Singh, Sarbjit v Minister for Immigration & Ethnic Affairs [1996] FCA 902

CATCHWORDS

IMMIGRATION - application for protection visa - application for refugee status - judicial review - whether Refugee Review Tribunal's decision induced or affected by actual bias - Migration Act 1958, s. 476(1)(f) - whether Tribunal's decision not according to substantial justice and the merits of the case - Migration Act 1958, s. 420(2)(b) - a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias - irritation, impatience, or even sarcasm, do not suffice to establish actual bias - actual bias exists only where evidence shows preliminary views are incapable of being altered because the decision-maker has unfairly and irrevocably prejudged the case.

SARBJIT SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

G960 of 1995

LOCKHART J.

18 OCTOBER 1996

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. G960 of 1995

)

GENERAL DIVISION )

BETWEEN: SARBJIT SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

JUDGE MAKING ORDER: LOCKHART J.

WHERE ORDER MADE: SYDNEY

DATE ORDER MADE: 18 OCTOBER 1996

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the costs of the respondent of the proceeding, including reserved costs, if any.

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) No. G960 of 1995

)

GENERAL DIVISION )

BETWEEN: SARBJIT SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

18 October 1996

REASONS FOR JUDGMENT

LOCKHART J.

Introduction

The applicant, Sarbjit Singh, seeks a review by the Court of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of the Delegate of the Minister for Immigration and Ethnic Affairs who, in turn, had refused the applicant's application for a protection visa (which in effect is an application for refugee status). The applicant's application for a protection visa was made on 7 September 1995. The Tribunal was constituted by a single member (Mr Stephen Whitlam) pursuant to s. 422. Application to this Court is made pursuant to s. 475(1)(b) of the Migration Act 1958 ('the Act').

The primary ground for review of the Tribunal's decision asserted by the applicant is that it is said to have been induced or affected by actual bias of the member of the Tribunal who made the decision (s. 476(1)(f)). Secondly, the
applicant asserts that the Tribunal did not act according to substantial justice and the merits of the case, as it is required to do by s. 420(2)(b) of the Act. This was said by counsel for the applicant to constitute a failure by the Tribunal to observe procedures which are required by the Act to be observed in connection with the making of the Tribunal's decision (s. 476(1)(a)) or to constitute a decision which was not authorized by the Act (s. 476(1)(c)). The applicant relies on each of these grounds and seeks to have the Tribunal's decision set aside.

Facts

The relevant facts may be briefly stated. The applicant was born in 1972. He is a citizen of India and was a resident of the Punjab. He is an adherent of the Sikh religion. He partially completed studies for the degree of Bachelor of Arts. In 1993, he left India for Thailand, where he remained, save for brief trips beyond the border to renew his visa. In March 1995, he went from Thailand to Calcutta, stayed several days there, and returned to Thailand.

More recently, the applicant obtained a visitor's visa for Australia and arrived here on 5 September 1995. He was detained at the airport and refused entry. It appears that the reason for the refusal of entry was that the Australian authorities formed the view that the applicant had arrived in this country on a forged passport. On 7 September 1995 the
applicant applied for a protection visa, the criterion for which is that an applicant must be a non-citizen of Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s. 36). The applicant provided written material in support of his application on various dates thereafter.

As mentioned earlier, a Delegate of the Minister refused his application and the applicant then sought a review of the Delegate's decision by the Tribunal. The applicant appeared before the Tribunal on 4 December 1995 for an oral hearing which lasted some six hours. He was not represented. The Tribunal gave written reasons affirming the decision under review by it on 6 December 1995.

The applicant's case before the Minister's Delegate and the Tribunal was that he was a member of the All India Sikh Students Federation. He became 'Stage Secretary' of his branch of this organization in 1990. The organization was not proscribed by the Indian government, but it had been a proscribed body some years earlier during the height of civil disturbances in the Punjab. The applicant claimed that his involvement with this organization brought him into conflict with the police, that he had been arrested on several occasions in 1992, and that he had been beaten whilst detained by police. He claimed that he was interrogated and forced to confess to providing succour to militants and storing
armaments for them. The applicant claims that after he was arrested, detained and beaten on the last occasion, he was obliged to go to hospital for treatment.

Upon becoming aware of continued interest in him from the authorities, the applicant fled the Punjab. Subsequently, when he heard from friends with whom he had taken shelter that his home had been raided by police searching for him, he decided to leave India. He travelled to Thailand with the assistance of his parents. He was maintained there by the expatriate Sikh community and by friends. He travelled over the borders to obtain new visas more than once. He once tried to gain entry to the United States, but was arrested in Hong Kong and deported to Thailand; he had sought this entry by means of a false passport.

The applicant also made a trip to Calcutta in order to see whether it was safe to return to India. He decided that it was not safe to return to India and that Australia would provide a peaceful haven for him. He came here on 5 September 1995, intending to settle. Statements were made in his visa application concerning what he had been doing in Thailand and concerning his relationship with a woman who had acted as agent for him in respect of his travel here. Questions arose about the veracity of the claims made by the applicant.

The applicant gave evidence by affidavit and he was cross-examined. The member of the Tribunal who conducted the review (Mr Stephen Whitlam) did not give evidence.

This is the background to the matter.

The Applicant's Case

I turn to the applicant's case that the Tribunal member's decision was induced or affected by actual bias.

Counsel for the applicant accepted that judicial review of migration decisions is restricted to the grounds set out in s. 476 of the Act (including the ground of actual bias (s. 476(1)(f)). Counsel did not seek to establish a case of ostensible or apprehended bias because that is not specifically stated as a ground of review under s. 476; counsel accepted that ostensible bias is therefore impliedly excluded as a ground of review. Whether ostensible bias is available as a ground of review (for example, in aid of the ground that procedures required by the Act to be observed in connection with the making of a decision were not observed (s. 476(1)(a)), or whether some other ground specified in s. 476 is available were not questions canvassed in argument before the Court, so I shall say nothing about them.

The requirement that actual bias be shown or established was initially reserved for domestic Tribunals (Maloney v New
South Wales National Coursing Association Limited [1978] 1 NSWLR 161), the reason being that quite different considerations apply to voluntary bodies of this kind (at 170-171). Examination of the authorities shows that it is only a rare case where actual bias has been established. Such cases include those in which the member of the relevant Tribunal had an interest in the outcome of the proceedings, an interest which fell short of a direct pecuniary interest: R v Gough [1993] AC 646, per Lord Goff of Chieveley at 659.

