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[2003] FCA 872
Federal Court of Australia
2003-08-20
Kenny J
Original judgment source is linked above.
THE COURT ORDERS THAT: 1. An order is made in the nature of certiorari directed to the Refugee Review Tribunal quashing its decision given on 2 July 2002, affirming the decision of the respondent's delegate not to grant the applicant a protection visa. 2. An order is made in the nature of mandamus directed to the Refugee Review Tribunal that the Tribunal, differently constituted, rehear and determine the applicant's application for review according to law. 3. The respondent is to pay the applicant's costs of and incidental to the proceeding in this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AND: Minister for Immigration and Multicultural and Indigenous Affairs
REASONS FOR JUDGMENT introduction 1 The applicant, who is a citizen of Pakistan, seeks relief under s 39B of the Judiciary Act 1903 (Cth) with respect to a decision of the Refugee Review Tribunal ("the Tribunal"). 2 The applicant first came to Australia on 26 September 1998. On 9 November 1998, he applied for a protection visa pursuant to s 45 of the Migration Act 1958 (Cth) ("the Act"). A delegate ("the delegate") of the respondent Minister refused his application. He sought review of this decision by the Tribunal under s 412 of the Act. In November 1999, however, before the Tribunal had determined his application, he returned to Pakistan. On 10 March 2001, he returned to Australia, this time travelling on a counterfeit Singaporean passport. On his arrival at Melbourne Airport, officers of the Minister's department interviewed him and took him into immigration detention. 3 After conducting a hearing in April 2001, the Tribunal affirmed the delegate's decision ("the first Tribunal decision") on 9 May 2001. This decision was the subject of judicial review by this Court, which found reviewable error in the Tribunal's failure to meet the requirements of s 424A(1) of the Act. The Court set aside the first Tribunal decision and remitted the matter to the Tribunal, differently constituted, for further consideration. 4 On 13 June 2002, the Tribunal embarked on a second hearing of the applicant's review application. On 2 July 2002, the Tribunal again affirmed the delegate's decision to refuse to grant the applicant a protection visa ("the second Tribunal decision"). The decision is the subject of the application for judicial review in this proceeding. The applicant seeks relief with respect to the second Tribunal decision on the grounds of actual bias, apprehended bias, and denial of a fair opportunity to be heard. 5 Before turning to these grounds, it is convenient to identify the precise issues on which the second Tribunal decision depended. In order to do this, it is necessary to outline the basis upon which the applicant sought a protection visa. 6 The applicant claimed that he feared persecution on the ground of political opinion if returned to Pakistan. He said that he had been actively involved in a campaign for the election of a Pakistan Peoples' Party ("PPP") candidate to the National Assembly in a by-election held on 15 April 1997 in the electorate of NA 150 of Rahim Yar Khan in the province of Punjab in Pakistan. He claimed that, in campaigning for the PPP candidate against a candidate for the Pakistani Muslim League ("PML"), he attracted the enmity of a feudal lord who supported the rival PML candidate in the by-election. As a consequence, the "mafia" under the control of the feudal lord had threatened and intimidated him by, for example, positioning themselves outside his home, approaching him in public places, threatening him with harm and pursuing him to other parts of Pakistan. After the by-election, at which the PML candidate was successful, the applicant said that he had been compelled by threats and intimidation to leave his home and to take up employment elsewhere, in circumstances where there was some level of protection or travel. He also said that at times he had been unemployed. The applicant claimed that members of the feudal lord's mafia had assaulted his wife (who remained in Pakistan) and ransacked his home. He alleged that, in January 2000, he had been shot in Lahore, some 600 kilometres from his home. the second decision of the tribunal 7 The Tribunal found that the applicant did not satisfy the criterion for a protection visa that is set out in s 36(2)(a) of the Act. It was not satisfied that the applicant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (collectively referred to hereafter as the "Refugees Convention"). It found that there was "not a real chance" that the applicant would suffer persecution for a Convention reason if returned to Pakistan and, accordingly, it was not satisfied that he had a well-founded fear of persecution within the meaning of the Convention. The Tribunal's reasons, consisting of some forty pages, may be summarised as follows. 8 The Tribunal did not accept the applicant's claim to have taken part in the by-election in support of the PPP candidate, Mr Khan, and to have "attracted the adverse attention" of "feudal lords by reason of his political opinion". It found that his account was "implausible" and that he was "prepared to alter and enhance his claims to meet the circumstances as they have occurred". 9 The Tribunal found that it was "not credible that the applicant in the role of campaign manager and at the very least as someone directly involved with the campaign" did not know the date of the by-election and the number of candidates who contested it. The Tribunal noted that, during the first Tribunal hearing, the applicant had maintained that the date of the by-election was 26 March 1997; and that he had corrected what he had referred to as his "terrible mix" with dates only after the Tribunal had provided him with information that indicated there could have been no election on this date. The Tribunal did not accept the applicant's explanation that he had been in pain during the first Tribunal hearing and had been unable to concentrate. The Tribunal noted further that the applicant had initially said that there were only two candidates in the by-election, but had subsequently "changed his claim and stated without any explanation that there were 3 candidates". 10 The Tribunal did not accept the applicant's claim that a feudal lord would, in the circumstances, seek his revenge against the applicant. The Tribunal stated that it "is implausible that the feudal lord would be motivated to seek revenge against the applicant after the election in these circumstances and in particular given that his candidate had an overwhelming victory in the by-election and his party had an overwhelming victory in the elections overall". The Tribunal did not accept that a candidate endorsed by the PPP would not be supported by "experienced campaign managers and workers and thought out strategy of how to conduct the campaign in this particular area". The Tribunal found that "it is not plausible that the candidate would seek the assistance of someone who had no experience of campaigning and was not a party member, such as the applicant for such an important role". Further, the Tribunal did not accept that the applicant "would take on what he claimed was a dangerous role" in support of Mr Khan. 11 The Tribunal rejected a claim, which it imputed to the applicant, that Mr Khan had found it necessary to run away after the election, since this was inconsistent with the country information in the Tribunal's possession and Mr Khan had not given evidence to this effect. The Tribunal also noted that the applicant had remained in Pakistan for a year after the by-election "without suffering any harm". It did not accept the claim that the applicant was "in hiding while moving around in the course of [his] employment following the by-election". It found that the applicant was "in employment and supporting himself and his family until he left for Australia in late 1998". 12 The Tribunal observed that the applicant "had ample time to seek out and obtain supporting information from Mr Khan prior to Mr Khan's letter of 2 October 2001". The Tribunal stated: The applicant's lack of knowledge of Mr Khan's actual situation in contrast to the applicant's original claims, would appear to indicate that he was not associated with Mr Khan in the way he claimed. 13 The Tribunal said that it had "carefully considered the evidence provided by Mr Khan, but … finds that this does not allay its doubts about the applicant's claims". The Tribunal found that Mr Khan's letter of 2 October 2001 "displayed little knowledge of the applicant", beyond repeating the applicant's claims. In light of the inconsistencies between Mr Khan's statement and the applicant's evidence, the Tribunal did not accept Mr Khan's statement "as an accurate statement of what had happened to the applicant". 14 The Tribunal did not accept that the applicant had been shot in Lahore in January 2000, as the applicant had claimed. The Tribunal noted that he had failed to mention the shooting when he was interviewed on his arrival at the airport, and it did not accept his explanation about this omission. The Tribunal concluded: Based on his failure to mention what was potentially an important claim at interview at the airport and given the ambivalent and inconclusive medical report, the Tribunal does not accept that the applicant was shot. Given that the Tribunal has rejected the applicant's claims to have been involved in the politics connected with the by-election, the Tribunal finds that even if the applicant were shot it was not related to any political opinion or involvement. The Tribunal also concluded that, even if the applicant had been involved in the by-election, such involvement would not have attracted the adverse attention that he claimed, since it was usual for seats to be contested and the feudal lord's candidate had been successful. It found that the applicant had not been "sought or followed by those connected with the feudal lord". The Tribunal also found that the applicant's family had not been "subject to the harassment and surveillance he has claimed". 