FEDERAL COURT OF AUSTRALIA NAEB of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 634 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 referred to NAEB of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 180 of 2002 MOORE J 24 JUNE 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 180 OF 2002 BETWEEN: NAEB of 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 24 JUNE 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 180 OF 2002 BETWEEN: NAEB of 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 24 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 11 January 2002 and handed down on 6 February 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is, subject to subdiv AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations, under the Refugees Convention Relating to the Status of Refugees of 28 July 1951as amended by the Protocol relating to the Status of Refugees of 31 January 1967 ("the Convention"). 2 I gave judgment in the matter on 5 September 2002 and dismissed the application: see [2002] FCA 1092. The applicant appealed. On 27 February 2003 a Full Court allowed the appeal: see [2003] FCAFC 25, because of the effect of the judgment of the High Court on 4 February 2003 in S 157/2002 v Commonwealth [2003] HCA 2. The matter was remitted to me for further hearing. That further hearing took place on 28 April 2003. I will not repeat all of what I said in my reasons for judgment of 5 September 2002 concerning the background against which the Tribunal undertook its review. These reasons should be read in conjunction with my earlier reasons. 3 The applicant is a citizen of Uganda. He told the Tribunal he attended school for seven years, at the completion of which he commenced work as a carpenter. In October 1994 the applicant married, and in April 1999 he and his wife had a daughter. Central to his account of his experiences in Uganda was his membership of an organisation called the Survival of Ugandan Youth Movement ("SUYM") which he joined after his father was shot and killed by military personnel in 1997. The aims of SUYM were to raise funds for the victims of government oppression and human rights abuses, as well as promote awareness of government abuses by erecting posters and holding meetings. The activities of the group were conducted in secret as members feared arrest by the authorities. After his father's death, the SUYM made contact with the family, providing them with money and helping with funeral arrangements. After becoming a member of the SUYM the applicant undertook tasks such as putting up anti-government posters and arranging for meetings of the group to take place. 4 The applicant was arrested (with other SUYM members) in 1999 when attending a SUYM meeting and he was held in detention. He was tortured and denied access to food, water or toilet facilities. Of the twenty-one group members arrested, seventeen were executed in prison. The applicant and five other people, however, escaped. He then travelled to Tanzania. 5 The applicant travelled from Tanzania to South Africa by stowing away on a boat. Once in South Africa he received assistance from a church group known as the Zoe Ministry, an international Pentecostal Church. A pastor who interviewed the applicant put his case before a Church committee, who then decided to help him. They did this by supplying him with a South African passport and an Australian visa. He was instructed to return the passport on his arrival in Australia, which he did. 6 After the applicant arrived in Australia and made an application for refugee status, he sought supporting documentation from Zoe Ministries in South Africa regarding his circumstances and the manner in which they had assisted him. Zoe Ministries provided the Tribunal with a letter dated 7 April 2000 in which they confirmed the applicant's claims relating to the assistance they had given him. Another letter (undated) was provided by Zoe Ministries after the Tribunal questioned the authenticity of the first letter, which had a spelling mistake and incorrect telephone number in the letterhead. The Tribunal also had before it a number of medical and psychological reports to the effect that the applicant had suffered physical abuse and is currently suffering severe post traumatic stress. 7 The Tribunal did not consider the applicant to be a credible witness. The Tribunal was not satisfied the applicant had been either involved with SUYM or imprisoned and tortured by virtue of that involvement. The applicant's account of how he travelled from Tanzania to Australia, via South Africa, was also considered by the Tribunal to be "far-fetched and implausible". It did not accept that he was assisted by Zoe Ministries, and found the letters on Zoe Ministries letterhead were not authentic. 8 The Tribunal also considered the medical evidence provided in support of the applicant's claims, and stated: I accept that he has scars and injuries which are consistent with him having been beaten or tortured in the past. However, for the reasons discussed above, I do not believe that his scars were the result of ill-treatment while he was in prison in Uganda because of his involvement with a political group called the Survival of Ugandan Youth Movement. I accept that [the applicant] suffers from post-traumatic stress disorder. Furthermore, it may be that this was caused by witnessing the murder of his father at some time in the past, or to mistreatment while in prison. However, I do not accept that this trauma was caused by witnessing the murder of his father in 1997 by members of Ugandan security forces who wanted to force his brother to join the army, nor to torture while in prison in 1999 for political reasons. When assessing [the applicant's] credibility I have been mindful of the advice regarding his state of mind and of the suggestion that this might cause him difficulty answering questions at the hearing. The only time [the applicant] appeared to have serious difficulty answering my questions was when he was unable to provide any information on recent political developments in Uganda. However, even if I accept that [the applicant] was unable to recall anything about political developments in Uganda during the time he was a political activist because he is suffering from post-traumatic stress disorder, this does not account for the other serious deficiencies in his evidence and does not alter my conclusion that he concocted his claims regarding the reasons for his father's death and his political involvement in Uganda. 