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. Bias is not synonymous with absence of good faith; a person may in all good faith believe that he was acting impartially, but his mind may nevertheless be affected unconsciously by bias: Gough's Case at 659; and R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167, per Devlin L.J. at 187 (a passage approved by Lord Goff of Chieveley in Gough's Case at 659).

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: Khadem v Barbour, Senior Member of the Administrative Appeals Tribunal (1995) 38 ALD 299. (It must be remembered, however, that Gooliah is an ostensible bias case.)

The rationale for the doctrine of actual bias (also ostensible bias) leading to the disqualification of the person concerned is:

'an overriding public interest that there should be confidence in the integrity of the administration of justice ...' (Gough's Case, per Lord Goff of Chieveley at 659).

His Lordship also approved the statement of Lord Hewart C.J. in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 that it is:

'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'

It is obviously a question of fact in each case to determine whether or not the Tribunal member has been so biased that his decision cannot be allowed to stand. If
actual bias is proved, that is the end of the matter and the person concerned must be disqualified.

In most cases of alleged bias the party asserting bias relies primarily on ostensible bias because it constitutes an easier threshold to cross. The courts have not shown any strong tendency to find actual bias.

Where a tribunal has prejudged a matter before the conclusion of the hearing, that may amount to actual bias: Re Gooliah and Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224 (a decision of the Manitoba Court of Appeal); also S D Hotop, Principles of Australian Administrative Law, 6th ed., at 208.

It was held by North J. in Wannakuwattewa v Minister for Immigration and Ethnic Affairs, unreported, 24 June 1996, VG 451 of 1994 at 4 and 9 that an allegation of actual bias of a member of a tribunal:

'involves demonstrating that the Tribunal did not, in fact, bring an unbiased mind to the issues before it. It means that the applicant must show that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case' (4).

His Honour put the matter this way at 9:

'Remembering that actual bias involves the state of mind which prevents any persuasion to a view different to the one then held by the decision maker ...'

That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Gaudron and McHugh JJ. at 100. Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case.

It is important to keep in mind, when actual bias is alleged, that the matters upon which reliance is placed to establish bias must be considered in the context of the whole of the hearing before the decision-maker: Galea v Galea (1990) 19 NSWLR 263 per Kirby ACJ at 279. For bias to be established, the circumstances of the case must raise 'quite a substantial case': Khadem, per Hill J. Also, it is obviously permissible for judges or decision-makers to make their views known to a party during a hearing so that there may be an opportunity to fully discuss and ventilate the issues in the case: Khadem. It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case. Jacobs J. observed in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 294 that judicial 'silence' is a 'counsel of perfection'. And Brennan, Deane and Gaudron JJ. in Vakauta v Kelly (1989) 167 CLR 568 at 571 described the disclosure of a judge's preconceived views about the general reliability of a particular expert witness in the course of dialogue between bench and bar as something which:

'is so helpful in the identification of real issues and real problems in a particular case.'

Although their Honours also observed in Vakauta at 571 that:

'[o]n the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular ... witnesses could threaten the appearance of impartial justice.'

Distinguishing the line to which their Honours refer is the gist of bias cases. Its ill-defined nature is what creates the difficulty in their determination. It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account to determine whether a decision-maker had such a closed mind to critical issues in a matter that he prejudged the case against the party concerned.

As mentioned earlier, the hearing before the Tribunal member in this case occupied some six hours on 4 December 1995. The hearing was in private, as is required by s. 429 of the Act. Present at the hearing were the Tribunal member, the applicant, an interpreter, and a Tribunal officer.

A transcript was kept of the hearing and is in evidence. Also in evidence is another copy of the transcript, but with corrections made to certain pages. These corrections were made by counsel appearing before me for the Minister. The original transcript had been prepared from tapes taken by a court reporter (I assume the reporter was also in the hearing room). Counsel listened to the tapes over some six hours whilst following the original transcript. Where she found a disparity between the tapes and the transcript, she noted this on her copy of the transcript. It is this transcript as amended by counsel which is the record to which I have had recourse, by consent.

I was asked by counsel for the Minister to listen to the whole six hours of the tapes in order to hear exactly what the Tribunal member said, and so to understand the context, the tone and the manner of the remarks of the Tribunal member upon which reliance was placed by the applicant to establish actual bias.

What I did after the conclusion of the hearing was to play the tapes in private. I followed the corrected transcript as I listened to the tapes. I was assisted by the fact that counsel for the applicant had extracted from the transcript the particular passages upon which he relied in support of his case of actual bias. Hence, I listened fully and carefully to the parts of the tapes containing those passages and also to the parts immediately before and after the passages about which complaint is made. I did not listen to the whole six hours of the tapes, but fast-tracked approximately half the tapes - the parts of the tapes well before or well after the passages the subject of complaint.

It was important to listen to the tapes because much reliance is placed by the applicant in the assertion of bias on, not merely what was said by the Tribunal member, but the manner or tone in which statements were made - alleged laughter, sighs, mocking attitudes and sarcasm.

The Tribunal member is in a different position to a judge. The Tribunal is constituted by a single member (s. 421(1)). Members of the Tribunal are appointed by the Governor-General as either full-time or part-time members (s. 395); members hold office for periods specified in the instrument of appointment, but not exceeding five years (s. 397(1)); remuneration and allowances of members are assessed with reference to the holder of an office in the Senior Executive Service of the Australian Public Service (s. 399).

Before a Tribunal member embarks upon a hearing to review a refusal to grant a protection visa, the member must examine material contained in documents given to the registrar of the Tribunal to determine if he is prepared without taking oral evidence to make the decision or recommendation on the review 'that is most favourable to the applicant' (s. 424(1)). Such a decision is one where there is no other decision or recommendation that the Tribunal could make, and, in the Tribunal's opinion, there is no other decision the applicant would prefer the Tribunal to make it (s. 424(2)). Thus the Tribunal is required to form a preliminary view with respect to the issues in the case for that limited purpose. This is done by the Tribunal member who conducts the questioning during the hearing. It is not mandated by the Act that the Tribunal member conducts the questioning; however, in practise, I was informed this is what occurs. Therefore, it
must be borne in mind that the Tribunal member may well think that he should test the applicant's assertions of facts by detailed questioning, especially about matters which may give rise to findings adverse to the applicant in the absence of any appropriate explanation from him.

