in this case. 18 The Tribunal made some robust findings adverse to the applicant's credibility. The applicant had made a statutory declaration for the purposes of the Tribunal's review and the Tribunal ultimately gave the contents of the document little weight. The reasons for the Tribunal taking that course became key components in the judicial review before the Federal Circuit Court. 19 I turn now to the six grounds of review as argued before the Federal Circuit Court. 20 The first ground involved a claim of apprehended bias, and I will return to it below. In my opinion it is arguable the Federal Circuit Court erred in the way it dealt with this ground. 21 The second ground raised the quality of interpreting before the Tribunal, but as articulated before the Federal Circuit Court it was unparticularised and unsupported by evidence, other than the short affidavit to which I shall refer. As I have noted above the applicant also raised the quality of interpreting in his oral submissions before this Court. Before the Federal Circuit Court, the applicant filed a short affidavit on the issue, and he repeated the substance of that affidavit in his submissions before this Court. He deposed: The person who interpreted when I appeared before the Refugee Review Tribunal appeared to be an Indian Tamil speaker. I had great difficulty in understanding him and communicating with him. I believe he may have interpreted incorrectly some of the answers I gave to the tribunal for this reason. 22 I see no error in the way the Federal Circuit Court dealt with this ground as it was put to it. 23 In response to the applicant's oral submissions in this Court, the Minister submitted that there was insufficient evidence to demonstrate that the interpreting was so poor that he did not have a fair hearing, or that the review miscarried. As the Federal Circuit Court noted (at [33]) the absence of a full transcript made the allegations about poor interpreting difficult to assess. The Minister also submitted that there no issues raised about the interpreting during or after the Tribunal hearing, although other issues were raised by letter from the applicant's representative after the hearing. I accept the Minister's submissions on this issue. 24 The third ground before the Federal Circuit Court concerned the failure of the Tribunal to approach the applicant's claim on the basis that he showed symptoms of post-traumatic stress disorder. The Federal Circuit Court considered the contentions on this ground fully, noting the absence of any evidence to support the contention, and the absence of any submission by the applicant's experienced representatives to the Tribunal that he had, or might have, such a condition. I see no error in the way the Federal Circuit Court approached this ground. The fourth ground was an illogicality ground, which was dealt with without apparent error by the Federal Circuit Court. 25 The fifth and sixth grounds sought to persuade the Federal Circuit Court that the standard of persuasion set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 should be applied by a decision-maker such as the Tribunal before concluding that a person had lied in his or her evidence which was, it was submitted, the effect of the Tribunal's findings on this review. The Federal Circuit Court first dealt with these grounds by reference to the application of the "real chance" test in Art 1A, as well as the different standard in Art 1F, of the 1951 Refugees Convention by reference to the High Court's decision in FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1. Whether or not that really captured the point in these grounds can be put to one side because the Federal Circuit Court did refer to the clearly relevant decision of SCAN v Minister for Immigration [2002] FMCA 129. In that case, the Federal Magistrates Court (as it then was) held that the standard of persuasion to which the principle in Briginshaw refers is confined to adversarial proceedings, where there is a legal burden of proof imposed on one party. 26 During argument in this Court, I sought assistance from the Minister's counsel about any other relevant decisions on this issue and granted the Minister leave to identify any other such decisions after the hearing. 27 Pursuant to that leave, the Minister drew the Court's attention to two decisions: Ratnayake v Minister for Immigration and Ethnic Affairs [1997] FCA 482; 74 FCR 542, and WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103; 151 FCR 413. Neither of these decisions takes the matter any further, in my opinion. 28 The point being made in the fifth and sixth grounds was, as I understand it, that the Tribunal should not find a person is lying without a substantial basis for that finding. Whether or not it is expressed by reference to what was said by Dixon J in Briginshaw, that proposition can scarcely be doubted where a decision-maker has, as the Tribunal does, an obligation to make its decision based on rational and probative material. If this were the only issue on this application, I may not have been persuaded there was sufficient merit in this matter to justify an extension of time. However, it may be that on proper analysis by a legal representative, there is some connection between these contentions and the first ground. That is a matter for the consideration of those who may volunteer to represent the applicant, if such volunteers can be secured.