15 Finally, the Tribunal did not accept the applicant's explanation of why he had remained in South East Asia for 13 months after leaving Pakistan and before coming to Australia a second time. It concluded: It is now 5 years since the by-election. Even if the Tribunal was to accept that the applicant had assisted the candidate, and it does not accept this, the by-election is now long in the past, the preferred candidate of the Feudal Lord won the election and his party formed government. the bias grounds 16 As already noted, the applicant challenged the second Tribunal decision on the grounds that it was vitiated by bias, both actual and apprehended. In light of the conclusion reached by me with regard to bias, it is unnecessary to say anything further about the applicant's third ground - that he was denied a fair opportunity to be heard. 17 The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 permits the conclusion that, if jurisdictional error is established on the grounds of actual or apprehended bias in respect of a decision that would otherwise be a "privative clause decision" within s 474 of the Act, then orders of the kind the applicant seeks may be made. See also Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, at 512 per McHugh and Gummow JJ; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 ("Ex parte H") at 426 per Gleeson CJ, Gaudron and Gummow JJ; NAEB of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 25, at [5] per Keifel, North and Allsop JJ; and M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290, at 313-316 per Goldberg, Weinberg and Kenny JJ. (i) Actual Bias 18 In order to make out a case of actual bias on a decision-maker's part, a person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently. As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 ("Jia"), at 531: The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. See also C v Minister for Immigration and Multicultural Affairs (2000) FCA 1649, at [2] per R D Nicholson, Finkelstein and Stone JJ. 19 A party alleging actual bias on a decision-maker's part carries a heavy onus. The allegation must be "distinctly made and clearly proved": see Jia, at 531 per Gleeson CJ and Gummow J and 546 per Kirby J. 20 The authorities apparently accept that, as von Doussa J observed in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, at [37]: Whilst actual bias involves a state of mind which must be established by the party making the allegation, proof of an intentional state of mind adverse to the case of that party is not the only way of establishing it. Actual bias may be subconscious, provided it is real, and may be established by inference from the circumstances including from the decision itself: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 126 - 127 per Burchett J and at 134 - 135 per North J; Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at 6; re Minister for Immigration and Multicultural Affairs; ex parte 'A' [(2001) 185 ALR 489 at 496-497]; and Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885. … A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality. 21 A case of actual bias is seldom made out by reference solely to the reasons for a decision. A case may, however, be made out by reference to these reasons, as well as the decision-maker's attitude and conduct (as, for example, in the course of a hearing preceding the decision): see, e.g., Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 ("Sun Zhan Qui"), at 134-135 per North J. The Court has inferred actual bias by prejudgment from various factors, including a decision-maker's hostile approach to a party in a hearing, and a failure on his or her part to enquire into or obtain readily available and critically important information: see, e.g, Sun Zhan Qui, at 135 and SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591, at [26]-[27]. As Lockhart J noted in Sarbit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 ("Sarbit Singh") at 9, any fact or circumstance that is said to indicate actual bias must be considered in the context of the whole case. 22 Certain of Lockhart J's observations in Sarbit Singh are apposite in this case. At 6-7, his Honour said: It is always difficult to explore the actual state of mind of a person said to be biased. Evidence to establish actual bias may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may properly be drawn. … … When the ground of actual bias is that the Tribunal has prejudged the matter before the conclusion of the hearing, the transcript of the proceeding before the Tribunal will, of course, be important especially to determine the actual statements made by the Tribunal, the nature of the exchanges between the Tribunal and the parties or their legal representatives, and the context in which the statements were made … . Whether or not there has been actual bias by prejudgment is a question of fact. 23 This said, the authorities establish that a case of actual bias is not made out simply by showing that a decision-maker reached a preliminary view, even on a critical matter. Actual bias will be shown only if the preliminary view was incapable of alteration: see Jia, at 532 per Gleeson CJ and Gummow J. This must be so in the case of the Tribunal, since no hearing is held where the Tribunal has formed the view, on the papers, that a decision favourable to the applicant should be made: see the Act, s 425(2). The authorities show, moreover, that actual bias is not necessarily to be inferred from the fact that, during a hearing, a decision-maker indicated impatience and irritation, or adopted a discourteous and aggressive approach towards a party: see, e.g., Sarbit Singh, at 9-10; C v Minister for Immigration and Multicultural Affairs, at [13]-[16]; H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348, at [12]; (2000) 63 ALD 43, at 46 per Branson and Katz JJ (a decision set aside by the High Court on a different ground). It will always be a question of fact and degree as to whether a closed mind can be inferred from any hostility displayed by the decision-maker in the course of decision-making towards a party or a party's case. (ii) Apprehended Bias 24 The applicant also relied on apprehended bias. Since the test for this form of bias is more readily satisfied than for actual bias, I focus below on this ground. 25 The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex part H, at 427. Further, their Honours posited, at 434-5, that: Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 26 As in the present case, Ex parte H concerned the Refugee Review Tribunal. The Court held that, in the circumstances, having regard to the transcript of the hearing before the Tribunal, "a fair-minded lay observer or a properly informed lay person" might infer that there was nothing that the prosecutor could say or do "to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa": see Ex parte H, at 435 and compare Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at 71 per McHugh and Gummow JJ. In so holding, the Court referred to "the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events": see Ex parte H, at 435. 27 In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at 435: 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 … . Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. the conduct of the hearing - what the transcript shows 28 The applicant in this case, as in Ex parte H, relied on the transcript of the hearing before the Tribunal in support of his case. I was asked by both counsel for the applicant and the respondent Minister to listen to the tapes from which the transcript had been prepared, in order to hear the tone of the Tribunal's remarks and to understand the context of what was said. 29 After the hearing, I did as I was asked. I listened to the tapes in their entirety: compare in this regard, Sarbit Singh, at 12. Since the applicant relied on virtually the whole of the transcript (and all of the tapes), reference must be made to them. I set out below a description of the hearing as it developed over the 4 hours, referring to some passages that seem to me to illustrate what happened. 30 The applicant also sought to rely on a number of affidavits. They were (1) an affidavit affirmed on 13 December 2002 by Jade Kira Furlong, court recorder and typist; (2) an affidavit sworn on 13 December 2002 by Emily Latif, solicitor; (3) an affidavit affirmed on 3 December 2002 by Caitlin Barrah, solicitor; (4) an affidavit affirmed on 13 December 2002 by Catherine Marie Scalzo, solicitor and migration agent for the applicant from May 2002; and (5) an affidavit affirmed on 12 December 2002 by the applicant. None of these deponents were subject to cross-examination. 31 I accept, as counsel for the respondent submitted, that Ms Furlong's affidavit was inadmissible on this application. I accept that Ms Barrah's affidavit was admissible in so far as the applicant relied upon it only to establish the facts recorded in it and that Ms Barrah spoke to a person who identified himself as Mr Khan about the matters she mentioned in her affidavit. I also accept, for reasons advanced by the respondent, the respondent's objections to the admissibility of parts of the affidavits of Ms Latif and Ms Scalzo (save to the extent that they included any empirical observations on the conduct of the hearing and, possibly, to the extent that they related to the case which the applicant sought to make on procedural fairness). The applicant's counsel did not read par 29 of the applicant's affidavit, which is otherwise admitted into evidence. 