Also, the Tribunal, in carrying out its functions under the Act, is obliged 'to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick' (s. 420(1)). The Tribunal is required, in reviewing a decision, to be 'not bound by technicalities, legal forms or rules of evidence ...' (s. 420(2)(a)), and importantly, it 'must act according to substantial justice and the merits of the case' (s. 420(2)(b)).

These further matters must be borne in mind when considering whether the Tribunal member in fact was biased in the sense of having prejudged the critical issues in the case involved in the hearing before him.

Passages in corrected transcript alleged to establish actual bias

Counsel for the applicant relies on a large number of extracts from the transcript of the proceeding before the Tribunal member to support the case of actual bias. It is necessary that I turn to each one of them. I shall in each instance state the page of the transcript (that is the
corrected transcript) and then the particular passages from it upon which reliance is placed. Underneath that I shall state the comments made by counsel for the applicant, followed by the comments of counsel for the respondent. I shall then make my finding with respect to each particular passage. It must be remembered that the essential thrust of the submission of counsel for the applicant, however, is not just with reference to isolated comments, but their cumulative effect as well.

PAGE

This is at an early stage of the hearing before the Tribunal member. The applicant indicated earlier (p. 63) that he wished to submit certain papers to the member. The applicant said that the papers came from India to him, being delivered by some friends of the applicant in Australia.

'INTERPRETER

This material came from India.

WHITLAM

How, how did it get to you?

INTERPRETER

It came outside and the (inaudible) ... and it was delivered to me.

WHITLAM

So some people here in Australia gave it to you?

INTERPRETER

Yes sir.

WHITLAM

What, did they write it at home themselves or what?

INTERPRETER

It came by door, by post from India, and to my friends and they deliver these papers.

WHITLAM

Ah ... but some of this material is very old. Why has it taken this long for it to arrive?

INTERPRETER

Because nobody knew that I was here.'

Comment by counsel for the applicant

'Member refers to papers submitted by the applicant. His remark about them writing the material at home themselves is sarcastic and uncalled for.'

Comment by counsel for the respondent

'The comment about whether the material submitted was written at home is made in the context of the applicant giving vague answers as to the source of the material purported to be years old but which was only produced to the Tribunal on the day of the hearing.'

Finding

I see nothing here which by itself could be taken to constitute evidence of actual bias. I agree with the comment made on behalf of the respondent.

83 'WHITLAM

Yes you did. I've written it down here. Forced to confess to visits by militants and holding ammunition.

INTERPRETER

No sir.

WHITLAM

Well, I'm sorry I have to disagree on it. I mean I don't normally write down things that I don't hear.

INTERPRETER

(inaudible) but Sarbjit telling what actually happened with me.

WHITLAM

Well I hope you are, but I'm (Laughs) I have my doubts. OK, so. On the second occasion that you were arrested were you arrested at home?

INTERPRETER

Yes.'

Comment by counsel for the applicant

'The applicant tells the member that he is telling him what actually happened to him. The response by the member, together with the laughter, indicates that he is not taking seriously what the applicant has to say.'

Comment by counsel for the respondent

'The comment by the Tribunal was made in the context of inconsistent answers being given by the applicant. The tone does not suggest that the applicant is not being taken seriously. The Tribunal properly puts to the applicant that it has doubts about his evidence with respect to the claims of repeated arrests.'

Finding

I do not accept that this passage (in isolation or when read in the context of what preceded it and followed it) indicates that the member was not taking seriously what the applicant had to say. It certainly indicates that the member at that point was expressing doubt about the evidence with respect to the applicant's claims of repeated arrests; but that is not evidence of bias.

91 'WHITLAM

All right, OK. So (sigh) Are you sure you're not just making this up as you go?

INTERPRETER

What is it?

WHITLAM

Are you sure you're not just making this up as you go? Do you understand what I'm saying. (sighs) Are you sure that you are not just making this up, as you go?

INTERPRETER

No sir, I did not stay at one place.'

Comment of counsel for the applicant

'The member asks the applicant if he is sure that he is not just making it up as he goes along. This indicates that he thinks he is lying, but does so in a sarcastic manner rather than one designed to get at the truth.'

Comment by counsel for the respondent

'The tone at this point is not sarcastic. It properly expresses the concerns of the Tribunal after a long series of vague answers by the applicant about his movements in India.'

Finding

I would not describe the manner of the Tribunal as expressed in the transcript and on the tape as sarcastic. It does suggest that the Tribunal was concerned about the evidence of the applicant; but when read in context this is not surprising because of the series of somewhat vague answers by the applicant about his movements in India.

102-103 'WHITLAM

So what did you do in Calcutta?

INTERPRETER

I stayed at this Star guest house in Calcutta and I remained there for five days and I studied the situation and the circumstances. I found that the circumstances were not favourable to me and therefore I left India on the 11th March '95.

WHITLAM

And how did you study the situation in the Punjab while you're in Calcutta?

INTERPRETER

I met the people and people told me what was happening in Punjab and people ask, the Punjab police had raided in Calcutta and had arrested some boys from there.

WHITLAM

So, you say that you're a proclaimed absconder, but then you take yourself back to India. Going through the airport, when you go in as well as when you go out, I mean this is ridiculous. If you're worried about being picked up you should be worried about being picked up at the airport as well?

INTERPRETER

At Calcutta a person met me and who granted me that he would safely ahh proceed, collect me from the airport and who was an agent of taking things, goods from one place to another.

SARBJIT

INTERPRETER

He give me his goods, articles and I came to Calcutta and again he helped me to leave Calcutta.

WHITLAM

So, what are you saying this person helped you to get in and out?

INTERPRETER

That person helped me to come out of India, because two thousand dollars was paid to the Immigration people.'

Comments by counsel for the applicant

'Again, the member is laughing at the evidence given by the applicant. The member describes the applicant's account as ridiculous.'

Comments by counsel for the respondent

'There is no laughter heard on the tape at this point. The sound is of an exhalation. This occurs in the context of inherently improbable evidence given by the applicant that he returned to Calcutta to assess whether it was safe for him to return to the Punjab.

The Tribunals description of the applicant's evidence as to why he returned to India as "ridiculous" was in the context of a question to him about it, and was a fair and understandable remark in the circumstances.'

Finding

I agree with the comments made on behalf of the respondent.

109 'WHITLAM

But you got your passport in February '92, you didn't have any problems with the police until September '92?

