The relevance of the second Tribunal decision to the apprehended bias inquiry
123 Both the appellant and the Minister invited the Court to consider the terms of the second Tribunal decision in deciding the question of reasonable apprehension of bias, including by way of a comparison of paragraphs in the second Tribunal decision which are the same as paragraphs in the first decision.
124 The Minister submitted that the terms of the second Tribunal decision showed that the member approached the matter afresh and properly assessed new claims and evidence. He pointed to the fact that in the second decision Ms Muling changed her view about the reasonableness of the appellant relocating to Karachi, which the Minister argued showed that Ms Muling had a mind open to persuasion. The Minister accepted that the Court should exercise caution in considering the second Tribunal decision, but argued that the decision reveals no evidence of prejudgment, hostility, failure to enquire into critical information, unalterable commitment to a conclusion, a closed mind, dishonesty, arbitrariness or capriciousness on the part of the Tribunal member.
125 There is little merit in the Minister's submission in this regard. In my view, in deciding the question of reasonable apprehension of bias little significance can be given to the terms of the second Tribunal decision.
126 I say this, first, because in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 ("Michael Wilson") the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) cautioned against having regard to the terms of the decision in deciding whether a reasonable apprehension of bias might earlier have arisen. The majority said (at [32]-[33]):
As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."
Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair‑minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
(Emphasis added.)
127 The majority went on to say (at [67]):
…An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
(Emphasis added.)
128 The Minister sought to distinguish the decision in Michael Wilson on the grounds that it involved court proceedings, and that the allegation of apprehended bias was made in the context of a judge determining ex parte interlocutory hearings and then conducting the trial of a matter. In my view, these matters do not relevantly distinguish the case. The thrust of the Minister's contention was that it is inappropriate to transpose the approach taken by the majority in Michael Wilson to the context of administrative decision-making. I do not accept this and I consider the reasoning in Michael Wilson to be equally applicable in the context of administrative decision-making.
129 I note that in SZSMD v Minister for Immigration and Border Protection [2015] FCA 202 Rares J implicitly accepted that the decision in Michael Wilson applied in such a context. In that case the appellant submitted that the Tribunal's factual and credibility findings against her on the second occasion were relevant to the determination of her allegation of a reasonable apprehension of bias. His Honour noted (at [31]) the view of the primary judge that:
To the extent that the Court is being invited to examine the contents of the Decision Record, it is unhelpful to look to the reasons of a decision-maker to confirm an impression of bias because of necessity at the time that those reasons are given, the decision-maker has made [up] their mind. The Court's attention was drawn to the High Court's decision in Michael Wilson…"
130 His Honour saw no error in the primary judge's approach, and said (at [44]):
The appellant's argument seeks to look ex post facto at the way in which the Tribunal explained why her evidence did not persuade it or was not found by it to be believable on a number of points. At the time a decision maker articulates reasons for a decision, he or she will have made up his or her mind about the subject matter that requires resolution. Necessarily, at that point, the person will have formed a view and, in a case like the present, will be endeavouring to explain the findings of fact and reasoning process by which he or she came to hold that view. In that context, it must be expected that the view will have all of the appearance of being concluded.
131 I consider the learned primary judge erred (at [60]-[61]) in the significance her Honour attributed to the fact that, in the second Tribunal decision, Ms Muling considered later material and altered her view in relation to whether it was reasonable for the appellant to relocate to Karachi. The second decision reveals Ms Muling's concluded view of the evidence and claims in the remitted application, as opposed to revealing matters anterior to those conclusions which might be said to give rise to a reasonable apprehension of bias. Those matters essentially go to whether Ms Muling actually prejudged the remitted application, rather than what a fair-minded observer might have reasonably apprehended prior to and during the second Tribunal hearing.
132 Second, even if I consider the terms of the second Tribunal decision, as the parties urged, it does not assist the Minister's case.
133 On remittal the substance of the appellant's claim was the same as on the first occasion, although by submissions, country information and a small amount of further evidence he sought to address the finding that it was reasonable for him to relocate to a large city, such as Karachi or Lahore. I accept that Ms Muling considered the appellant's new submissions, country information and evidence going to the issue of relocation and that she altered her view that it would be reasonable for the appellant to relocate to Karachi, and instead proposed Lahore.
134 I accept that this shows the member's preparedness to reach a different view on that matter, but it is an overreach for the Minister to contend that it demonstrates that she had a mind open to persuasion on the appellant's credibility. In any case, as the High Court explained in Michael Wilson, it is not logically germane to the apprehended bias inquiry.
135 It is significant that some paragraphs of the second Tribunal decision were copied from paragraphs in the first decision. The appellant filed a table comparing paragraphs in the first Tribunal decision with paragraphs in the second Tribunal decision which it said were identical or substantially similar, and the Minister filed submissions containing a marked-up side-by-side comparison of the paragraphs. Both sides plainly considered their approach better advanced the case as to whether Ms Muling did, or did not, consider the issues afresh in the second Tribunal hearing.
136 The Minister contended, and I accept, that many of the findings in the second Tribunal decision are favourable to the appellant, the majority of the paragraphs in the Tribunal's respective decisions are different, the second Tribunal decision is shorter, the findings in the second Tribunal decision in relation to the issue of relocation to Karachi are different, and the unfavourable findings in the second decision are findings which were open to it on the material before it. The differences between the two decision largely arise from the fact that in the second decision, the Tribunal considered the complementary protection ground, accepted that it would not be reasonable for the appellant to relocate to Karachi (while maintaining that it would be reasonable for him to relocate to Lahore), and set out and dealt with material provided by the appellant after the first decision.