32 The Tribunal hearing commenced at 2.42 pm on 13 June 2002 and ended at 7.00 pm on that day. The Member questioned the applicant in very great detail for virtually the whole of these four hours. Around 6.00 pm, the applicant enjoyed a short break of ten minutes - a break initiated by his migration agent. The Tribunal Member ("the Member") did not indicate at any point how long the hearing would run, or when she might call it to a close. She proceeded in this way, without apparent regard to the fact that the applicant was not giving evidence in his first language and that he apparently had medical problems with his back. (There was an interpreter present but he was rarely called upon to assist.) (i) The opening of the hearing 33 The hearing began inauspiciously for the applicant. The Member began with some adverse remarks about the applicant's representatives. In order to appreciate their force, it is necessary to set out briefly the steps taken by them to prepare for the hearing. 34 In an affidavit affirmed on 13 December 2002, the applicant's migration agent, Ms Catherine Scalzo, said that her firm ("the firm") agreed to act for the applicant in early May 2002 and, shortly thereafter, she and a solicitor, Ms Emily Latif, began working on the matter. At Ms Scalzo's request, Ms Latif spoke with a Tribunal officer and the applicant on 8 and 9 May respectively. On 17 May 2002, Ms Latif spoke to the head of the Tribunal's case management team who left her with the impression that the applicant's representatives would probably have about two months in which to prepare for the hearing. This did not turn out to be the case. 35 Since the applicant had not been represented at the first Tribunal hearing, Ms Scalzo and Ms Latif set out to identify what, if any, further material he might require to support his case. As a result, they decided to search for experts in Pakistani affairs and, in late May, settled the experts' briefs. Ms Latif and an articled clerk interviewed two proposed experts (Dr Peter Mayer and Associate Professor Marika Vicziany) on 11 June 2002 and asked them to complete statutory declarations for lodging with the Tribunal. 36 As the firm had not acted for the applicant earlier, a Freedom of Information ("FoI") request was made for the applicant's file from the Tribunal. After discussion with the applicant, Ms Scalzo also formed the view that Mr Khan's evidence was critical to the applicant's case. On 29 May 2002, the firm sent a facsimile to the Tribunal stating that, if the matter were to proceed to hearing, the applicant would request the Tribunal to allow Mr Khan (who was in Pakistan) to provide oral evidence and that he would need 15 to 20 days' notice in order arrange his attendance in Australia. Since the applicant's pro bono representatives in the Federal Court had interviewed and taken written statements from Mr Khan, these statements too were forwarded to the Tribunal. (In an affidavit affirmed on 3 December 2002, Ms Caitlin Barrah, who had been one of these representatives, set out how these statements were obtained.) 37 In the mid-afternoon of 5 June 2002, Ms Scalzo received a facsimile notification from the Tribunal that there would be a hearing of the applicant's visa application on 13 June 2002. There was a public holiday on 10 June 2002, leaving the applicant's representatives only four business days between the notification and the hearing. On 6 June 2002, Ms Scalzo also received a letter from the Tribunal advising that it had decided to conduct the hearing on 13 June since the applicant was in detention and the Tribunal had an obligation to determine the matter without delay. The letter also stated that the Tribunal did not require Mr Khan's presence and would consider a written statement from him. The applicant's solicitors subsequently asked the Tribunal whether it would be willing to hear evidence from Mr Khan by telephone, but the Tribunal, by letter dated 12 June 2002, merely reiterated that it did not intend to take evidence from Mr Khan at the hearing and would consider a written statement from him. 38 Ms Scalzo wrote to the Tribunal on 6 June 2002, requesting the Tribunal to reconsider the hearing date. The request was refused on 7 June. She also received a response to her FoI request on 7 June 2002. Since the response referred to documents that would not be disclosed, Ms Scalzo wrote to the Tribunal requesting confirmation that it would not rely on any document that had not been released. 39 In the evening of 12 June 2002, Ms Latif faxed to the applicant a draft of a statutory declaration for filing with the Tribunal. He did not receive it. By the time the applicant did receive the draft, there was no time left to amend it and lodge it with the Tribunal prior to the hearing. 40 In opening the hearing, the Member complained about the applicant's representation. She said, in part: … I've done my best to read the documents that have come in, and I must actually lodge a very serious complaint about the slack way in which all these documents have been lodged today or yesterday. You've had this matter before you for some time - I notice there was a phone call coming on 14 or 17 May - and yesterday and today I'm deluged with hundreds of pages of documents. The tribunal does not appreciate it. It has done its best to read the documents, but certainly it is not the way to conduct assistance to your client. 41 When Ms Scalzo, whose firm was acting pro bono in the matter, sought to explain that she had hoped to have had a longer period in which to prepare, the Member responded: But you know surely - you're a migration agent. You know what the state of affairs is with someone in the situation of the applicant. It was explained to you. Well, I can't accept that explanation. You know what the regulations say. This gentleman is entitled to have his hearing brought on as soon as possible and to have heard the decision in a reasonably short period of time. … I'm very upset to think that I have a statutory declaration today from the applicant. That is something that should have been on the file a couple of weeks ago. … Well, that's pretty difficult for me, isn't it. You just think about it. … I'm afraid I can't accept your explanation. You're a migration agent; you know how these cases are brought on. … So I'll do my best to look at this, but you have made it very difficult for both your applicant and me. 42 After again expressing her dissatisfaction (though reading the material which, as explained above, had been filed shortly prior to the hearing) the Member remarked, "[t]his doesn't look like something drafted by the applicant". When Ms Scalzo sought to respond, the Member cut her off, saying "I don't want an explanation from you, I'm just telling you one of the alarming things about it is that it incorporates quite a bit of material from the witness statements which I've already read … ." A few moments later, when Ms Scalzo sought to answer a question apparently directed to her, the Member responded, Anything else you'd like to do in order to prompt your client? You're not here to prompt your client's evidence, please. You see, if you prompt him all the time, that goes to his credibility. You are a qualified migration agent? 43 After the migration agent offered her apologies, the Member continued: Well, I'll just ask you not to say anything else until the end of the hearing, if you want to, please. Now, the other thing I'd like to say is there has been a very strange letter on the file asking me or the tribunal to give an undertaking that it won't take into account certain information that was not released under Freedom of Information. Now, I found that quite a peculiar letter, because why would the tribunal - well, I won't say why would you, because you'll probably give me a long explanation. But there is no reason why a tribunal of any sort would use something in its decision that has not been revealed in FoI. That's an alarming suggestion that has been made to the tribunal. When the migration agent said, "we hadn't understood that it related to matters not connected to this matter", the Member said: Yes, but it was made quite clear that it related to somebody else, to another person. Now, you see, as a migration agent, you should be on top of all these things. … I'll have to ask you to be very careful not to prompt your client. … Be very careful, because that actually goes, as I explained, to his credibility, if you do so. 44 Ms Scalzo had plainly not sought to prompt the applicant and there was nothing "peculiar" about her firm's letter concerning the Tribunal's FoI response. Ms Scalzo and the others working with her had not been dilatory in their preparation for the hearing: on the contrary, they had worked hard to meet the Tribunal's deadline. In listening to the tape, it is apparent that Ms Scalzo was well aware of her role as the applicant's migration agent and that her conduct was exemplary. The tone of the Member's opening remarks can best be described as querulous or peevish. She was unfairly dismissive of explanations politely offered to her. Her discourtesy was calculated to belittle and, more importantly, to diminish Ms Scalzo's capacity to contribute usefully to the hearing. Being querulous, peevish or even rude would not, on its own, however, make out a case of disqualifying bias. (ii) The hearing 45 From the outset of her questioning of the applicant, the Member adopted a somewhat belligerent style. At best, from the applicant's viewpoint, her tone of voice conveyed a very real suspicion that he was not telling the truth and that she was very much inclined to disbelieve him and his story. Although the applicant had an admirable command of the English language, English was plainly not his first language. The Member repeatedly asked him to spell into English non-English language names, expressly referring disparagingly to inconsistencies with his evidence before the first Tribunal. 