INTERPRETER

I was I was a stage secretary of the Sikh Student Federation. I was under the watch of the police and the police was keeping a watch on me and a, therefore I got this passport and it was in ahh end of September '92 that the police arrested me.

WHITLAM

Yes I know. Well my information is that it is quite common to use agents in India and you told me yourself that your first problem with the police was September '92, so I don't see any reason why you would have had to worry about getting a passport in February in '92.

INTERPRETER

I got it through the help of an agent and I am telling truthfully as what happened to me.

WHITLAM

Well there are in fact penalties for lying, so I do advise you to be very careful in what you're saying.

INTERPRETER

As I am under oath I am not speaking anything which is untrue. I'm speaking what is true and what has happened with me.

WHITLAM

And um, were all of your applications, all of the applications that you have made for visas and for refugee status did all, did they all tell the truth?

INTERPRETER

Yes sir. They are true.

WHITLAM

So all of the things that you have submitted to the Tribunal in your claims are true?

INTERPRETER

Yes sir they are all true.'

Comments by counsel for the applicant

'The applicant had been giving evidence about getting his passport in 1992 and using an agent to do so. The member, without a proper basis, warns the applicant that there are penalties for lying. Especially in the case of an unrepresented applicant this is bound to put the applicant off giving a proper account of himself.'

Comments by counsel for the respondent

'The Tribunal's advice to the applicant that there are penalties for lying came in response to the applicant's previous answer that he was telling truthfully what had happened to him. It came in at a stage where the applicant had already admitted a number of mistakes in his applications for refugee status and a visa to visit Australia. The applicant replies in insistent terms that he is telling the truth. There is nothing in the remainder of his evidence to suggest that he is put off.'

Finding

I agree with the comment made on behalf of the respondent.

123-124 'WHITLAM

But why did, (sigh) why go to the bother of getting another passport but using the same name. What was the point of that?

INTERPRETER

Because it was duplicate.

WHITLAM

Yes but why, why bother. It's the same name?

INTERPRETER

Because the agent has put a new one in the passport of my name.

WHITLAM

Look (sigh) look I don't know if you're (sigh) I'm not going to spend too much more time on this, because, I regard it as a diversion, but (inaudible) why would you use a name, passport that just had the same name, what was, what was the point of it?

INTERPRETER

I left Bangkok on this passport but on reaching Hong Kong I produced the other passport and they (inaudible) authorities found that it was fake one and therefore they deported me again back to ahh..

WHITLAM

Yes I understand that, but I don't understand why you bother to get another passport using the same name. Why not just use this passport?

INTERPRETER

Because there is no visa for America on this passport. On the fake passport there was visa for America.

WHITLAM

OK, OK, all right see it's very easy to say isn't it.

INTERPRETER

(Laughs)

WHITLAM

So easy. Oh dear god. Remember I asked you give the answers that were brief and relevant. You know?

INTERPRETER

Sarbjit wants to, clarify, clear that what has happened with me.

WHITLAM

And who got that passport for you in Thailand?'

Comments by counsel for the applicant

'The applicant is endeavouring to give a proper response to questions. The answer is not as precise as the member would prefer, and it is met with sarcasm.'

Comments by counsel for the respondent

'The applicant has given lengthy and confusing evidence about travelling on a false passport to Hong Kong when he already had a genuine passport. The tone of the Tribunal is more of exhaustion and concern at the length of time required to elicit sensible answers than of sarcasm.'

Finding

I agree with the comment made on behalf of the respondent.

132-136 'WHITLAM

You spent two years in Thailand. Yet you, you would spend two months and then go across the border and then come. I mean you spent two years just doing that. What do you mean you you couldn't live in Thailand. You've proved that you could live in Thailand?

INTERPRETER

Because I was denied again ahh the visa. And on transit visa one cannot work, one cannot live on.

WHITLAM

So how did you support yourself in Thailand for those two years?

INTERPRETER

I lived in the Sikhs temple that is (inaudible) and I took free meals from the (inaudible) and my friends helped me for other expenses. And I wanted to live peacefully and, and in a dignified manner, therefore I came to this country.

WHITLAM

So, so you were living on handouts from friends all the time. Is that what you're trying to tell me?

INTERPRETER

It's true I stayed in (place) for three weeks at a (place) and I depended upon my friends.

WHITLAM

Um, I don't believe that?

INTERPRETER

Why?

WHITLAM

Well for example I noticed that these passports, whenever you left Thailand, you went right up to the north, to Laos. Now how did you, how could you afford that all the time. Every two months you were doing, I presume you went by bus did you. Or did you go by plane. How did you get up to (the border/Laboya)?

INTERPRETER

The same thing that I took money from my friends.

WHITLAM

So what, they knew that every two months they were going to be paying for you to go up north to get ahh a new visa?

INTERPRETER

Because I have to get visa, and therefore I had to cross border and get that ...

WHITLAM

Yes I know why he had to do it.

INTERPRETER

... otherwise I would have been deported to India.

WHITLAM

Now who paid for your airfare from India to Thailand?

INTERPRETER

WHITLAM

In May '93?

INTERPRETER

That money was paid by my parents.

WHITLAM

And how much money did you take to Thailand with you?

INTERPRETER

It was only $50 dollars.

WHITLAM

So, (sigh) you went to Thailand with $50 dollars?

INTERPRETER

WHITLAM

What's the problem. I don't understand. What's your problem, can't you translate?

INTERPRETER

(Laughs) Sorry, I am no sir. He said that when I leave the Thailand then it was $50 dollars with me sir.

WHITLAM

Well how much money did you have with you when you left India to go to Thailand. In May '93?

INTERPRETER

When I left Delhi for Thailand I have got only $50 dollars with me.

WHITLAM

Right. And how did you expect to live then in Thailand?

INTERPRETER

Because there was imminent danger to my life and therefore I got money in from my relatives and my parents paid for the other travelling expenses and I left India for Thailand.

WHITLAM

Now look you, I'm sorry but you must answer the question that I ask you. How did you expect to live in Thailand on $50 dollars?

INTERPRETER

I know that I have already answered that there is a Sikh temple, a Sikh church that is (inaudible) in Thailand, in Bangkok and there I could live. And there I lived.

WHITLAM

Well I thought you lived above a restaurant and then in a guest house?

INTERPRETER

My parents arranged the money and first I lived in the guest house.

WHITLAM

Well $50 dollars wouldn't pay much for the guest house would it?

INTERPRETER

then I got money from my friends there and I, in this way I lived there.