137 The similarities between the decisions to which my attention was drawn include (but are not limited to):
(a) paragraphs 20-27 of the first Tribunal decision, which set out the appellant's background, claims and statements, and psychologist's reports, are reproduced by paragraphs 22-28 of the second decision with only minor changes;
(b) paragraph 82 of the first Tribunal decision, which stated the appellant is a Pakistani national for the purposes of assessing his claim, is identical to paragraph 38 of the second decision;
(c) paragraph 83 of the first decision, in which the Tribunal accepted that the appellant was born and lived in Bajaur Agency, is identical to paragraph 39 of the second decision;
(d) paragraph 85 of the first decision, in which the Tribunal found that the appellant gave generally consistent evidence regarding his experiences, that he may have come to the attention of the Taliban in his area, that the Taliban came to his home in April 2008 and ordered him to leave his job and grow a beard and that he "may" have been ordered to stop singing and engaging in sporting activities, but did not accept that the Taliban held any interest in him because he was well-educated. This was reproduced by paragraph 40 of the second Tribunal decision although with minor changes of expression (e.g. substituting "position" for "role") and insertions and deletions of some words which did not alter its substance;
(e) paragraph 99 of the first decision, in which the Tribunal did not accept that the appellant would be tracked or pursued by the Taliban outside of the Bajaur area because of any combination of the factors of being a Pashtun, singer, sportsman, and returnee from a Western country. This was reproduced in paragraph 66 of the second decision with some changes to reflect the Tribunal's changed view in relation to relocation to Karachi, with some additional findings in relation to Lahore and in relation to some of the appellant's evidence since the first hearing; and
(f) paragraph 100 of the first decision, in which the Tribunal discussed the appellant's medical evidence, and found that his major depressive disorder would not impact him adversely upon relocation to Karachi or Lahore to such a degree that it would be unreasonable for him to do so. Paragraph 67 of the second decision contains substantially the same reasoning, although it omitted Karachi from consideration, had some changed expressions and did not refer to the evidence of the appellant's doctor in Pakistan.
138 In my view there is no material distinction between word-for-word copying, and just moving around words or changing words while leaving the substance intact: MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133 ("MZZZW") at 162 [28] (Tracey, Murphy and Mortimer JJ). Having said this, I have no real concern about the copying of some of the paragraphs to which I have referred. For example, paragraphs 20-27 of the first Tribunal decision which set out the appellant's background, claims and statements and psychologist's reports were just summaries of or direct quotes from the appellant's materials. Nor do I have any concern about the copying of paragraphs 82-83.
139 However, it is unnecessary to undertake a paragraph by paragraph analysis. Were it appropriate having regard to the decision in Michael Wilson or otherwise necessary to weigh the significant similarities in the decisions, I would have particular regard to paragraphs 86 and 87 of the first Tribunal decision. In those paragraphs Ms Muling accepted that the appellant stopped work and grew a beard after being visited by the Taliban in April 2008, and despite "serious doubts" accepted that he received a follow-up phone threat in August 2008 while living with his brother in Peshawar, but did not accept that two Islamic militants went to the appellant's home in January 2010 and made threats against him.
140 Ms Muling replicated these findings in paragraphs 41 and 43 of the second Tribunal decision with only minor variations in expression and with the further comment that it was "implausible" that the January 2010 incident occurred when the appellant had not referred to it in a statement submitted since the first hearing. The findings in paragraphs 41 and 43 of the second decision were clearly copied from the first decision. This is confirmed by the fact that the second decision repeated a typographical error in the first decision (where it referred to the incident being in "June 2010" rather than "January 2010").
141 As I have said, I consider the Tribunal's rejection of the appellant's evidence in this regard was significant to the rejection of his claim. If accepted by the Tribunal it would have assisted his claim that the Taliban had a continued interest in him, that the Taliban's interest in him was not as low as the Tribunal suggested, and that even if he relocated to a large city such as Karachi or Lahore he faced a real risk of being killed by them.
142 It is also significant that in paragraphs 41 and 43 of the second Tribunal decision Ms Muling essentially copied paragraphs 86 and 87 of the first decision, in which she accepted the credibility of the appellant's evidence in relation to other important aspects of his claim.
143 The copying of adverse and positive credibility findings from the first decision would tend to show that Ms Muling did not consider the issue of the appellant's credibility afresh in the remitted application. In saying this I adopt the meaning of "afresh" in MZZZW at 171 [60], where the Full Court said:
…That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion "afresh" is simply a shorthand way of saying "with fresh eyes", and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.
144 I accept that, in the second decision, Ms Muling gave consideration to the credibility of the appellant's new evidence. As I have said, she did not accept the appellant's evidence that:
(a) he performed at weddings, finding that the appellant fabricated this aspect of his claims in an effort to "bolster his profile" (at 57);
(b) he had sung on two or three occasions at welcome or farewell parties at university, that he was involved in organising the music program for such events, or that people had recorded his singing and that he recorded his songs on cassettes (at 58);
(c) he had posted poetry on Facebook, finding that the appellant fabricated this evidence with the sole reason of strengthening his claims (at 61); or
(d) if he resumed teaching in Lahore his name would be circulated by his students among 300 to 400 homes in a week, finding that evidence "implausible".
However, while those findings were open, in the circumstances it is impossible to know whether they were the result of fresh consideration by a mind open to persuasion, or just reflective of Ms Muling's previous findings regarding the appellant's credibility. They do not show that Ms Muling considered the question of the appellant's credibility and claims afresh.