46 For example, the applicant stated that his candidate at the by-election was Qamar Uz Zamam Khan and that he stood under the name Kamal Jamal Khan. [Tribunal Member]: Did he? [Applicant]: Yes. [Tribunal Member]: I've got the tape of your previous hearing and you didn't give that name. [Applicant]: I didn't give (indistinct) but later I find out that officially he was only come as (indistinct) he don't use (indistinct) but I know his family. We sometime ask people with their family names - but he is from Khan family. They use this both in the (indistinct) and Khan. [Tribunal Member]: I'm just looking at what you've said his name was then, because you were asked to spell it, you know. [Applicant]: I spell it wrong. [Tribunal Member]: Did you? [Applicant]: Yes. I'm not sure about the (indistinct) English spellings, because we don't run there in English. [Tribunal Member]: No, of course not. Well, how should you have spelt it when you spelt it? [Applicant]: I'm spelling it now. … [Tribunal Member]: Even with the spelling, you didn't give this name as you're giving it now. [Applicant]: As I told you ‑ ‑ ‑ [Tribunal Member]: How would you have got it so wrong? [Applicant]: We call people there with the names we know, and we don't go in English on our radios. Pakistan is not an English language country. We normally speak the local languages and we read and write our national languages, Urdu ‑ ‑ ‑ … [Tribunal Member]: I'm not after the correct official spelling, I'm just after a reasonable spelling. [Applicant]: I told you the spellings of his name. [Tribunal Member]: Well, it's quite different from what you've told me previously. [Applicant]: It is still Qamar uz Zamam Khan. It is still - if you spell and read the previous what I said in this ‑ ‑ ‑ [Tribunal Member]: Yes. I listened to the tape and I wrote it down. [Applicant]: In the tape, as well, I spoke Qamar uz Zamam Khan, and it is still the same. [Tribunal Member]: I'm sorry, but you didn't. [Applicant]: I did. [Tribunal Member]: No, I'm really sorry, but you didn't. [Applicant]: I did not say Rana Qamar uz Zaman Khan in the tape? [Tribunal Member]: No. … [Tribunal Member]: Okay. I can't find the page now, but I've made a particular note of it because I was really puzzled. [Applicant]: Is it clear now? [Tribunal Member]: Well, it's clear that you didn't give it properly the first time. [Applicant]: I have given you the proper name. [Tribunal Member]: You see, you can change in your evidence all the time, but that's a puzzle ‑ ‑ ‑ [Applicant]: I haven't changed. [Tribunal Member]: Well, you've changed that. [Applicant]: What I change? [Tribunal Member]: The name. [Applicant]: It is still the same. ... [Tribunal Member]: Yes, that's right. I do a lot of Pakistan cases so I understand Pakistan names. But you didn't put your ‑ ‑ ‑ [Applicant]: Well, I did. [Tribunal Member]: I'm sorry, you didn't, and ‑ ‑ ‑ [Applicant]: But I did. [Tribunal Member]: Well, you can argue all you like but ‑ ‑ ‑ [Applicant]: That was printed wrong by the RRT; I was not writing, I was not printing. All I said ‑ ‑ ‑ [Tribunal Member]: Okay, Mr… . As explained to you, I listened to the tape, I have written every word down - 40 pages of them - and I took all the spellings. [Applicant]: Yes. … [Tribunal Member]: But you don't make a mistake about a candidate that you support. [Applicant]: Yes - I'm not making it. His name is still Qamar uz Zaman Khan and it was then Qamar uz Zaman Khan. [Tribunal Member]: Well, why didn't you tell the tribunal that this time? [Applicant]: I told them. I told them. [Tribunal Member]: Okay. [Applicant]: How come when the tribunal find out that I put this name Qamar uz Zaman Khan if I didn't tell them? [Tribunal Member]: Because your agent wrote and told us. [Applicant]: Which agent? [Tribunal Member]: This agent. [Applicant]: No, I'm talking about the previous ‑ ‑ ‑ [Tribunal Member]: Mr …, I don't want to engage in an argument with you. I have told you that what you said on the tape is different from what you're telling me now, and I've told you that I listened carefully to the tape and that I wrote it all down. 47 The fact is that the applicant had no migration agent at the time of the first Tribunal hearing. (The applicant was afforded representation, on a pro bono basis, only before this Court on his first judicial review application and, thereafter, before the Member.) Perhaps, the Tribunal was referring to a letter from Ms Scalzo, such as her letter of 6 June 2002, even though the applicant's evidence was that he had corrected himself at an earlier date. As one might expect, Ms Scalzo sought to intervene at this point. Her assistance was refused (although the Member told that she might go to the toilet if she wished). 48 In listening to the tapes, the Member's aggressive style of questioning is plain enough. As I have said, her tone of voice conveyed a very real suspicion, even disbelief, about the applicant's truthfulness. When the applicant sought to explain his role in the by-election campaign, the Member responded that it was "a lot more than … what you gave before about what you did". She added: Yes, I'm at the previous RRT. What's in this is new information which has never been given before, not to anyone. Suddenly this new information has arrived. One way or another, from the beginning of the hearing, the Member expressed her doubt about the applicant's truthfulness. 49 Presumably in an effort to have her modify her approach towards him, the applicant responded, "I even told your kind self a little while ago that this is a new RRT". Asking if he were able to add "something more", the Tribunal responded, "Yes, if you want to, as long as it concerns the question I asked and not anything else". There was no occasion for this comment. The applicant then explained that there was no-one in the 1997 by-election available to accept the PPP ticket against "this particular son of an ex-general", save for his friend. This led to the following exchange: [Tribunal Member]: Well, the PPP had fielded candidates in the 1993 and 1994 ‑ ‑ ‑ [Applicant]: They have done it since 1970s. [Tribunal Member]: In your area? [Applicant]: They still have the greatest vote (indistinct) in Pakistan than any other single party. [Tribunal Member]: Okay. So they've stood in your particular area since 1973, you said. [Applicant]: I didn't say 73. You're taking it by yourself. [Tribunal Member]: No, I asked you ‑ ‑ ‑ [Applicant]: I said they always have their candidates country-wide since 70s. I did not say anywhere 73. [Tribunal Member]: Okay. That's why I queried it, because I wondered too. [Applicant]: You're something like feeding me - you're misleading me. [Tribunal Member]: No, I didn't. I asked you ‑ ‑ ‑ [Applicant]: You mentioned it, 73, by yourself, whereas I say ‑ ‑ ‑ [Tribunal Member]: That's why I asked. [Applicant]: I have corrected you ‑ ‑ ‑ [Tribunal Member]: No, that's why I asked, because I was concerned to know what the date actually was. [Applicant]: All right. [Tribunal Member]: But you still haven't given it to me, you've just said the 1970s. [Applicant]: I have corrected you. [Tribunal Member]: No, no, you have told me what you said, which is something quite different, which is what I queried. So they have stood country-wide since the 1970s ‑ ‑ ‑ [Applicant]: 70s. 50 In this passage, as in the next (concerning the position of campaign supporters) the Member's hostile attitude, underscored by the tone in which she questioned the applicant, either led her to misquote his evidence or prevented her from accurately processing what she heard. In this (as in an immediately following passage) the Member's tone indicated, or might reasonably be thought to have indicated, positive disbelief. Following a similarly heated argument with the applicant, the Member mistakenly averred that she had asked a question about "supporters", declining to accept Ms Scalzo's assistance that the Member had been understood as inquiring after people that were "standing". In the same disbelieving tone as before, the Member then returned to the subject of the other candidates who had stood at the election. 51 In numerous passages, the Member's repetitive style and her adverse commentary on the applicant's evidence conveyed the impression that she was disposed to regard him as untruthful and as fabricating his claim. When the applicant reiterated that he knew only of the by-election in 1997, she said: [Tribunal Member]: You didn't know the date of that by-election. [Applicant]: Yes, I knew the date. [Tribunal Member]: Did you? … [Applicant]: I mixed up, and I corrected them when I mixed up the date, and we all can make mistake. I was in a great sort of pain in my back at that time. … [Applicant]: That what I'm telling you; all these things can mentally upset anyone, and I was ‑ ‑ ‑ [Tribunal Member]: So you were mentally upset. [Applicant]: I was. I made mistake. [Tribunal Member]: You couldn't remember the date. [Applicant]: I made mistake and then I corrected by myself to the member. I write a letter ‑ ‑ ‑ … [Tribunal Member]: Well, the member mentioned it several times. See, you mentioned it right at the beginning of the hearing and during the hearing, the member mentioned it to you and you didn't say that it was wrong, and then at the end of the hearing ‑ ‑ ‑ [Applicant]: I told you I was facing a great sort of depression and pain and sickness, and I told you that I made mistake, which I admitted then, and I wrote a letter ‑ ‑ ‑ [Tribunal Member]: Well, you had to. [Applicant]: ‑ ‑ ‑ explaining the mistake. [Tribunal Member]: No, you didn't; you just said, 'I made a mistake.' That's all you said. [Applicant]: I said, "I mixed up with the dates", and I corrected. … [Tribunal Member]: Yes, that's right. That's right. But you took quite a long while to do that. You didn't do it straightaway. [Applicant]: Yes, I did that. [Tribunal Member]: That's right, you did. That's right. Now (indistinct) in the other file. That's right, 'Please note and correct my terrible mix of the dates,' at 