WHITLAM

I mean you must think we're stupid or something?'

Comments by counsel for the applicant

'The applicant is trying to explain how he lived in Thailand. The member patronisingly describes him as "living on handouts", and immediately indicates his disbelief.

The applicant is trying to answer the member's questions and to put his case. The member's response is an inappropriately aggressive one. He indicates, bottom 136, that he takes personal affront at the evidence given by the applicant. This indicates his concluded belief that the applicant is lying to him.'

Comments by counsel for the respondent

'There is nothing patronising in the Tribunal's tone when the applicant is asked about "living on handouts". The Tribunal put proper questions to the applicant after the remark about it's disbelief which showed the reasons for its concern and gave the applicant an opportunity to respond.

The tone of the Tribunal's remarks is more of exasperation than aggression. The applicant is claiming to have travelled from India to Thailand with only $50.00 to support himself. The evidence was far-fetched at this point, which drew the exasperated response.'

Finding

I agree with the observation made on behalf of the respondent, but the response at the bottom of page 136 by the member - 'I mean you must think we're stupid or something?' - was unfortunate and gives some support to the argument advanced on behalf of the applicant.

149-152 'WHITLAM

Ohh what did you give her money for?

INTERPRETER

Because I could not live in Bangkok for long and therefore I gave her money and she told me that she would get residence ahh visa for me in Australia.

WHITLAM

Um. When you went to Calcutta in March who paid for the airfare?

INTERPRETER

They are my friends and who paid for me.

WHITLAM

These are very generous friends aren't they?

INTERPRETER

That's it, it's true. They gave me money and I ...

WHITLAM

Didn't they suggest that you just make a phone call instead. That a phone call would be cheaper than an airfare?

INTERPRETER

Because, I, apprehended that my call on the telephone would be recorded and then the soldiers would know that I was coming back.

WHITLAM

I'm just amazed that you can say these things frankly. I mean do you really think that we are so stupid that we would believe that?

INTERPRETER

What I am telling, I am telling the truth.

WHITLAM

Yes, well unfortunately on so many of the occasions when you have told things, either in forms or in other things, it has not been the same thing, so some of it must have been lies?

INTERPRETER

There's no (inaudible) sort of lies sir.

WHITLAM

Well you see I don't think it's good enough for you to say, Oh an agent filled that in or someone else did that for me. Oh you see I think sometimes you have to take some responsibility for the things that are done by you or on your behalf. You can't just blame it all on other people.

INTERPRETER

So what I'm telling I am telling the truth.

WHITLAM

Did you go to a wedding in Bangkok in August, this year?

INTERPRETER

WHITLAM

Or in Thailand?

INTERPRETER

I was in Thailand, Bangkok in August and from there I had one yeah?

WHITLAM

I know that, but please answer my question. If you do not answer my questions, if you deliberately avoid giving answers to the questions I will have to simply assume that you are lying and that you do not want to tell the truth?

INTERPRETER

Well I'm not telling a lie. What has happened with me I am telling you.

WHITLAM

Well just answer my questions then. Now did you attend a wedding in Thailand in August?

INTERPRETER

I do not attend any wedding, but they did warn me that if anybody asked at the (inaudible) Australian embassy and then tell them that I attended the wedding.

WHITLAM

So you mean, in other words you are prepared to lie?

INTERPRETER

But at that time of getting the visa the agent told me, he detailed me to do so and that I did.'

Comments by counsel for the applicant

'This exchange also indicates that the member appears to be somehow personally affronted by what he sees as the applicant's lies. This response to the applicant was bound to deter him from giving a proper account.

This exchange indicates that the member has made up his mind that the applicant is deliberately lying to him.'

Comments by counsel for the respondent

'The remarks do not suggest that the Tribunal was personally affronted by the applicant's evidence at this point. It was an expression of incredulity after evidence from the applicant that his friends financed his "fact-finding" trip from Thailand to Calcutta without suggesting that the applicant obtain his information on the conditions in India on the telephone. The applicant was not deterred from giving a proper account of his case thereafter as his subsequent evidence demonstrated.

There was an error in the transcript at this point. The word "correct" was not used by the Tribunal. The Tribunal said 'If you do not answer my questions, if you deliberately avoid giving answers to the questions I will have to simply assume that you are lying and that you do not want to tell the truth'. This was a proper warning to the witness, in a similar fashion to the one given by the Judge in Galea and accepted by the Court of Appeal in that case as proper.'

Finding

I agree with the comment made on behalf of the respondent.

159-161 'WHITLAM

Well it must have been a bit small because you said that you became the stage secretary in 1990 but it was not until September '92 that the police really bothered you, almost three years later?

INTERPRETER

I was involved, I, I, had some problems with the police but when there was extreme they might have (inaudible)

WHITLAM

Hm. Um. And in your application on the 7th September you talked about um Chief Minister of Punjab being blown up?

INTERPRETER

I have written that he was ahh killed by the police.

WHITLAM

No it doesn't, it didn't say that. It said that what, why would the Chief Minister of Punjah be killed by the police (laughs)

INTERPRETER

WHITLAM

Oh what was it Mr Gill (sp?) in person?

INTERPRETER

Ahh it is from the news items from London. Doctor (name?) Singh has written that ahh the place where (name? Singh) was killed not even as ....

INTERPRETER

(inaudible) and it was with the connivance of the police that he was killed and undergoing there is, there is rivalry between the police and the, ahh and the Chief Minister that he was killed.'

Comments by counsel for the applicant

'The member resorts to mocking the applicant's evidence.'

Comments by counsel for the respondent

'This remark was made in the context of the Tribunal pointing out that the applicant's evidence was incorrect. The tone is light-hearted and incredulous, rather than "mocking".'

Finding

I agree with the comment made on behalf of the respondent.

176-178 'WHITLAM

Yeah I know. Yes but you see what I'm saying is this document was produced or given to the tribunal or the department two months ago and it, the date on it is the 13th of September. So it was supposedly a very recent document. But all it says is that you were a member of the Federation. Whereas this document which is supposedly three yeas old says many more things, you see and that ..?

INTERPRETER

WHITLAM

I don't believe this?

INTERPRETER

That certificate was sent by a different (relation) to me. And this certificate was in my house and which was sent by me, parents to me.