The apprehended bias claim 29 The principal basis on which I consider an appeal from the Federal Circuit Court may have prospects of success relates to the first ground of review before the Federal Circuit Court. That concerned an allegation of apprehended bias in the Tribunal, stemming from the Member's questioning of the applicant during the hearing, the Member's statements about the applicant's representative and the consequent effect on the way the Tribunal dealt with the applicant's statutory declaration made specifically for the Tribunal's review. Related to these issues was the failure of the Tribunal to reconstitute the review to another Member upon the formal complaint by the applicant's representative. 30 This matter is dealt with by the Federal Circuit Court at [9]-[28] of its reasons. It is unnecessary to reproduce them here. Parts of the transcript of the review hearing before the Tribunal are there set out. In evidence on this application was a letter of complaint from the applicant's representative. That letter refers also to a conversation apparently initiated by the Member with the representative after the Member had completed the review hearing and the recording of the review hearing ceased. The applicant's representative, it appears, took detailed notes of that conversation. The conversation concerned the Member's comments during the hearing about the way the applicant's statutory declaration had been produced, and the Member's views about the representative's conduct. 31 The statutory declaration made by the applicant for the purposes of the review hearing and which was the subject of criticism by the Tribunal Member was in evidence on this application, as it had been before the Federal Circuit Court. The statutory declaration contains detailed evidence of what the applicant claims occurred to him in Sri Lanka and why, building on the reasons for rejection of his claims by the Minister's delegate. That approach is not only unremarkable but, one would imagine, appropriate for a merits review hearing. 32 During the review hearing itself, and in reliance on one paragraph in the statutory declaration, the Member described "large portions" of the statutory declaration as "confections". The Member said (as recorded in the representative's letter to the Principal Member of the Tribunal after the hearing): Member: You've put your own words in a statutory declaration made by the applicant. Representative: Um I've read that back to him and he's agreed that those are his sentiments, that he wishes to provide more information-[INTERRUPTED] Member: You're on very dangerous ground. You're on very dangerous ground. This is a statutory declaration. I've raised it with the applicant because I'm required to, but when I see what in effect, what are in effect are submissions, put in an applicant's voice, that gives rise to two concerns. One is that you have sought to mislead the Tribunal and might be grounds for a report to OMARA. It might also be grounds for a report to the Legal Services Board for professional misconduct. So I would urge you - I will not do either of those things, but I would urge you in the future to be very careful in how you present an applicant's evidence. It's not something I hold against [the applicant] because it's quite clear to me that large portions of that Statutory Declaration are confections of your own. 33 In my opinion, it is arguable that the exchange to which I have referred at [32] above indicates the Member determined not to believe anything stated by the applicant in that statutory declaration, and more generally, would not believe anything the applicant said which was critical to the success of his claims. That is not to say that the Tribunal failed to consider the contents of the statutory declaration - as the Minister correctly submitted the Tribunal refers to its contents in its reasons. However in my opinion it is arguable that its reasons (see especially [50]-[52]) could be said to disclose a discounting of the statutory declaration where it was not otherwise corroborated, which is essentially what the Tribunal is recorded as saying to the applicant during the hearing: But I really give any material in that document that you haven't confirmed with me today, little weight. 34 In other words, one question is whether from the time of the hearing the Tribunal closed its mind to the applicant's credibility on any factual issue on which the success of his claims depended. Another question is whether, from that moment, the Tribunal too readily and without any or sufficient probative evidence, was prepared to find the applicant was lying on his oath. Whether that is the correct way to understand what occurred, and whether the threshold for apprehended bias is met, or whether those events should be characterised as disclosing another kind of jurisdictional error, or as disclosing no jurisdictional error at all, are matters for full argument on an appeal. 35 The Minister correctly referred to the observations of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; 131 FCR 102 at [81] that "[o]ccasional displays of impatience and irritation" might not amount to disqualifying apprehended bias. That is of course correct - these matters are all context-dependent and without the full transcript, and possibly the recording of the Tribunal review hearing itself, it is not possible to reach a concluded view on the correct characterisation of what occurred, and this is in any event a matter for the appeal. 36 Again, the Minister is correct to submit that the onus of establishing apprehended bias rests with the applicant: see VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [42]-[45]. Especially at the stage of an application for an extension of time in which to appeal where there is a short delay of six days, that proposition must be sensibly applied where the applicant is an unrepresented asylum seeker, so as to ensure justice is done, and seen to be done, by this Court, in reviewing the lawfulness of the Tribunal's decision-making. 37 The applicable principles concerning apprehended bias in an administrative decision-maker are set out in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425, as referred to by the Federal Circuit Court at [19] of its decision. I accept that an allegation of this kind must be "firmly established", but that is a matter in my opinion for considered argument on appeal. 38 Here it is arguable that apprehension was created during the hearing by what the Member said, and then confirmed by what the Member said in his reasons. The fact of an unrecorded post-review hearing conversation initiated by the Member is a matter which may also be relevant to the legal characterisation of what occurred. These matters should be fully explored when the applicant has the benefit of legal representation, and an authorised transcript of the hearing is available for the Court's consideration.

