SZQFU v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to appeal against a decision of a Federal Magistrate. 2 The applicant is seeking to extend the period of time in which to bring the appeal by 53 days. Counsel for the first respondent (the Minister) has said that the Minister does not take issue with the fact that the proposed appeal will have been brought 53 days late, or with, what he refers to as, the insufficient explanation by the applicant for the delay in bringing the proposed appeal. Rather, the issue between the parties is whether there are sufficient prospects of success in respect of the proposed ground of appeal, to warrant the Court granting an extension of time so that the appeal can go forward. 3 The ambit of the ground of appeal which is sought to be agitated, if leave is granted, is very limited. The proposed ground alleges apprehended bias on the part of the Independent Merits Reviewer (the reviewer). 4 The applicant relies upon words used by the reviewer during an exchange between the applicant and the reviewer early in the proceeding, as giving rise to apprehended bias on the part of the reviewer. I set out below the transcript of the relevant part of the hearing: I think today's interview will probably go for about an hour, and [sic] hour and a half. If anyone needs a break at any time you just need to let me know that you need a break and we can facilitate that at any time. Anything arising before I start? MR HAMMOND: A couple of matters. At the time of the last interview he's mentioned that his brother was missing. He's subsequently been found residing in Switzerland. There are some documents here. They don't necessarily go directly to providing that he's living there, but some of them are in German or Swiss German. [REVIEWER]: So the first one's a driving licence. Who's that of? APPLICANT: My brother's. MR HAMMOND: I think it's a tracing request that his brother has made to find the family remaining in Sri Lanka. [REVIEWER]: Yes, it's just a tracing request. Anything else? MR HAMMOND: In the previous interview the Department put forward information about him having applied for a visa to the USA and Vietnam in 2007. He denied that he applied for that visa, but he's instructed me that he did actually apply for a US visa in 2007. [REVIEWER]: Yes, 100 per cent you did. And where did you apply for the visa from? APPLICANT: From Malaysia. [REVIEWER]: And now long had you lived in Malaysia? APPLICANT: I was there for five months. [REVIEWER]: And what other countries did you go to? APPLICANT: Vietnam. [REVIEWER]: And how long did you spend in Vietnam? APPLICANT: I lived there for a month, about a month? [REVIEWER]: And how long in Malaysia? APPLICANT: Five months. [REVIEWER]: Why are you only stating this today? Why didn't you say when the information was presented to you by the RSA officer, why didn't you say then that that information was true? APPLICANT: I was told that if you had gone to other countries through the airport you would be deported back to your country. That is the reason why I said that. Apart from that, I came here after being tortured and held under..(not transcribable). So I wanted to save my life and the thought of returning to Sri Lanka meant that I will lie and that's why I said that. [REVIEWER]: It raises an issue, sir, of your preparedness to actually not tell the truth, and it raises really where you've been for the past several years. Because the information that was presented to you, you denied it on several occasions, you denied that you'd ever been to Vietnam, you denied that you knew anything about a visa application to the USA, and that was put to you on several occasions during the course of that interview. And that was in the face of what in my view is incontrovertible, or non-contestable evidence against you. APPLICANT: I said this because of fear for my life. I felt that if I was returned I will die. That is why I said that. Because I came here from a hell pit, so because I had come from such a little hell, I wouldn't want to be back there. And with the torture that I suffered, the questioning that I suffered. I mean it's very difficult to describe what I had to bear when I was there. [REVIEWER]: I have doubts that really anything has ever happened to you and I have doubts about where you've lived for the last three or four years. What type of visa did you apply for in Hanoi? (Emphasis added.) 5 The applicant was represented by Mr Hammond at the hearing before the reviewer. 6 Before the Federal Magistrate, the applicant contended that the italicised words in [4] above, used by the reviewer at such an early stage of the interview, before he had heard evidence from the applicant as to the events which he claimed had happened to him in Sri Lanka, gave rise to apprehended bias on the part of the reviewer. In particular, the applicant contended that the words gave rise to an apprehension that the reviewer would not bring an open mind to the determination of the applicant's claim to be a refugee. 