WHITLAM

Well look you see, what I'm saying and I think you understand what I'm saying. What I'm saying really is that, if this document was really genuine if, if, if both of these documents were genuine then I believe that the more recent one would have said, would have given more, more information, because you know it has the full story but, it, it seems to me that the, the only reason that this one gives a lot of information is because, someone thought oh dear you know, his, I don't think his applications going to be successful. We better put as much as we can in this bit of paper and then they might believe him. And ahh I'm afraid it doesn't work, because comparing these two documents just makes it quite clear.

INTERPRETER

It is not a false one sir, it is a genuine and what has happened with me I have, it is recorded on it and which I have submitted to you.

WHITLAM

But you see I believe that if you really had held an important position in the Federation and if you really had been tortured and arrested by, by the police those things would have been mentioned in this one, but nothing at all was said in this one?

INTERPRETER

But it is the first one and ahh they could not write again and again the same thing.

WHITLAM

They couldn't what?

INTERPRETER

Write the same thing again and again.

WHITLAM

Ahh no, precisely, definitely.

INTERPRETER

... member ... (inaudible)

WHITLAM

You see But look in this one they just say oh he's a permanent member of the association. He's a hard working young man, he's an asset you know we wish him all success. Those are not the things you say about someone who is in real danger or who is ahh who's been a prominent member. They would say that, why didn't they say in that one that you were a prominent person or that you'd been arrested. They didn't say any of it you see?

INTERPRETER

Because they have already written and they did not know, they did not want to write it again.

WHITLAM

Well look I'm sorry I, I think you know what I'm saying I, I don't see any point in repeating it again.

INTERPRETER

WHITLAM

(Sighs) And then you've got this letter from ahh also from October '92 supposedly, um, which talks about you being arrested and mistreated and um, um, but I mean it doesn't give any, it doesn't give any dates or. I mean this is supposedly from an advocate, but it doesn't give you know, advocates are trained to be precise and to give proper details. It doesn't. It doesn't given any dates. It doesn't give the frequency of the arrests or anything like that. I mean it looks like a document that has just been written so what ever you said would seem to be supported by this. It's so imprecise that it supports everything or nothing.

INTERPRETER

What has happened with me, what, what police has, it is written me. It is written there in it.

Comments by counsel for the applicant

'The member has a final, concluded view that the applicant is lying and that the documents he has put before the Tribunal have been fabricated. He lectures the applicant as to his views rather than conducting an examination in search of the facts.

The exchange continues, the member continuing to lecture the applicant as to his views, and now laughing at what he thinks are the matters leading him to conclude that the documents are bogus.'

Comments by counsel for the respondent

'The Tribunal properly puts its view that certain documents are fabricated to the applicant, and its reasons for this view, and the applicant given an explanation. There was nothing improper in this. There is no laughter at this point, despite the observation to the contrary in the transcript at p 176 and 178.'

Finding

I agree with the comment made on behalf of the respondent.

182 'WHITLAM

Now hang on. Now remember I said I'm talking without interruption, OK. Now please we'll be here as long as we need to be.

INTERPRETER

WHITLAM

I can stay here all day if that's what you want. We're here to serve you, you know. We're just trying to get the truth and if it takes that long that's how long we'll take. But I think it is possible to do it quicker and more briefly if you just co-operate?'

Comments by counsel for the applicant

'The member, without foundation, accuses the applicant of refusing to cooperate.'

Comments by counsel for the respondent

'The Tribunal does not accuse the applicant of refusing to co-operate. The Tribunal is trying to ask a question and is interrupted by the applicant.'

Finding

I agree with the observation made on behalf of the respondent.

184 'WHITLAM

No I don't think that will work I'm afraid because these documents say you were kept in illegal confinement until 10th October '92, I mean you know it's quite clear that it is continuous according to this document

INTERPRETER

WHITLAM

So.

INTERPRETER

WHITLAM

So you know I've just shown that these documents can't be believed. Either you can't be believed or they can't. Or maybe both (Laughs).'

Comments by counsel for the applicant

'The member adopts a mocking tone in indicating that as he sees it, he's proved to the applicant that the documents are false.'

Comments by counsel for the respondent

'The tone is not mocking at this point. The Tribunal is properly putting to the applicant that a document which he has produced contradicts his oral evidence.'

Finding

I agree with the observation on behalf of the respondent; but I must make a further comment. It is unfortunate that the Tribunal member made the comment which appears last in the passage cited above, and this provides some measure of support for the applicant's case.

185-187 'WHITLAM

But that was supposedly after your third arrest, where as here it talks as though the one arrest went from the end of September until the 10th and then you absconded. Now you see that can't be true. What you have said and what this says are two different things.

INTERPRETER

I was arrested in September and then released and then again, again, and then again for 3 days.

WHITLAM

I know. I know that's what you say because I was here and asked you questions which led to you telling me that. So I know all that but I'm saying that that's very different from what's in here. So if you're asking me to believe the things that are in these documents and yet these things are different from what you're telling me today then ah I just have to believe that you are prepared to say or produce anything which you think will help you. No matter how contradictory.

INTERPRETER

They were arresting me and then releasing me for 2 days and then arresting me so that release was of no consequence.

WHITLAM

No I don't think that will work I'm afraid because these documents say you were kept in illegal confinement until 10 October 92 I mean you know it's quite clear that it's continuous. So, you know I've just shown these documents can't be believed. Either you can't be believed or they can't be, or maybe both. (laughs). You see most of the documents that you've given me today are two sorts. There's the sort which are supposedly 3 years old but which look very different from other documents you know which have different information from other documents you've produced or, hang on, hang on, and then there are the documents which have more recent dates but which just don't, don't compare with the other information you've provided, you know, they're contradictory. And also, one other thing, and also all of these documents have been produced at such a late stage that it is reasonable to presume that in fact they've been produced at this late stage because perhaps they didn't even exist and they've simply been created since you knew that this hearing was going to be on today, And you've put, or someone has put old dates on them. I mean that's what it looks like.

INTERPRETER

My parents would not think of it that I was producing them for the hearing.

WHITLAM

What do you mean? What does that mean?

INTERPRETER

These documents are not new, and I did not tell them that they would be used in this way. They were already in existence and they (inaudible) newspapers.

WHITLAM

Ah, ha. All right.

INTERPRETER

It is 3 years before that I left my country, and this affidavit tells me what is happening with my parents now about the past there could be some mistakes.

WHITLAM

Well, I don't know about mistakes. I mean, you know, your whole case is full of conflicting information, you know. You'll claim one thing now and another thing later and then another thing. And, I mean, it really just looks as though you are prepared to sign anything to make any claim as long as you think it will help you in this application for Refugee status.

