NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-03-19|Before: Lander JJ

the court: 1 This is an appeal from a judgment of a single judge of the Federal Court, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT"), refusing a protection visa. The ground of appeal is that there was apprehended bias on the part of the RRT. 2 The appellant is a citizen of Uganda. He arrived in Australia on a false passport on 31 December 1999, and he applied for a protection visa under the Migration Act 1958 (Cth) ("the Act") on 8 February 2000. On 16 March 2000, a Ministerial delegate refused the application. On 23 March 2000, the appellant applied to the RRT for a review of that decision. That application was dismissed on 11 January 2002, and an application was made to the primary judge for judicial review on the ground of apprehended bias on the part of the RRT. 3 The primary judge dismissed the application on the basis of the judgment of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (2002) 123 FCR 298 ("NAAV"): see NAEB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1092. The reasoning of the Full Court in NAAV was subsequently held to be in error by the High Court in Plaintiff S 157/2002 v Commonwealth [2003] HCA 2 (2003) 195 ALR 24 ("Plaintiff S 157/2002"). 4 In the present case, an appeal was taken from the judgment of the primary judge to a Full Court, which, on 27 February 2003, allowed the appeal on the basis of the subsequent High Court judgment in Plaintiff S 157/2002,and set aside the orders of the primary judge: see NAEB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 25. The Full Court was persuaded that it was more appropriate for a single judge, rather than the Full Court, to consider the transcript and tape before the RRT. Accordingly, it remitted the substantive question to the primary judge.

RRT Decision 5 The principal reason for the RRT's dismissal of the appellant's application was that the appellant was not a credible witness. Important adverse credibility findings were made against the appellant. He claimed that if returned to Uganda he would be persecuted because of his membership of a group called the "Survival of Uganda Youth Movement", which he said was a secret group which raised funds for the victims of government oppression and human right abuses, as well as promoting awareness of government abuses by displaying posters and holding meetings. The appellant claimed that, after his father's death at the hands of military personnel in 1997, the group made contact with his family, provided them with money and helped with the funeral arrangements. He claimed that, after he became a member of the group, he undertook such tasks as putting up anti-government posters, and arranging for group meetings. The relevant Convention ground claimed is persecution for a political reason or alternatively, for membership of a particular social group. 6 The RRT took the view that, in response to questions, the appellant had shown no understanding about Ugandan politics. His evidence in relation to the group's political agenda and its secret operations was perceived to be contradictory and inconsistent. In reaching this view the RRT relied upon "country information", which is information from sources, other than the appellant, about circumstances in Uganda. The appellant's claims regarding the extrajudicial execution of seventeen members of the group were found to be fabricated and implausible on the basis of country information. The appellant's evidence about the circumstances in which he arrived in Australia, and the assistance he received from a church group called Zoe Ministries International, was not accepted. The RRT found that documents produced by the appellant were fraudulent. The appellant tendered a letter purporting to come from Zoe Ministries Worldwide in Johannesburg, in the letterhead of which "Worldwide" was misspelled. The RRT member telephoned the number given in the letterhead and heard a recorded message, indicating that someone called Hilary was currently in Botswana. The appellant provided a further letter, with a different telephone number, which turned out to be a mobile number, even though an office address was given. International directory assistance had no listing for Zoe Ministries Worldwide in Johannesburg. 7 The RRT accepted that the medical and psychiatric evidence revealed signs of injuries consistent with beating and torture, and that the appellant suffered from post-traumatic stress disorder. However, the RRT did not accept that the injuries and post-traumatic stress disorder were caused by the appellant witnessing his father being murdered by members of the Uganda Security Forces, or by his being tortured while he was imprisoned, allegedly for political reasons. The RRT's reasons for decision state that, when the member was assessing the credibility of the appellant, she had borne in mind the evidence concerning his state of mind, and appreciated that this might cause him difficulty answering questions. The member referred to one specific incident where he was unable to provide information on recent political developments, and noted that even if this was due to post-traumatic stress disorder, this did not account for the deficiencies and inconsistencies in the appellant's evidence, and, on balance, did not alter the member's conclusion that he had fabricated his claims regarding the reasons for his father's death. 8 Having regard to all these considerations the member rejected the appellant's principal claims. She considered that he did not have a well-founded fear of persecution, if returned to Uganda, for a Convention reason.

judgment below 9 On the remitted hearing before the primary judge, his Honour listened to the tapes of the RRT hearing and considered the transcript. His Honour observed several immaterial omissions or errors in the transcript. He referred to the relevant authorities concerning apprehended bias, and said that the question was whether a fair-minded or reasonable observer might conclude that the decision-maker might not have brought an impartial and unprejudiced mind to the decision of the issues raised. His Honour referred to relevant passages from the judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23;(2001) 206 CLR 128 at [29], [74]-[77] and [90]. He considered that the way the hearing was conducted did not suggest any pre-judgment of the appellant's case, or prejudice against the appellant, having regard to the transcript, the tape and the detailed reasons for decision of the RRT. His Honour concluded that the appellant had fallen far short of demonstrating apprehended bias.