7 The Federal Magistrate rejected that allegation on the basis that a hypothetical fair minded, lay observer, properly informed as to the nature of an independent review, would not have come to the conclusion that the reviewer would not bring an open mind to the question to be determined. At [28]-[32] of his reasons for decision, the Federal Magistrate observed: [28] Is [sic] so far as the applicant's claim is that this gave rise to a reasonable apprehension of bias, this too has no foundation. The only reason the applicant gives for such an apprehension is due to the timing of the questioning - apparently because this issue was discussed "prior to a discussion or consideration of the substantive issues at hand (ie whether or not the applicant was entitled to a visa)". While the Reviewer does not make a decision on an applicant's entitlement to a visa, the Reviewer does make findings of fact bearing on the eligibility of an applicant for a visa. The credibility of an applicant is clearly relevant to the issue of whether or not the factual basis on which the applicant claimed to be someone who should be recognised as a person to whom Australia has protection obligations were true. The applicant's credibility was relevant to assessing one of the issues the applicant contends should have been discussed first - the applicant's personal background. [29] The applicant relies on a number of cases dealing with apprehended bias in curial proceedings in support of his ground. Such cases are distinguishable from the present. In particular, the applicant relies on the judgment in Kwan v Kang [2003] NSWCA 336. That case involved an appeal from a refusal by a primary judge to disqualify himself after having given an interlocutory judgment in which the appeal court found the judge had made unambiguous findings going to the issue of fraud the subject of the substantive proceedings. Such a case needs to be treated with caution when considering administrative proceedings. [30] As the High Court has noted in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, the non-curial nature of administrative proceedings must be taken into account in considering whether an apprehension of bias arises. In particular, the Court noted at [30] that: 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] There is nothing in the transcript or other material before this Court to support the view that a hypothetical fair-minded lay person properly informed as to the nature of IMR review and the matters in issue would form the view that the Reviewer did not bring an impartial mind to the matter. [32] In my view the approach taken by the Reviewer at the interview in the passages quoted was proper - even commendable. The fact of the applicant recanting an earlier falsehood having been raised by the applicant's migration agent, it was appropriate and probably necessary for the Reviewer to ensure that the applicant understood that his credibility was in issue. I reject the first ground of review. (Footnote omitted.) 8 Before me today, the applicant's counsel has argued that the Federal Magistrate erred. 9 Counsel for the applicant contended that the reviewer's words, "I have doubts that really anything has happened to you", would not be apprehended as an expression of genuine doubt, because the words, when construed in context, were, as he put it, at "the extreme end" as an expression of genuine doubt. Rather, said counsel, a fair minded, properly informed, lay observer would apprehend the words as meaning that there was nothing that the applicant could say thereafter which would persuade the reviewer that he was a genuine refugee. 10 In my view, the Federal Magistrate approached the question of apprehended bias in this case in an appropriate way and did not err in so doing. 11 The position contended for by the applicant, failed to take into account the fact that a properly informed, fair minded, lay observer would know that it was incumbent upon a reviewer to accord an applicant procedural fairness; and so, that it was incumbent upon a reviewer to identify to the applicant what the issues were in the hearing of the application. 12 In this case, the credibility of the applicant's claim was plainly going to be an issue because of the fact that the applicant had on previous occasions put forward different versions of events. In my view, the reviewer acted properly in identifying, right at the commencement of the process, that the question of credibility of the applicant's claims as to what had happened to him in Sri Lanka, was going to be an issue in the review. In other words, what the reviewer was saying was that this was not going to be a case where it might be the application of undisputed facts to the Convention definition of a refugee; this was going to be a case where what the applicant said had happened in Sri Lanka was going to be an issue. 13 Further, in my view, contrary to the contention of counsel for the applicant, there was, also, an association between the applicant's claims to have suffered persecution in Sri Lanka and the expression of doubt as to the credibility of those claims, by the reviewer in the impugned statement. This is because in the preceding paragraph of the transcript, the applicant had himself said that he had made false statements on a previous occasion because he feared for his life, because he had been tortured and he had been in, what he referred to, as a "hell pit". So it was not a case of the reviewer expressing doubts as to the truth of the applicant's version of events in Sri Lanka without having first heard what the applicant's claim was. What happened was that the applicant had stated in very concise terms the nature of his claim to have suffered torture and persecution in Sri Lanka, and the reviewer responded by stating that the factual basis of that claim was going to be an issue. 14 As mentioned, in my view, the Federal Magistrate dealt with the applicant's complaint as to apprehended bias appropriately. 15 It follows that, in my view, the proposed ground of appeal does not enjoy sufficient prospects of success to permit this matter to proceed further by way of a grant of an extension of time. The point which the applicant wishes to raise on appeal is very crisp and concise. I do not think that further elaboration of the point on appeal would improve its prospects of success. 16 I, therefore, dismiss the applicant's application and order that the applicant pay the first respondent's costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.