INTERPRETER

I have told you what has happened and it is a true aspect. But as far as the agent's are concerned they get money and I paid them money...

WHITLAM

That's not true.

INTERPRETER

.. and they say to sign here and here and you'll get result, (just fill in that thing) and I have to sign. Because I fear and it's a well founded fear and there is imminent danger to my life because what has happened to me in the past and I fear that again it will happen with me.

WHITLAM

But, but you know you were able to leave your country in May 93 without a problem. You were able to go back in March 95 and then leave again, all of that without any difficulty, I mean how can you say that there is a well founded fear for you? There's proof that on 3 occasions you were able to come in and out with your passport in your own name without any problem.

INTERPRETER

Because when I went to get back out and I knew that is what was in the future for me and I spent money and came back and if I did not have money I would have been eliminated this time by now.'

Comments by counsel for the applicant

'The member continues to argue his views against the applicant. He is no longer conducting a hearing of the applicant's case but giving a lecture as to his conclusions about the applicant's case. The applicant is left to endeavour to put his evidence to the member when there is some small opportunity.'

Comments by counsel for the respondent

'The Tribunal is putting to the applicant his concerns about the veracity of documents and the conflicts in his case, particularly the documentary evidence. The applicant puts his reply that his agent was paid to fill in certain documents. He was given the opportunity, which he took, to answer these concerns.'

Finding

I agree with the observation made on behalf of the respondent.

197 'WHITLAM

You're, you're just amazing to say some of these things. I mean really! You must think we are incredibly stupid to believe this sort of thing. Your old passport showed that you were a Sikh, and it was replaced with this one, so the embassy which gave you this saw this. So they knew that you were a Sikh so don't try and tell me you weren't or that they didn't know or something like that. Really!

INTERPRETER

It is what the agent has told me. They did advise me to be clean shaven then, so I did, that's all.

WHITLAM

Oh look, I mean, you're, you're just saying, you seem to be saying that you know that the agent is the person who is manipulating you all the time. I believe you knew what you were doing. And I can't believe that the Indian embassy did not know that you were a Sikh. I mean it's just ridiculous for you to claim otherwise. I'm, I'm just amazed that you keep making this sort of statement because it, it's just not supported by anything.

INTERPRETER

It was on the advice of the agent that it would be much easier to get the passport if you remove you hair. So, I did it. Because I wanted to leave that country and go elsewhere.'

Comments by counsel for the applicant

'The member indicates once again that he is personally affronted by what he sees as the applicant's lies.'

Comments by counsel for the respondent

'The Tribunal expresses incredulity at the evidence, not personal affront.'

Finding

I agree with the comment made on behalf of the respondent.

202-4 'WHITLAM

If you really were detained 3 times in the Punjab the authorities thought so little of you that they couldn't bother detaining you longer than about a week, I think was the longest case you mentioned. 6 days was the longest, I mean really. I mean that material that was read to you showed that if the authorities seriously thought that you were of interest to them they could have detained you for years. Instead they detained you for 6 days on one occasion and 3 days on another, I mean you know really!

INTERPRETER

It was because of my parents spending money that I got released from this. They got the money but then they declared in order to save themselves, that I had escaped them from the custody. And they have told me in many (similar) cases, and such cases. Doctor (inaudible) ... a chairman of the (inaudible) said in the newspaper in a statement that there was a (inaudible) between the Punjab police and (inaudible) Bian Singh or some branch (inaudible) or senior police officers and that led to his assassination.

WHITLAM

So what, what is the relevance of that to you? You see, you've got to talk about your case not about history.

INTERPRETER

That I want to prove that the police is, and is doing likewise. That is in relation to the reports. That is after the assassination of Bian Singh (sp?). It was announced that he was, that his killing was, (inaudible) has claimed responsibility. The police manipulates some of these things and just damages the Sikhs.

WHITLAM

Right. OK.

INTERPRETER

In 92 when the election was in Punjab the Sikhs boycotted and only 9 percent people voted and with those votes that's how he became leader.

WHITLAM

But what is the relevance of this! Will you please try and be relevant. Look, you are wasting our time and I, I do not think it is in your interests to ramble on and on and on about Sikh history or certain events and things unless they are relevant to your claim. You are claiming that you are in danger if you go back to India. But you've been back once all ready and nothing happened to you. You see! I mean, this is your problem, you have to ... you have several big lacks of credibility in your case.

INTERPRETER

If I go back and I will be not spared even at the, on the entry in India. I will be arrested at the airport itself. I do not have money to give them as bribe and to get myself free at this time. There was a (inaudible) who was killed there and because he did not have money to pay to them.

WHITLAM

I've spoken about that and I've said that I don't believe you will have that problem because you have shown consistently your ability to raise large amounts of money from your friends or relatives.

INTERPRETER

That means if I do not get money that means it is my death.

WHITLAM

Look, I'll tell you what a lot of this does means it means that I think that so many elements of your case lack any credibility that it is very hard to believe that you are in any danger at all. In fact, I'm not sure that you were ever arrested because so much of your case is quite clearly contradictory with other parts, I mean even the, even the wit, even the documents that you produced today do not agree with what you have told me today. Do you realise how, do realise how damaging that is to your case. That you can't even manage to produce documents that support what you say.

INTERPRETER

I am telling as what has happened with me truthfully and if you don't (believe) anything then what can I show you that ah

WHITLAM

You see, the problem is that on too many occasions you, or the people acting on your behalf, have given different versions of things. And that makes it very, it makes it impossible to believe your total story, frankly. You've also claimed that your father has been tortured or arrested and things like that. But you know I don't see any reason to believe these things because so much else that you have said has been contradictory. I mean you know you've dug your own grave, really, in this matter.'

Comments by counsel for the applicant

'Again, the member is lecturing the applicant as to his conclusions rather than conducting a hearing.

Two statements by the member are eloquent of his views; "Look, you are wasting your time ..." p 203, and "I mean, you know you've dug your own grave, really, in this matter." p 204'

Comments by counsel for the respondent

'The Tribunal has been asking the applicant to comment on material put to him by the Tribunal and he is giving irrelevant answers. The Tribunal is not lecturing the applicant. It is putting to the applicant that the independent material does not support his claims.