9 The Tribunal concluded by affirming the decision not to grant a protection visa. 10 At the hearing on 28 April 2003, counsel for the applicant repeated a submission that had been made during the earlier hearing in this Court. It was that the Tribunal was biased in the sense that the way it conducted itself at the hearing before it on 4 December 2000 and dealt with the applicant's application gave rise to an apprehension of bias. No allegation of actual bias was made. I summarised these submission in my earlier judgment which I now repeat. It appears not to be in issue, and indeed was a matter about which the Tribunal made a finding in the applicant's favour, that the applicant was suffering from post-traumatic stress disorder. I was taken to the transcript of the hearing before the Tribunal member to illustrate that the member adopted an overbearing attitude towards the applicant, who was distressed. The Tribunal, it was submitted, should not have permitted the hearing to continue. In addition, a number of complex propositions were put to the applicant in what were described as long and complicated monologues in circumstances where the applicant's grasp of English was limited. It was submitted that the antipathetic attitude adopted by the Tribunal was all the more apparent from the audio tape of the hearing which was tendered. While I did not listen to the tape during or following the earlier hearing, I have now done so. I should add that it was apparent from listening to the tape that the transcript is incomplete in the sense that some things said to be inaudible are in fact capable of being understood and also in the sense that there has been some editing of the spoken word when things were repeated or put in a hesitating way, but recorded as coherent text. Some things transcribed, in my opinion, are simply wrong (for example, "I went to the records to complete" instead of "I went to the Red Cross to complain" on p 37). 11 My overall impression from listening to the tape was that the Tribunal member conducted the hearing in a way that balanced her desire to test the applicant's account with giving the applicant an opportunity to explain. The criticism concerning the "monologues" is, in my opinion, misplaced. Each instance involved either the Tribunal explaining matters that she thought needed to be drawn to the applicant's attention or summarising her impressions as she then held them. It is true that on one occasion the applicant was upset and on other occasions apparently incredulous and disturbed, but probably due to the fact that his account was being questioned. However it is not apparent to me that the Tribunal member dealt with the applicant with particular insensitivity. On most occasions her reaction was quite the opposite. She dealt sensitively, for example, with the applicant's obvious upset when he was discussing his family and young child. On at least two occasions when it was said the applicant was totally "at sea" or confused, the applicant was reacting to a summary by the Tribunal that was critical or unaccepting of his account. Both that process and that reaction can readily be accepted having regard to the Tribunal's overall function and inquisitorial role. 12 It is true that on many of the instances identified by counsel for the applicant (but by no means all of them), the Tribunal interrupted the applicant. However that was often to give the questioning a direction which plainly, in my opinion, the Tribunal member was entitled to do. At no point did the Tribunal member appear to be overbearing nor was she apparently stopping the applicant saying something that was important. The applicant spoke in a slow and deliberate way and I do not think the Tribunal member can be criticised for interrupting to give the overall questioning particular direction. On some occasions, when it was clear the applicant wished to make a point notwithstanding the interruption, he said "excuse me" and he continued to speak. 13 Except for the occasion when his family was being discussed, I did not discern that the applicant was disoriented or overwhelmed as his counsel now suggests. He appeared to have a relatively sophisticated understanding of the English-language (for example, when wishing to indicate "early 1991/1992" on p 7 he said "early 1991 stroke 1992" on p 7 or when he said that the SUYM had "consoled" his family on p 20) though his accent sometimes led to confusion (for example, "towards Congo" being initially understood as "to West Congo" on p 37). As I heard his evidence and account, he spoke with sincerity and conviction. But the Tribunal made an assessment of his account (which is its role) and rejected it having regard to the content of what he said and, amongst other things, its knowledge or understanding of circumstances in Uganda and South Africa. 14 Nothing, in my opinion, turns on the fact that the legal representative scheduled to attend at the hearing before the Tribunal was injured in a car accident that day and another legal representative attended. Firstly no complaint was made by the applicant or the representative who was present, secondly that representative appears to be a principal in the firm of solicitors acting for the applicant in any event, and lastly the Tribunal gave the applicant an opportunity, effectively at his request, to provide further submissions to cover matters he may not have addressed orally. It was clear from comments made that the applicant would have the opportunity to consult with the legal representative who had been injured. 15 Counsel for the applicant submitted that the manner in which the hearing was conducted when taken together with aspects of the way the Tribunal decided the matter reveals apprehended bias on the Tribunal's part. The requirements of this form of bias are readily established: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 537-538 [95], 548-549 [134]-[135], 564 [184]-[185]. The question is whether a reasonable or fair-minded observer, knowing the relevant facts, might conclude that the decision-maker might have been affected by pre-judgment or prejudice against the person complaining or might not have brought an impartial and unprejudiced mind to the task of deciding the matters that required decision: see also Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 158 [90]. As discussed, the way the hearing was conducted does not suggest, in my opinion, prejudgment or prejudice. While it is true that the Tribunal, in its decision (it was common ground that the Tribunal's reasons can be relevant when considering apprehended bias: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (supra) at [29] and [74]-[77]) was sceptical about aspects of the applicants account, its approach cannot, in my opinion, be fairly characterised as "super critical" and "super sceptical" as counsel for the applicant suggests it should be. Its findings concerning the reasons for the applicant's father's death, whether the applicant had been a member of SUYM and had been imprisoned and tortured as a result and whether 17 members of that organisation had been executed extrajudicially were open "on the material", even if minds might differ about those conclusions. 16 In my opinion, the applicant has fallen far short of demonstrating apprehended bias. The application should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 24 June 2003 Counsel for the Applicant: Mr M McAuley Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 28 April 2003 Date of Final Submissions 12 June 2003 Date of Judgment: 24 June 2003