26 April 2001. The hearing was held on 11 April, so that was about 15 days later. [Applicant]: Yes. [Tribunal Member]: Yes. It took you a long while to remember. [Applicant]: To remind you, during that period there was some people, they were helping me to turn my side. I was in a great pain as my four of the discs, lower discs, were bulged, and even this letter was given to me while I was on bad time. [Tribunal Member]: So it took you 15 days. [Applicant]: I'm still in pain, but that period, I was given a lot of pain-killers. [Tribunal Member]: And how would pain-killers affect your memory? [Applicant]: Well, if you have a lot of pain ‑ ‑ ‑ [Tribunal Member]: Well, I do. [Applicant]: Yes, and then I don't think you are able to do many things which you can normally. [Tribunal Member]: A lot of people - well, I won't say you're one of the people. You may be different. … [Tribunal Member]: You may be different, yes. You may be different - because from to time most people experience some pain in their life ‑ ‑ ‑ [Applicant]: It wasn't some pain, it was four of my discs going bulged altogether, and it had (indistinct) and I was experiencing this terrible pain first time in my life. [Tribunal Member]: But you actually told the previous tribunal that you were on medication for it and that you were taking it. [Applicant]: I never took medication before. … [Applicant]: It's here. It was here. It was here. The medication started here after arriving in Australia. The discussion on this subject continued in similar tenor until the applicant said, "I mean, I don't understand why we have to talk these things for three or four time, the similar question". The Tribunal answered, "Because of the answer you gave, that is why". 52 As already indicated, in her conduct up to this point in the hearing (including her style of questions, comments and tone of voice) the Member conveyed the impression that she was taking an adverse view of the applicant's truthfulness and disbelieved his evidence. Throughout this part (as in other parts) of the hearing, the Member frequently "talked over" the applicant. Hers was a hectoring approach. Her questions and comments regarding his evidence about the date of the by-election were misleading. A reading of the transcript of the first Tribunal hearing shows that, in his evidence, the applicant mentioned the wrong date only once. The first Tribunal referred to this date first in asking a question immediately after he had referred to it, and again at the end of the hearing. The Tribunal did not, as the Member claimed, mention the wrong date several times. As the applicant said, he corrected his evidence a fortnight later. The Member's remark that this was "quite a long while" was groundless. As with virtually all her commentary on the applicant's evidence, it was adverse to him. 53 The hearing continued in the same vein when it moved to the topic of the applicant's post-election activities. The following exchange about the applicant's management of a strike is illustrative. In connection with the workers, the Tribunal asked "Were they upset?". [Applicant]: We change the camp boss and we ask another person come there to be a camp boss, and the food was relatively brought into bit better shape ‑ ‑ ‑ [Tribunal Member]: Were they satisfied? [Applicant]: They were satisfied. [Tribunal Member]: Okay. So the only person that was forced to leave was the camp boss. Is that right? … [Applicant]: He was not forced to leave. He was not forced to leave. [Tribunal Member]: He's still there running it? [Applicant]: No, I talked to the company, the management (indistinct) we have to replace the camp boss, we need to have a new camp boss. [Tribunal Member]: So did you replace him? [Applicant]: Because there was a lot of people, they don't want to work and they think that his behaviour was not good enough with the workers. [Tribunal Member]: Yes, but was he replaced? [Applicant]: He was replaced. [Tribunal Member]: Thank you. What happened to him? Where did he go? [Applicant]: I don't know. 54 A short, though apparently irrelevant, discussion on the fate of the camp manager that followed could have served only to increase disquiet about the Member's openness to the applicant's case. The Member's frustration with the applicant, perhaps more apparent on listening to the tape than on reading the transcript, was unfair. The applicant's initial evidence was merely that the manager had been changed, which the Member mistakenly understood as signifying that he had been forced to go. The applicant was not to blame for this misunderstanding on the Member's part. When the Member turned to what she called "the other problem" (his failure at the airport to mention that he had been shot) her approach to him remained hostile. 55 By a third of the way into the hearing, the Member had stated her disbelief in at least part of the applicant's claim - namely, that concerning his passage to Australia. She said: [Tribunal Member]: Well, I have difficulty in believing that a whole series of agents robbed you of money. I have a great deal of difficulty in believing that. [Applicant]: I can't help you, madam ‑ ‑ ‑ [Tribunal Member]: No, I know you can't, and I just can't believe it. 56 The Member examined the applicant on the shooting incident in Lahore in detail. Although the following passage is lengthy, I set it out as indicative of the Member's treatment of what she saw as an important element in his claim. [Tribunal Member]: When you said you were shot, what sort of weapon were they using? [Applicant]: I don't know. After that, when (indistinct) this pellet was removed. It was known as cartridge pellets of a 12-bore shotgun. [Tribunal Member]: How big was it? [Applicant]: Sorry? [Tribunal Member]: How big? [Applicant]: I don't know. It was something like chickpea size. [Tribunal Member]: Can you draw what size it is and give me an idea? That's bigger than a chickpea, isn't it? What size was it? [Applicant]: I said chickpea. I did not mention lentil. [Tribunal Member]: No. [Applicant]: Chickpeas are normally this size. [Tribunal Member]: Okay. So did you have one and not two? [Applicant]: Two. [Tribunal Member]: You had two pellets? [Applicant]: Yes - one in left calf and the other one in right thigh. One was in my thigh, my calf; the other one just injured me, wounded me, and then it fell down. [Tribunal Member]: Did you pick it up? [Applicant]: No, I didn't have time to pick up pellets because I was worried about the people. [Tribunal Member]: They're fairly big pellets. [Applicant]: Sorry? [Tribunal Member]: They are fairly big pellets. [Applicant]: But I'm not telling you exactly, I'm telling you that it was ‑ ‑ ‑ [Tribunal Member]: No, that's all right. Yes, okay. They're fairly big pellets and it was fired from a 12-gauge shotgun. Do you know how many pellets that would hold? [Applicant]: I don't know. [Tribunal Member]: Well, not many? Very few? You told the doctor that it was fired from 150 to 200 yards away? [Applicant]: I think so, approximately. I have no idea at all. [Tribunal Member]: That's right, okay. 150 to 200 yards away, and they were chickpea size pellets? [Applicant]: Yes, I think it was this size. [Tribunal Member]: That's all right. Well, it would be amazing if that could happen. [Applicant]: It has happened. It happened to me. [Tribunal Member]: Yes, you're saying that it happened. Now, it was a 12-gauge shotgun (indistinct) from 150 to 200 yards with reasonably large pellets. Do you know the range of spread of the shotgun? [Applicant]: I don't know. [Tribunal Member]: It has a huge range of spread. [Applicant]: Yes. [Tribunal Member]: Really huge? [Applicant]: It can be. [Tribunal Member]: Yes, it can be. In that huge range of spread, with very few pellets, two struck you? [Applicant]: I still feel that I was lucky to escape, because I was in a state of ‑ ‑ ‑ [Tribunal Member]: Yes, but I feel that the shotgun was the most unusual - with the wide spread and a few large pellets (indistinct) one person. [Applicant]: Because I was in a state of jump at that time. If I was not jumping, if I was normally walking in the range with the shot - I mean, when I have been sitting in front of you and delivering this interview ‑ ‑ ‑ [Tribunal Member]: The range of the shotgun would be, what, 20 metres? [Applicant]: If we talk about range, is it going into a square shape? [Tribunal Member]: It goes into a very wide shape. [Applicant]: It go in a square shape. [Tribunal Member]: No, it goes in a circle. [Applicant]: In a circle, yes. Anybody who is out of the circle ‑ ‑ ‑ [Tribunal Member]: Do you know how wide the circle is? [Applicant]: I don't know. [Tribunal Member]: It's huge. It's huge. So it's most unlikely. [Applicant]: Well, that's what happened. [Tribunal Member]: Yes, okay, you're telling me that's what happened with that size pellets, okay. [Applicant]: Yes. I have no absolute size of it, because I never went to a doctor and we didn't have (indistinct) this is what the dispenser told me, that this is from the cartridge of a 12-bore. [Tribunal Member]: It's from a cartridge? [Applicant]: Yes, that's what he said. [Tribunal Member]: What's different if it's from a cartridge? So the dispenser said it was from a cartridge? [Applicant]: From a cartridge. [Tribunal Member]: Okay. [Applicant]: We call it 'cartooz', and maybe our friend here can explain what is the correct - cartridge. [Tribunal Member]: It's a cartridge, okay. That's different if it's a cartridge. [Applicant]: Yes, it was a cartridge. That's what dispenser told me. [Tribunal Member]: Well, the wound is described as if it's from a pellet from a shotgun, not a cartridge. [Applicant]: Cartridge is being used in shotguns. 