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MIGRATION - Review of Tribunal decision - fear of persecution - credibility of applicant and witness - whether the Tribunal was biased in its decision - apprehended bias and actual bias - whether bias can be extrapolated from the existence of adverse findings alone - whether apprehended bias is excluded by virtue of s.474.

NAOZ v Minister for Immigration [2002] FMCA 277 (20 November 2002)

NAOZ v Minister for Immigration [2002] FMCA 277 (20 November 2002)
Last Updated: 12 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOZ v MINISTER FOR IMMIGRATION
[2002] FMCA 277



MIGRATION - Review of Tribunal decision - fear of persecution - credibility of applicant and witness - whether the Tribunal was biased in its decision - apprehended bias and actual bias - whether bias can be extrapolated from the existence of adverse findings alone - whether apprehended bias is excluded by virtue of s.474.



Migration Act 1958 (Cth) s.474

Craig v South Australia (1995) 184 CLR 163

NAAV v Minister for Immigration [2002] FCAFC 228

WADK v Minister for Immigration [2002] FMCA 175

WAEF v Minister for Immigration [2002] FCA 1121 at 34

NAEV v Minister for Immigration [2002] FCA 1092 at [22-24]

SCAA v Minister for Immigration [2002] FCA 668 at [37-38]

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

SAAE v Minister for Immigration [2002] FCAFC 307

NAEJ v Minister for Immigration [2002] FMCA 113

SDAA v Minister for Immigration [2002] FMCA 184

Applicant:
NAOZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 717 of 2002



Delivered on:


20 November 2002



Delivered at:


Sydney



Hearing Date:


8 November 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr V Wan



Counsel for the Respondent:


Mr M Wigney



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.00

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 717 of 2002

NAOZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Burma who arrived in Australia on 20 September 1996 as the holder of a student visa. On 11 January 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. On 15 March 2001 a delegate of the Minister refused to grant a protection visa and on 10 April 2001 the applicant applied for review of that decision by the Refugee Review Tribunal. The review was carried out and a decision was made on 31 May 2002. It was handed down on 25 June 2002. The decision affirmed the decision of the Minister's delegate not to grant a protection visa.

2. The applicant's reasons for claiming that he had a well founded fear of persecution for a convention reason arose out of his long standing opposition to the military government in Burma and his membership of the National League for Democracy. He claimed to have worked for the NLD gathering intelligence about government sympathisers for it between about 1991 and 1996 when he was advised to leave the country by an NLD leader Win Khet. After he came to Australia he continued his anti-government activities and took part in demonstrations held in this country. He also continued as an intelligence operative.

3. The applicant also claimed that his family had been harassed by the government in either 1997 or 1998 and again in 1999 because of his political activities in Australia [CB 84]. He claimed that if he returned to Burma he would be detained and tortured by the authorities due to his political activities in Burma and Australia. At the hearing before the Tribunal the applicant and Mr Khet gave evidence.

4. The Tribunal made findings upon credibility, which were adverse to the applicant and his witness. Whilst indicating that it did not consider it appropriate to take an overly stringent approach to questions of credibility it came to the view that the applicant's responses to Tribunal questions were so vague or contrary to accepted country information or so lacking in detail that it did not believe that they were credible and that some had been fabricated to enhance his application for a protection visa. In respect of the applicant's witness the Tribunal said:

"The Tribunal asked the witness to describe the applicant's "intelligence gathering" activities. Mr Khet replied that the applicant gathered information regarding Burmese spies in this country. The Tribunal discussed this claim with the witness but he did not recall details and he provided vague answers."

5. The Tribunal does not otherwise comment upon the witness' testimony.

6. The Tribunal did make a finding that the applicant had engaged in certain political activity in this country by attending demonstrations but relied on country information to come to the conclusion that attendance at a few demonstrations in Australia would not result in adverse attention from the authorities in Burma unless the individual involved in those activities persisted in criticising the Government. Finally, the Tribunal found:

"The applicant is not a political activist or a person committed to expressing his opinion against the military regime in Burma. It is the Tribunal's view that the applicant has only had minor and peripheral involvement in political activities since 1990 and currently he is not involved in any activity which will attract the adverse interest of the authorities in Burma."