Conclusion 39 I am satisfied there are sufficient prospects on an appeal to justify the grant of an extension of time, and there will be orders accordingly. The matter will then be programmed for listing as an appeal subject to the directions of the Chief Justice. 40 A referral for legal advice and representation will be made for the applicant pursuant to r 4.12 of the Federal Court Rules. 41 The Minister sought costs of the application if an extension of time were granted. I do not consider that to be an appropriate order. The delay was very short. What occurred in the Tribunal was unusual, and the Minister was on notice through the way the matter was argued in the Federal Circuit Court that there were quite appropriate submissions which could be made about whether what occurred meant the Tribunal had exceeded its jurisdiction. The need for the hearing and argument on the extension of time was occasioned by the Minister's decision to oppose the application. That decision may ultimately be established to be well founded. If so, the Minister should have his costs of the application considered as part of the exercise of the costs discretion on the appeal itself, and an order will be made ensuring that can occur. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Federal Court Rules 2011(Cth)rr 4.12, 36.03(a)

Procedural History 2 The Federal Circuit Court delivered its decision and made orders on 19 March 2015. Pursuant to r 36.03(a) of the Federal Court Rules 2011 (Cth), the applicant needed to file his appeal to this Court by 9 April 2015. 3 The applicant did not file his application for an extension of time until 15 April 2015. His appeal would be six days out of time. 4 A draft notice of appeal was also lodged on 15 April 2015. It is clear that the applicant lodged the application himself, but it is also clear that he has been given what seem to be "standard form" paragraphs to insert as proposed grounds of appeal. They state: 1. That there is a jurisdictional error in the Federal Circuit Court Decision. 2. The reasons provided by the second Respondent to the first Respondent in Support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 5 In his affidavit in support of his extension of time application, the applicant deposes that "I was unaware of my legal options, after advice from refugee specific organisations they informed me of options." In his application for an extension of time, the applicant also includes the following grounds for the application: 1. Doesn't have legal representation. 2. Limited English. Financially disadvantaged because I have no work rights. It took time for me to find someone to help me understand available options. 6 At the hearing, the applicant said that he didn't know he could come to this Court, and he came to know through friends. He said it was about a week after the 21 days had expired when he came to know. He stated that he received some help from an institution called the Edmund Rice Centre, but that the lady there was busy and it took a little while. I note the Edmund Rice Centre is the organisation which, according to the Tribunal's reasons, assisted the applicant in putting together some country information to submit to the Tribunal. 7 None of this information was in his affidavit in support of his application to extend time, but given his circumstances I am prepared to accept what he said in court today. 8 When asked what he wished to say was wrong with the Tribunal decision and the Federal Circuit Court decision, he referred to the fact that the interpreter was an Indian Tamil interpreter. He contended that he did not know he could ask to change interpreters. He described the problem as being that there were a lot of differences, in the sense that he couldn't understand some of the things the Indian Tamil interpreter was saying and he believed the interpreter may have misinterpreted some of the things he tried to tell the Tribunal. 9 The applicant also said he felt he didn't have enough time at the Tribunal's review hearing, and didn't know how to describe what had happened to him, especially since he had been in detention, then in community detention and still under restrictions, all the time up to and including the review hearing before the Tribunal. He stated that he was released on a bridging visa in about June 2013, after the Tribunal rejected his application. 10 Although in accordance with applicable principles, the Court looks to the explanation for the delay and any prejudice that might be suffered by other parties (see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344), in applications for judicial review in respect of migration decisions, if there is merit in a ground of review, substantial injustice to a party in refusing leave is generally clear, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings, including exposure to detention and removal. As I have noted in other decisions, where the application in respect of which judicial review is sought is for a protection visa and the claim made is based on a fear of persecution, in my opinion especially careful consideration should be given to the question of an extension of time, because the claimed consequences for an applicant on refoulement to the country against which the claim for protection is made are of a fundamentally serious kind. That is not to suggest a different standard is applied: rather, it is to acknowledge the nature of the decision in respect of which judicial review is sought and the possible consequences for an applicant if, indeed, that decision was not made in accordance with Australian law and in a procedurally fair manner. 11 This application is one where, in my opinion, those considerations are relevant to the exercise of the discretion to extend time.

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