57 The exchange concluded in the following way: [Tribunal Member]: Well, how do you know they were firing at you? [Applicant]: Because I was injured in the result. [Tribunal Member]: If someone is firing a shotgun from 150, 200 metres away, they can't fire at you. They could have been firing at someone else. [Applicant]: But at that time, unfortunately, I was alone walking on this road. … [Tribunal Member]: Yes, but if someone was shooting with a shotgun, they would be shooting for it to kill them. They wouldn't be shooting from 150 to 200 yards. If they were shooting to really injure someone, it must have been someone closer. [Applicant]: They didn't ask me, madam, whether they want me to be closer or faster. [Tribunal Member]: No, they didn't, so you know ‑ ‑ ‑ [Applicant]: I was unfortunately - I came down off the bus and I kept walking. I didn't know they were there or their planning was to kill me, to harass me, to injure me, whatever their motive was. I was the victim and I got the force of it. [Tribunal Member]: It's really strange you forgot to mention that at the original interview, because you've got so many details now. [Applicant]: Yes. If someone ask me ‑ ‑ ‑ … [Tribunal Member]: You see, you could have been turned around and sent away immediately at the airport unless you could give them some really good information about why you considered yourself to be a refugee. … So you were fortunate, really, that you were able to stay. You didn't think to mention to them that you were shot at, which would be a very good thing to bring up if you wanted to apply for refugee status. [Applicant]: No-one told me, madam, this before, that this is a very good reason, to add this shot stuff. 58 When regard is had to the record of the hearing (on tape and in transcript) it is apparent that the Member argued with the applicant about his evidence as he gave it. To some extent, her questioning was plainly unfair. First, the applicant said that he did not really know what weapon had been used against him, the bullet size or the precise distance between him and his assailants. He was pursued on each matter, however, into an area that would have been more appropriate for an expert on ballistics and, as it turned out, upon the mistaken basis that he had been shot with a weapon of one kind rather than another. The details that she said were newly given mainly arose out of this manner of questioning. 59 The Member continued to conduct the hearing in this way when she turned to other subjects. Sometimes, she was sarcastic or impatient; sometimes, she spoke over the applicant; sometimes, she put matters to him that were incorrect; and sometimes she expressly stated her lack of belief. At about halfway through the hearing, she returned again to the by-election. The Member asked when the by-election was announced and the applicant said he could not remember. This led to the following exchange: [Tribunal Member]: What I asked was, when the by-election commenced and you couldn't remember, and I said to you - now, to me, in your claims this is very important, that your claims all centre around the by-election. But you can't tell me when the by-election was announced. [Applicant]: Because I did not have anything in mind that I am going to contest it. I come to know only when my friend approached me, that, 'I have a ticket in the by-election and we want you to help us.' [Tribunal Member]: I see. [Applicant]: That is the time when I just come across and get involved into the by-elections. [Tribunal Member]: Well, how long before the election did he approach you? [Applicant]: He come to me something like a month before. [Tribunal Member]: You told the previous tribunal that ‑ ‑ ‑ [Applicant]: 20 days to month, yes. [Tribunal Member]: How long? [Applicant]: Between 20 days to one month, he come to me. [Tribunal Member]: Well, that's a big difference. [Applicant]: It's a big different? [Tribunal Member]: Yes, 20 days to one month is a big difference. Can't you remember? I mean, you must have known how many days you were managing his campaign. [Applicant]: I did not kept the diary with me. I'm not a diary person. … I told you the truth. [Tribunal Member]: No, you ‑ ‑ ‑ [Applicant]: Yes, that I was there and he come to me, a number of the friends - they says, 'We have to help Mr Khan.' [Tribunal Member]: Now, that's new, that a number of his friends came to you and said, 'We have to help Mr Khan.' [Applicant]: Yes. They were all together, yes. [Tribunal Member]: Yes. That's a new claim. I must put that in. To allege, as the Member did, that there is a big difference between 20 days and a month is unfair. Further, her final remarks suggested that she was keeping a list of the new things the applicant said and, by implication, this was evidence that he was simply making up his story. 60 The Member appeared over keen to detect inconsistencies in the applicant's evidence. She perceived that the evidence concerning the removal of the shot was inconsistent with an account given to a medical expert. When it became apparent there was no such inconsistency, she failed to acknowledge her mistake. This contrasted with her practice of regularly commenting on matters that were unfavourable to the applicant's case (in a conclusive way and not to afford him an opportunity to respond). Whether or not she meant to, the Member tended to turn virtually all the applicant said against him. For example: [Applicant]: If the life of such an important person is so cheap it can be taken away (indistinct) I mean, people like me can be no problem at all. [Tribunal Member]: Well, you're still alive. Nobody has managed to kill you. [Applicant]: Because I'm here. 61 About two-thirds of the way through the hearing, the Member turned to the matter of the PPP candidate, Mr Khan. She observed that Mr Khan had not said that he was in hiding after the election. The applicant responded as follows: [Applicant]: Well, you want - he has his telephone number here. [Tribunal Member]: I don't want to ring him up. Why should I? [Applicant]: Excuse me, I'm simply - I'm not asking you to ‑ ‑ ‑ [Tribunal Member]: No, I'm telling you what he has written. I wanted a written ‑ ‑ ‑ [Applicant]: He did wrote ‑ ‑ ‑ [Tribunal Member]: That's right, he wrote. [Applicant]: ‑ ‑ ‑ a letter describing what was my job with him, what sort of support I rendered him. [Tribunal Member]: That's right. [Applicant]: That's what I told you before. [Tribunal Member]: But he said nothing happened to him. So he said that nothing happened to him because he always travels with armed students, remember? [Applicant]: Yes. During this exchange, the Member again spoke over the applicant and in an aggressive tone. Her "That's right" was no acceptance. She later described his account, especially that involving the shooting, as "quite implausible". 62 The Member showed a lack of sensitivity towards the applicant. While he clearly became distressed on occasion when asked about his wife and family, he did not allow this to prevent him from answering further questions. He was not, however, afforded an opportunity to compose himself. Some three hours into the hearing, when Ms Scalzo inquired whether the Member might afford the applicant a rest on account of his "very bad back", the Member responded, in part, "[the applicant] is an adult and can tell me …". As it turned out, the applicant was obliged to say that he needed to go to the toilet. This lack of civility could not of itself constitute disqualifying bias, but it provides the context in which other aspects of the hearing fall to be judged. 63 Shortly after the hearing resumed, the Member sought to explore the applicant's claim in the following passages: [Tribunal Member]: … Now, just a couple more things that I wanted to ask you about. Now, as I've said to you before, the victory of Sharif's party was so overwhelming. The victory of the person in the by-election was apparently so overwhelming that I have a great deal of difficulty believing that they would be so adversely interested in you because, as you said yourself, it was just a small amount that you did. [Applicant]: Yes, in the election campaign 40 workers of Peoples Party were kidnapped. If it is a minor thing ‑ ‑ ‑ [Tribunal Member]: Is there any evidence of that, that 40 workers were kidnapped? [Applicant]: The evidence is in relation to have some sort of police reports are not because no-one do that in Pakistan. [Tribunal Member]: Okay, so how come you weren't kidnapped if 40 were kidnapped? … [Tribunal Member]: Okay, 40 people were kidnapped and I said, why not you? Why didn't they kidnap you? [Applicant]: Yes, because - there were somewhere where they could kidnap them they would have. I don't know. I mean, they should have tried to kidnap me as well. I don't know. Or they just wanted to hurt me. … [Tribunal Member]: Nothing happened to you. 64 By this point, there can be little doubt that a fair-minded observer, properly apprised of the nature of the proceeding, would apprehend that the Member considered the applicant to be untruthful, and his claims implausible. There appeared to be nothing he could say that could tell in his favour: again, the Member turned whatever the applicant said against him. 65 In the last hour of the hearing, the Member revisited the applicant's evidence on numerous matters. She pursued him on apparently mistaken bases and on matters of seemingly little significance to his claim. She spoke over the top of him more than once. She returned to the shooting incident yet again, covering the same field as she had done earlier in the hearing, observing, "[t]here's a lot of shooting in Pakistan". She returned to the question of spelling, asking him to spell again the name of the candidate who was vacating his seat. At this stage, her irritation was patent. When, after a period, it appeared that there was no error in the applicant's naming, she observed, "I'm clear now". She did not acknowledge that she had been in error. Her peevishness is illustrated in the following exchange: [Applicant]: What is a very usual thing since the election or democratic system has started in Pakistan, why only this one family is always elected from this particular place? Is it the usual thing in democracy? [Tribunal Member]: Yes. [Applicant]: Really? [Tribunal Member]: Most people hold their seats for a long, long while. People often go into the same seat as their father. They have to be nominated. They don't just do it. But it happens in all sorts of electorates in Australia. [Applicant]: Well, in Pakistan's democracy it does not happen so simply as it happens here. 66 The hearing had virtually concluded when the Member said: … Okay, well, I've told you that I have a problem with (indistinct) not knowing the date of something that is so important in your life. I also have a problem with the fact that it was common for single candidates to stand in your constituency that you were talking about, as evidenced by that and by evidence from information handed to me by this young lady. I've mentioned other things about which I was concerned. I don't think I have anything more I need to ask you about except I would like to say that I think I have absolutely enough submissions to sink a battleship. You have sent in so much. I am not asking for any more submissions. I hope that you've covered everything that you want to cover. If you haven't, of course, let me know now but I don't think I could manage anything more. I'm snowed under with your submissions. 