The Tribunal says at p203 "Look, you are wasting our time" [not "your time" as put in the applicant's submissions]. The applicant was giving irrelevant, rambling answers at this point. The passage at p204 "you've dug your own grave" comes at the end of the hearing and in it the Tribunal sets out its view of the problems in the applicant's case. The applicant is then given an opportunity to say anything else. The respondent submits that this passage does not constituted "prejudgment", given its location at the end of the hearing.'

Finding

I agree with the comment made on behalf of the respondent; but an additional point must be made: the comment 'you've dug your own grave' is an unfortunate one for the Tribunal member to have made, although it was made towards the end of the hearing, and I can understand why the member would have been, particularly at that point, feeling quite exasperated by certain parts of the evidence given by the applicant.

Counsel for the applicant submitted that this material when taken together as a whole establishes that the Tribunal member had either made up his mind unfavourably to the applicant very early in the hearing or during its progress. Accordingly, the hearing was really a hollow one because the member demonstrated that he had an immutable view before the applicant had an opportunity to put his case. The applicant, it was submitted, did not have a true opportunity to put his case in its best light during the hearing because the member had made up his mind against him. In these circumstances the decision could not be one based upon the material the Tribunal was bound to consider, but indicated actual bias against the applicant.

Further Findings

I have also borne in mind evidence by the applicant, which I allowed to be given over objection, both in his affidavit and which was substantially confirmed by him in the witness box. The applicant said that during the course of the hearing he did not think the member was listening to what the applicant was saying to him; that he spoke to the applicant in
a manner which instilled fear in him; and that he spoke very rudely to the applicant, and in an arrogant manner, as if he were trying to scare the applicant. The applicant further said that the member spoke to him in an arrogant manner as if he had made up his mind already and would not listen to what the applicant had to say. He said that the Tribunal member frequently laughed at his evidence. He felt that the member was mocking him. When the Tribunal member did not laugh at him he smirked when he gave his answers, being very 'off-putting' to the applicant, and meaning that he was not able to say what he wanted to say about his case. He said he had the impression that the member was treating the hearing as a joke.

I do not think the corrected transcript supports these views of the applicant, although I am of the opinion that the applicant was truthful when he gave his evidence to the above effect.

It is a troubling matter, because justice must not only be done, it must also appear to be done. Having read the transcript and heard all the oral evidence and read the affidavits and documentary evidence, I am satisfied that the hearing was somewhat robustly conducted by the Tribunal member; but he must have suffered a considerable amount of frustration because of the evasive answers given on occasions by the applicant, some of which were inherently improbable. Also, it is better in circumstances such as these that members
of Tribunals conducting reviews of decisions of lower bodies intervene to ensure that relevance is maintained and to indicate where they have doubts or difficulties with evidence, although they should not to go too far in making the witness feel ill at ease or upset about the hearing.

I am satisfied that the case of actual bias has not been established.

The question then arises whether the conduct of the Tribunal member which is impugned by the applicant constitutes acting otherwise than according to substantial justice and the merits of the case (s. 422(b)).

Section 476 specifies grounds for review by the Federal Court of a judicially-reviewable decision. Section 476 reads as follows:

'476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by
this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.'

Section 485 should also be set out:

'(1)In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

(2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.'

The question argued before the Court was whether it is open for the applicant to set aside the decision of the Tribunal if the Tribunal has acted otherwise than according to substantial justice and the merits of the case and thus acted contrary to the charter of s. 420(2). It was put that such a failure constitutes the non-observance of procedures required by the Act to be observed in connection with the making of the decision, and thus falls within s. 476(1)(a) as a ground of review, or alternatively within para. (c), meaning that the decision was not authorized by the Act.

Olney J. considered a similar submission in Velmurugu v Minister for Immigration and Ethnic Affairs, unreported, 23 May 1996, NG405 of 1995. As his Honour's judgment makes clear, the applicants before him were in effect seeking a review on the merits of the case. His Honour said that this did not involve a 'procedure' and thus could not give rise to review on the ground described in s. 476(1)(a).

North J. considered s. 420 and s. 476(1)(a) in Wannakuwattewa. North J. said that he did not need to determine whether s. 420 established procedures for the purposes of s. 476(1)(a). In a later decision of North J. (Zakinov v Gibson, VG764 of 1995, unreported, 26 July 1996), his Honour referred to Olney J.'s judgment in Velmurugu and the earlier judgment of Lehane J. in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693, and his
Honour agreed with both judgments. Particularly, his Honour expressed agreement with Olney J.'s view in Velmurugu concerning the inter-relation of ss. 420 and 476(1)(a) that a challenge to a decision on the merits does not involve a contravention of any procedure set out in s. 420, and thus cannot give rise to a review on the ground described in s. 476(1)(a). In Zakinov North J. said at 15 that the applicant was seeking a review on the merits, arguing that the opinion of a Mr Dunn, psychologist, had to be accepted and in failing to accept it unconditionally the Tribunal failed to accord it sufficient weight. His Honour said that that argument did not identify any failure of the Tribunal to observe the procedures required to be observed by the Act.

In the present case the applicant is not seeking a review on the merits. The applicant has confined his attack on the Tribunal's decision to the conduct which, as previously particularized, is said to indicate that the Tribunal had not acted according to substantial justice and the merits of the case. The present case is thus distinguishable from these judgments of Olney J. and North J.

Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s. (2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review
mechanism that is fair, just, economic, informal and quick (s. 420(1)).

It has not been established that the Tribunal member failed to act according to substantial justice or failed to act fairly when the proceeding is viewed overall. As I said earlier, there were moments when some comments made by the Tribunal were somewhat unfortunate, and it would have been better if they had not been made. However, it is easy to be wise after the event, with the benefit of hindsight. It must be remembered that the Tribunal could be excused for a measure of exasperation in the light of certain parts of the evidence given by the applicant. Overall, I am not persuaded that substantial justice was not afforded the applicant.

If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s. 476(1)(a), the procedure being to act according to substantial justice in reviewing a decision.

It was no part of the applicant's case to challenge as a separate ground of review the conduct of the Tribunal member as conduct leading to a decision.

For these reasons the application is dismissed with costs.

I certify that this and the preceding fifty-two (52) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated: 18 October 1996

Counsel for the Applicant : Mr G Craddock

Solicitors for the Applicant: McDonells

Counsel for the Respondent : Miss E A Wilkins

Solicitors for the Respondent : Australian Government Solicitor

Date of Hearing : 30 September 1996

3 October 1996

Date of Judgment : 18 October 1996

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