appellant's submissions 10 The appellant refers first to the absence of his solicitor on the day of the RRT hearing, and to the fact that, as a result, the appellant only had the benefit of an "adviser", who it is said, did not take a significant part in the proceedings. There is reference to the inadequate education and ability of the appellant to present his case. In relation to other aspects, there are references to a series of reports from persons involved in the medical, physical and psychiatric examination and treatment of the appellant for his medical condition and state of mind both prior to, and after, the hearing. These reports range over a period between May 2000 and October 2001. It is submitted for the appellant that this material must have indicated to the RRT that the appellant was unable to present his case, and that therefore, the proceedings miscarried for failure to afford him procedural fairness. 11 It is also submitted that the medical and psychiatric evidence available to the RRT, regarding the appellant's physical condition, bodily appearance and psychological state, was consistent with the appellant having been the victim of torture, and that this lent support to his claims of persecution. 12 The appellant also submits that, having regard to specific parts of the transcript of the hearing before the RRT, and to references made to the tape of that transcript, there was apprehended bias. The submissions based on the tape of the interview repeat, to a large extent, what is in the transcript, but in addition, the tape is said to indicate some "subtleties". These are not specified in detail. Counsel for the appellant makes some references to parts of the transcript that are said to indicate the appellant's difficulties with English, obvious communication difficulties, and frequent interruptions by the RRT member. The appellant claims that the RRT member was "super critical" and "super sceptical" in her approach to the appellant's case, and to the material which he advanced in support.

Reasoning on Appeal 13 In relation to the medical and psychiatric evidence, it is evident from the RRT reasons that these matters were taken into account, in support of the appellant's claims, as evidence that he been the subject of ill treatment which led to permanent physical and psychiatric damage, including post-traumatic stress disorder. Having taken this evidence into account, the RRT member had regard to what she considered to be the appellant's lack of credibility, and did not accept that the evidence indicated that the appellant's physical and psychiatric injuries were inflicted or arose for a political or other Convention reason. The RRT reached this conclusion after weighing the relevant competing evidence, and this is a question for the RRT. 14 It is apparent from the RRT reasons that the member considered whether the appellant was under a significant mental disadvantage at the hearing, which led to the appellant's serious difficulty in answering the member's questions. The member specifically referred to one instance, but considered that the appellant's condition did not account for the other serious deficiencies in his evidence, and that, on balance, it was not of sufficient weight to cause the member to accept his claims regarding the reasons for his father's death, or his political involvement in Uganda. 15 As indicated earlier, the RRT gave a number of specific instances of inconsistencies and implausible claims in respect of which it considered that the appellant was not a credible witness. 16 This Court was taken by counsel for the appellant to numerous instances in the transcript where it was claimed that there were indications of bias. These included parts of the transcript where it was said that there were interruptions, monologues and the cutting short of answers. However, on examination of these instances, we do not consider there was any conduct which could be treated either alone or cumulatively as evidence of apprehended bias. 17 On a fair reading of the transcript in its entirety, there is no indication of any prejudgment or prejudice on the part of the RRT against the case presented by the appellant or the appellant himself. Nor do we consider that the appellant was overborne by the conduct or approach of the member in the course of the hearing. On the contrary, matters which were seen as difficulties were put fairly to the appellant to give him an opportunity to deal with them. The transcript discloses a sensitive appreciation of the difficulties faced by the appellant. There was an offer of a brief adjournment in the course of the hearing to the appellant, but this offer was not taken up. Although the appellant's solicitor handling his application was not present at the RRT hearing because of an accident, the principal of the firm retained by the appellant was present as an adviser throughout the course of the hearing. It can be assumed that she was no stranger to migration law or refugee law. 18 In our view, it is significant that no affidavit was filed by the principal solicitor who was present at the RRT hearing to support any apprehension or perception of bias on the RRT's part. The transcript does not record her intervening at any point during the course of the hearing to protest, for example, that she perceived any unfairness, bias or apprehension of prejudgment or prejudice. Nor was there any complaint about the way the hearing was conducted. This indicates that there was no apprehension of bias at the time. The RRT member allowed further submissions to be made over a period of many months after the hearing without any restriction on the content of such submissions. Two further written submissions were in fact made. Neither the transcript nor the evidence disclose any basis for claiming that the mind of the RRT member was closed, or that the member was prejudiced in any way. In this case, we see none of the hallmarks which could be associated with a case of apprehended bias. The indications point to a sensitive and fair approach to the hearing consistent with the quasi-inquisitorial role of the member. 19 We appreciate the assistance given to the Court by both counsel and particularly by counsel who appeared pro bono for the appellant. This enabled the Court to better appreciate the nature of the case for the appellant. 20 We have considered the detailed submissions for the appellant, together with the RRT's reasons for decision, and the transcript of the proceedings before the RRT. We are not satisfied that any reviewable error of law or principle is disclosed. There is no substance in the claim of apprehended bias in any of the particulars raised. Nor do we consider that there is any error of law disclosed in the reasoning of either the primary judge, or the RRT, in relation to its legal or factual findings. Accordingly, this appeal is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Tamberlin & Lander.

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