7. These findings of the Tribunal were challenged by the applicant through his Counsel who submitted that by unreasonably declining to accept the statements of the applicant and his witness was brought to make a wrong conclusion upon the jurisdictional fact that the applicant did not have a well founded fear. The applicant argued that it was open to the Tribunal to have taken a different view of the evidence to which it did and that it should have done so. The applicant in a document entitled "Amended Application" addresses these matters which I allowed to be filed in court. I was taken to each one of what is described on page 2 of that document et seq as "STATEMENT OF CLAIMS". The claims described above are set out in paragraph 6(a) to (c) and 7(a) to (j). I do not think it is worth rehearsing these matters because I accept the submission put by Mr Wigney of Counsel for the respondent that what the applicant is trying to do is no more than dressing up an attack on factual findings as a challenge to an administrative decision. The applicant did not claim that there was no evidence from which the Tribunal could come to the conclusions that it did, only that there was evidence, which would have allowed it to come to different conclusions. The respondent also argued that the errors complained of by the applicant were errors of the type described by the High Court in Craig v South Australia (1995) 184 CLR 163 which the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 have clearly stated were protected by the operation of s.474 of the Migration Act. I accept that submission but because it is common knowledge that the High Court is considering the validity of s.474 believe that it is appropriate in a case which may not come on for hearing on appeal until after the High Court decision is handed down to indicate that I do not believe the matters complained of constitute jurisdictional error in the sense complained of.

8. The applicant also argued that certain findings of the Tribunal would cause the reasonable bystander to apprehend that the Tribunal was biased towards the applicant. In this regard he pointed to four findings of the Tribunal, which were also used to advance his more sotto voce claim of actual bias and should therefore be considered. The first was a comment made at [CB 84], which came immediately after some sentences dealing with the harassment the applicant claimed had occurred, to his family. The Tribunal then said:

"The Tribunal stated that it was aware that Burmese citizens living overseas are required to register with the Burmese authorities in the country where they live and to pay 10% tax while [ they] are living and working overseas. He was asked if he complied with these requirements. The applicant stated he did not. The Tribunal commented the authorities in Burma will be interested in discussing these matters with his family, particularly his decision not to pay the tax. The applicant did not comment.&qu;
ot;

9. This sentence which appears to be totally unconnected with that which has gone before was accepted by Mr Wigney on behalf of the respondent as "I'm unhappy". I think that concession was well made but I am not satisfied that the remark of itself would indicate to a reasonable bystander that the Tribunal was prejudiced towards the applicant. Far less would the remark constitute evidence of actual bias. The second part of the Tribunal's decision which was the subject of complaints occurred at [CB 86] where the Tribunal discussed with the applicant his alleged spying activities. The Tribunal stated:

"The applicant provided vague responses to the Tribunal's questions. Furthermore, the applicant's descriptions of his circumstances in Burma and Australia do not suggest to the Tribunal that he either had the opportunity or competence to undertake such a task. "

This is not a finding favourable to the applicant but it is one which is said to be based upon a consideration of relevant evidence and in particular the responses by the applicant to questions. The law on this matter was clearly stated by McHugh in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67]:

"If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence."

I would not be prepared to hold that this finding by the Tribunal constitute either apprehended or actual bias.

10. The third complaint related to a passage found at [CB 88] where the Tribunal said:

"The Tribunal has already decided that at the time when his relatives were questioned by the authorities in Rangoon, the applicant was not involved in any political activities which would attract the adverse interest of the authorities."

11. As I understand it the complaint about this phrase is that it appears to indicate some prejudgment. However, I am satisfied that the phrase really refers back to previous conclusions reached by the Tribunal following the hearing of the evidence.

12. The final matter is that:

"The overall conduct of the Tribunal's hearing including the Tribunal's inferences drawn from most if not all evidential issues in a way not favourable to the applicant when it might be open for a contrary view to be taken."

13. In this regard the authorities are clear that one cannot extrapolate bias from the existence of adverse findings alone. This was confirmed by Von Doussa J in SCAA v Minister for Immigration [2002] FCA 668 at [38]:

"In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27] an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias."

This dicta has been applied subsequently in SAAE v Minister for Immigration [2002] FCAFC 307, NAEJ v Minister for Immigration [2002] FMCA 113 and SDAA v Minister for Immigration [2002] FMCA 184.

14. So far as apprehended bias is concerned, and with the greatest respect to Federal Magistrate Driver in WADK v Minister for Immigration [2002] FMCA 175 at [38] I believe I should follow the two decisions of the Federal Court on this matter which hold that apprehended bias is excluded by virtue of s.474. (WAEF v Minister for Immigration [2002] FCA 1121 at 34; NAEV v Minister for Immigration [2002] FCA 1092 at [22-24]). I should, however, make it clear that even if this were not the case I would not have found apprehended bias from the extracts of the decision complained of.

15. It follows that I will not find actual bias either. If an applicant makes allegations that the Tribunal's decision was tainted by actual bias, there must be very strong evidence of this otherwise these allegations are likely to be considered mere attacks on the merits of a decision. Indeed, Von Doussa J makes it clear that this only occurs in the most rare circumstances because:

"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." (SCAA v Minister for Immigration [2002] FCA 668 at [37]).

I find it difficult to see how the Tribunal's decision was bias in this particular matter, and therefore must act cautiously so as not to open the doors to a merits review.

16. In these circumstances the applicant's claim for review must fail.

I dismiss the application. I order that the applicant pay the respondent's costs which I assess pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules in the sum of $4,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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