67 In this context, there was apparently little that Ms Scalzo might say on the applicant's behalf, notwithstanding that the Member had assured her that she would be given an opportunity to address her before the hearing concluded. (The Member dismissed her invitation to telephone Mr Khan and she expressed doubt that the experts would assist her.) 68 Before the hearing entirely ended, the Member did, however, apologise for "upsetting" the applicant's representatives at the commencement of the hearing. She also sought to explain her conduct of the hearing, observing that she had acted "out of fairness" to the applicant. In another case, statements of this kind might well allay any disquiet about a Tribunal's approach. It would not have done so in this case, because the difficulty with the hearing did not lie in the fact that the Member raised with the applicant matters adverse to him. Rather, the difficulty lay in the way she raised such matters with him from the outset of the hearing until its close - the aggressive and sometimes unfair style of her questioning, her adverse commentary on his evidence, her "talking over" his answers and interrupting him, and her repeated expression of disbelief in him and his account (in tone of voice, by innuendo and in express statements). (iii)After the hearing 69 On 14 June 2002, the Tribunal wrote to the firm, referring to certain country information concerning corruption in Pakistan, especially in business (which had been mentioned at the close of the hearing the day before) and its concerns about copies of documents that had been lodged on behalf of the applicant on 12 June 2002. The applicant's representatives did not succeed in obtaining any more precise statement of these concerns from the Tribunal. By letter dated 25 June 2002, they made a responding submission and, on 27 June 2002, filed further supporting material. 70 After the hearing, on 25 June 2002, Ms Scalzo wrote to the Senior Member of the Tribunal, formally complaining about the way the Member had conducted the hearing and requesting her to disqualify herself from determining the application. The Tribunal acknowledged receipt of the letter on 26 June 2002, but it sent no further substantive response until 4 July 2002 (the day after the decision was notified to the applicant) when the Senior Member effectively dismissed her concerns. the applicant's affidavit 71 It is, I think, unnecessary to refer in any detail to the other evidence on which the applicant relied. It should be borne in mind that, in an affidavit of 12 December 2002, the applicant affirmed, amongst other things, that he thought that the Member refused to question him about his case in the terms that he had put it and that she "was asking [him] questions that misunderstood [his] case". He also said: I felt that I wasn't being given a chance and that she didn't believe what I was saying. … . I felt strongly that this was intended to trap me into answering incorrectly about the later election. In asking for details like dates and spelling she was confusing me and making it difficult for me to answer. I tried to tell her that I am not a big dates person and that spellings in Pakistan are different. I tried to explain about the use of family and race names in Pakistan but she would cut me off or keep asking me the same question again and again. … I was not given a chance to talk about my case as I explained it in my statutory declaration. … . [T]he Tribunal did not give me the chance to give my positive case. … . In asking questions [the Member] would use language that was confusing. In regard to questioning me about being shot, she distinguished between words bullet, pellet and cartridge in a way that I did not understand at first. Her manner told me she did not believe I had ever been shot. … I was not able to explain what had happened because of this problem with the differences in the words which she expected me to understand and which for some reason she seemed to think made a difference. … Throughout the interview the atmosphere in the room was very scary. … . [The Member] asked questions and acted in a way that made me worried and frightened. As already noted, the applicant was not cross-examined. Having read the transcript and listened to the tapes of the hearing, I accept his evidence, especially as set out above. the parties' submissions 72 In addition to making their submissions orally at the hearing, the parties filed extensive written argument. Counsel for the applicant submitted that this was a case in which actual bias was shown. In further written submissions filed after the hearing (with the leave of the Court) she contended: [T]his particular RRT member demonstrated a closed mind: in her attitude leading up to the oral hearing from the time she was constituted as the member, her attitude during the hearing, her misuse of the hearing as nothing more than a series of 'puttage' to the applicant, her steadfast refusal of reasonable requests for adjournments made with the applicant's consent and her refusal to even telephone Mr Khan - who was plainly a key corroborating witness and whom she proceeded to characterise as a liar and part of a course of fabrication of evidence - and the complete absence of any consideration (as opposed to recitation) in her decision or at the hearing of considerable expert evidence. 73 The applicant's counsel also submitted that a fair-minded lay observer might well infer from the Member's conduct of the hearing that there was nothing that the applicant could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events on which he based his protection visa application. In her final written submissions, she submitted that: There was a pattern of questioning which amounted to no more than inaccurate puttage by [the Member] of statements alleged to have been made by the applicant to the first tribunal. There was no 'careful scrutiny' …: indeed part of the applicant's case (as put in primary submissions with examples) is that the scrutiny she gave was inaccurate and confusing, and that she deliberately refused to conduct the review as a de novo merits review. 74 The applicant also contended that the Tribunal's reasons were "no more than the culmination of a process and conduct". I observe that the reasons for the Tribunal's decision were lengthy. They set out, sometimes virtually verbatim, the applicant's evidence and referred to many, if not most, of the matters put to the applicant in the hearing on 13 June 2002, specifically noting what the Tribunal found to be the inconsistencies in the applicant's evidence. 75 In written submissions, the respondent's counsel contended that the Tribunal's conduct of the hearing was "fair and proper". He noted that, in this case, at the end of the hearing the Member specifically said, "I'll have to think about all of that very carefully". In particular, he submitted: [T]he Tribunal member conducted a thorough and detailed examination of the claims put forward by the applicant. In the course of this examination, she raised with the applicant many difficulties which she had with aspects of his claims, and challenged the applicant on some of his evidence. All of this was a necessary and appropriate incident of the conduct of an inquisitorial hearing. 76 The respondent's counsel observed that there was nothing to indicate that the applicant was overborne and that, on the contrary, he was "sometimes defiant in the giving of … evidence". In response to the applicant, he contended that: The Tribunal did not approach the hearing as involving little more than putting a series of inconsistencies to the applicant, and the inconsistencies that it did put to the applicant were not inaccurate. (Footnotes omitted) consideration 77 In order to determine whether, in this case, there was disqualifying bias, the Court must carefully consider all the circumstances in order to assure itself that the test is by a fair-minded lay observer. Accordingly, the Court must consider the nature of the Tribunal, the issues before it, and the conduct of all relevant participants in the proceeding. 78 It must be borne in mind that the method of the Tribunal is inquisitorial. That is, the Tribunal controls the fact-finding process, the examination of witnesses and the identification of issues. A person appearing to give evidence is not entitled to be represented or to examine or cross-examine any witness: see s 427(6). The Tribunal may, and commonly does, invite an adviser to make oral submissions towards the end of a hearing, or in writing after the hearing. Whilst an applicant may request the Tribunal to obtain oral evidence from a nominated witness, and the Tribunal must have regard to the request, the Tribunal is not required to comply with it: see s 426(3). The Tribunal has a wide discretion as to how it conducts a hearing. All hearings must, however, remain private and confidential, although, as will be plain, they are tape-recorded. 79 It must also be borne in mind that an applicant generally has a right to appear before the Tribunal to give evidence and present argument before a decision adverse to him or her is made: s 425(1). The hearing is, therefore, designed to afford (1) an opportunity to the applicant to give evidence and to put argument in support of his or her claim; and (2) an opportunity to the Tribunal to investigate the matter further. In their book, Refugee Law in Australia (Oxford University Press, 2003) Roz Germov and Francesco Motta said, at p 79: At the hearing the Tribunal may also seek the applicant's response to information obtained by the Tribunal that is relevant to the issues raised in the review. In addition, the applicant may be given an opportunity to provide any further information to the Tribunal that is relevant to their claims. The Tribunal will determine the timeframe in which any such information is to be lodged. The applicant will be given an opportunity to respond to relevant and significant material that is, or may be, adverse to their case. It will be for the presiding member, in the individual circumstances of each case, to consider the appropriate stage of the review at which adverse material is to be brought to the attention of the applicant and the manner in which this should be done … . 80 It is proper for the Tribunal to attempt to focus an applicant's mind on relevant matters, including matters adverse to his or her claim: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 591 per Northrop, Miles and French JJ. Plainly enough, in this case, the Member was required to test the applicant's claims and, in relation to credit, was entitled to have regard to discrepancies between the evidence given by him on 13 June 2002 and to the Tribunal, as earlier constituted. 81 Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re 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: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283. As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error. 82 I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 ("Applicant VCAT of 2002"): see [38] per Gray ACJ, North and Gyles JJ. 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)-(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. 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. It is, moreover, no answer to say that the applicant was assisted by a migration agent, if (as I find) the agent was led to believe that her participation was antithetical to his interests and that there was little, if anything, that she could say that might lead the Member to change her mind. Further, in this case, it is no answer to say that the applicant was not in fact overborne. Disqualifying bias arises because the Member has so conducted herself as to create an apprehension that she might not approach her decision-making with a mind capable of being changed by further evidence, information or argument. In any case, the applicant's evidence (which, as I have said, I accept) was that he was overborne in some degree. Finally, as noted already, the Tribunal's reasons for decision provide no answer to the applicant's case. 84 It goes almost without saying that a fair-minded lay observer would take a fair view of all the participants in the hearing, including the Member herself. Such a fair-minded person would fairly consider the Member's conduct of the hearing, bearing in mind the legal and other constraints on her. Any such person would appreciate the difficulty of the Member's task. Nonetheless, as I have said, I am constrained to find that, in this case, a fair-minded lay observer, who was properly informed, might reasonably apprehend that the Member might not have brought to the hearing a mind capable of being persuaded that the applicant's account was not a fabrication. 85 In view of my conclusion that the applicant has made out a case of apprehended bias, it is unnecessary to consider further his submission on actual bias. I observe that, in Ex parte H, the Court limited its finding in that case to apprehended bias in circumstances where (as here) there might be an apprehension, on the part of a fair-minded lay observer, that there was nothing that could be said or done to change the Tribunal's preconceived adverse view of the claimants. The High Court did not find that the Tribunal was actually biased against the applicant. some remaining matters 86 The applicant's counsel made much of the Tribunal's failure to receive oral evidence from Mr Khan. Notwithstanding the force of the applicant's submissions in this regard, I accept that, as the respondent submitted, the Tribunal was entitled to make a considered decision not to obtain oral evidence from Mr Khan and to decline the applicant's request: s 426(3). Leaving aside any disqualifying bias, no error appears in the Tribunal's failure to telephone Mr Khan. It was the applicant's responsibility to present to the Tribunal the material on which he relied to support his claim. The Tribunal was not obliged to notify him of any deficiencies in his case or doubts about his claim, in order to give him an opportunity to present further material: see Abebe v The Commonwealth (1999) 197 CLR 510, at 576 per Gummow and Hayne JJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at 115 per Gaudron and Gummow JJ; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, at 69-70 per Gleeson CJ and Hayne J; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539, at 555 per Merkel J. Further, leaving any apprehension of bias aside, no error is shown in the Tribunal's treatment of the experts' material. 87 Moreover, although it would have been open to the Tribunal to adjourn the review (see s 427(1)(b)), there is no error shown in its decision to continue with and conclude the hearing on 13 June 2002: cf Nguyen Do Vinh v Minister for Immigration & Ethnic Affairs (1997) 46 ALD 528, at 535 per Goldberg J. This case can be contrasted with such cases as SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377, at [35] per von Doussa J (where the prescribed time was not given). 88 Finally, I am not satisfied that the Tribunal failed to deal with the applicant's request that the Member disqualify herself before giving her decision. The Tribunal's reply stated that the Senior Member had raised the matter with the Member, who had declined to accede to the request. I reject the applicant's submission that I should infer from the date of the Senior Member's letter that the Member deliberately failed to consider the request prior to giving her decision. There is no warrant for such an inference. conclusion 89 Although the applicant has, in my view, made out his claim of apprehended bias, relief under s 39B of the Judiciary Act 1903 remains discretionary: see Ex parte H, at 435-6 and Applicant VCAT of 2002, at [45]. In this case, I would grant relief. 90 As in Ex parte H, the central issue in the case before the Tribunal was credibility. As their Honours said in that case, at 436: Where, as in the proceedings before the tribunal, the central issue is credibility, the decision-maker's assessment will often depend upon the demeanour of the witnesses and the manner in which they give their evidence. It cannot be assumed that the prosecutors would have received an unfavourable assessment of their credibility if they had had the opportunity to present their claims without repeated interruptions from the Tribunal affirming its lack of belief in their claims. Nor can it be assumed that they could not have given further details of events which might have supported their applications. … These considerations may not, of themselves, constitute a failure to provide the prosecutors with an opportunity to present their claims, but they constitute good reason why relief should not be refused on discretionary grounds. Similar considerations apply in this case. 91 The applicant has an entitlement to relief. The appropriate orders to reflect my conclusion are to quash the decision of the Tribunal and remit the matter for rehearing by the Tribunal, differently constituted. The respondent should pay the applicant's costs of and incidental to the application. In the circumstances, relief in the nature of an order for prohibition appears unnecessary. If there is any issue about the terms of these orders, the matter should be brought to the Court's attention (within seven days of this judgment) before the orders are entered. 92 According to the authorities in this Court, the effect of s 479 of the Act is to make it unnecessary and inappropriate for the Tribunal to be a party to the proceeding, even though the relief in question includes orders quashing the Tribunal's decision and remitting the matter to it for determination in accordance with law: see NAAA v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 287, at 289-294 per Sackville J; NAAG of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 135, at [60] per Gray, Moore and Weinberg JJ; and Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 per French, Sackville and Hely JJ. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Solicitor for the Applicant: Allens Arthur Robinson
Solicitor for the Respondent: Australian Government Solicitor
VFAB
Minister for Immigration & Multicultural & Indigenous Affairs
(2003) 195 ALR 24
(2003) 195 ALR 502
(2001) 179 ALR 425
(2003) 199 ALR 290
(2001) 205 CLR 507
(1997) 81 FCR 71
(1994) 49 FCR 576
(2000) 177 ALR 225
(2001) 206 CLR 57
(2000) 103 FCR 539
(2003) 198 ALR 59
(2002) 117 FCR 287
(2001) 185 ALR 489
(1990) 90 NSWLR 263
(1999) 197 CLR 510
(2000) 204 CLR 82