"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ..."

The High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 has explained what is meant by the words "well founded fear" of being persecuted.

On 11 December 1995 a delegate of the respondent determined that the applicant was not a refugee (to use that word to compendiously encapsulate the relevant test for eligibility for a protection visa), and refused the application for a protection visa.  The applicant applied to the Tribunal on 4 January 1996 for review of that decision.  On 16 December 1996 the Tribunal affirmed the decision to refuse to grant to the applicant a protection visa.

The present application was made on 9 January 1997 for judicial review of that decision of the Tribunal under Part 8 of the Act.  The application was amended on 24 March 1997.  It invokes ss 476(1)(a), 476(1)(g), and 476(1)(d) as explained in s 476(3)(c) of the Act, as providing the grounds for review.

As one ground of review relied upon is that the Tribunal was constituted by the same member Mr Jonothan Duignan ("Mr Duignan") for its decisions on 27 July 1994 and on 16 December 1996, it is desirable to note the nature of the matters in issue before the Tribunal in each instance and its decision. 

THE FIRST APPLICATION

The grounds of his first application for recognition as a refugee were founded upon his asserted active support for the policy of Sikh independence and as a follower of Sant Jarnail Singh Bhindranwale, even from his time in high school.

After leaving school, between 1979 and 1983, while working on the family farm, he said that he remained active and prominent as a supporter of the Sant.  He claimed to have been arrested in 1983 by local police, on fabricated charges, and severely mistreated because of his political beliefs, but was released after three days when his father paid a substantial bribe.  After his release, he claimed to have become an even more active and prominent follower of the Sant, travelling widely to spread his message.

Then came the raid on the Golden Temple on 5 June 1984, part of the attempt by the Indian army to destroy the Sant and his followers, when the Sant was killed and there were extensive arbitrary arrests and detentions, and many killings in fabricated circumstances.  The assassination of Indira Ghandi on 31 October 1984 was a further event significant of the general turmoil at the time.  Those events are well documented.  The applicant claimed to have cut his beard and his hair to avoid the attention of authorities.  He was so fearful that he fled India, under a passport in the name of Ravi Kumar Dhall, procured through bribery.

The initial decision maker did not positively disbelieve the applicant.  He concluded that, following the applicant's arrest in 1983, he demonstrated no reason for untoward fear of the authorities nor since has he demonstrated any reason why "that alleged incident" should now place him at risk should he return to India.  It was accepted that he had a generalised fear of possible arbitrary arrest, or an encounter killing, or disappearance, in the Punjab but concluded there was no reason why he would be directly targeted by the authorities and, in any event, he could relocate elsewhere in India to avoid the (then) current volatile political situation in the Punjab.  That decision maker expressly rejected his claimed status as a member of the Sant's retinue or as a prominent disciple.

The Tribunal affirmed that decision.  The applicant's claims were maintained, and before the Tribunal were supported by evidence from two witnesses and documentary material.  As did the initial decision maker, the Tribunal accepted that human rights abuses by some members of the security forces directed at Sikh activists had taken place over many years, and were continuing, but it too rejected the applicant's claim of continuing police interest in him after his release from arrest in 1983 and for the ensuing eighteen months or so until he left India.  The Tribunal reached that conclusion, despite accepting that during that period the applicant continued to express support for the Sikh cause and attend the Golden Temple and his home village from time to time.  The applicant had, after his release from detention in 1983, moved to Delhi or its environs.  It concluded that, were he to return to Delhi, he would have no political profile of any significance which would put him at risk of persecution.  It positively rejected evidence of continuing police interest in him.  He had demonstrated an ability to relocate from the Punjab to other areas of India in order to avoid coming into conflict with authorities.  It found it would be reasonable for him to do so again.

That decision of the Tribunal constituted by Mr Duignan was given on 27 July 1994.

No application was made to the Court for review of that decision. 

THE CURRENT APPLICATION

The written claims upon which the application of 27 August 1994 were founded substantially overlapped the claims made with respect to the applicant's first application.

In addition, the applicant claimed at interview on 10 August 1995 that he had been an active member of the International Sikh Youth Federation ("ISYF") in Australia since its foundation in 1991.  The ISYF is a body to provide internationally information about affairs in the Punjab, in particular about suppression of freedom of expression.  He had not referred to that in his written application.  He also claimed to be an active committee member of the Revesby Gurdwara (very roughly, the religious and community centre) whilst in Australia in 1992-1993, and thus having been agitating publicly against the behaviour of the activities against Sikhs in the Punjab.  Again, that was not mentioned in his written application.  He adduced some material that others who had returned to India, and who had engaged in similar activities in other countries, had been arrested and tortured.

The decision maker accepted the applicant did have a subjective fear of persecution if he is returned to India, by reason of his fear of arrest, detention, and even threat against his life for reasons of his political opinion, and also by reason of the restriction of his freedom of religion.  It was however necessary for him also to establish that that fear was "well founded", i.e. that there is a real chance of him suffering persecution if he were to return to India:  Chan Yee Kin (above).  He found that the applicant did not have a well founded fear of persecution for reasons of his religion.  In respect of his subjective fear, based upon his political beliefs, he referred to the earlier decision both by the delegate of the Minister, and then by the Tribunal, and in particular to the Tribunal's earlier detailed findings.  He noted that the further claims related to the applicant's role with the ISYF from 1991, and as a member of the Damdami Taksal in India since 1979; he was involved with the distribution of pamphlets for that group.

That decision maker considered the claims afresh, and said:

"on the basis of his statements and other evidences (sic) cited by the previous Delegate and by the Tribunal, I find that the events following the applicant's claimed membership with the Bhindranwale group do not indicate that he had a significant role within that group."

That decision maker concluded that the applicant's fear of persecution on the basis of his claimed involvement with the Bhindranwale group was not plausible.  That particular group had not previously been specifically named.  The Damdami Taksal is a militant Sikh religious group, which in June 1984 (the time of the attack on the Golden Temple) was led by Sant Jarnail Singh Bhindranwale.  The delegate, for reasons given, did not accept that the applicant was a member of Damdami Taksal.  He accepted that the arrest in 1983 may have occurred but nevertheless did not accept that thereafter the police had any continuing interest in the applicant whilst he remained in India to 1985.  He also independently assessed the evidence about the treatment of Sikhs in, or Sikhs returning to, India, and did not accept those claims.

The main issue, and the only substantively new issue, was the applicants claimed role with the ISYF and the Revesby Gurdwara which he accepted.  However, he did not accept that those activities have attracted the adverse attention of the Indian authorities, especially as the Gurdwara activities are peaceful and religious, and do not infringe Indian domestic law nor bring India into disrepute.  He thus found:

"... that in as far as his involvement with the ISYF is concerned, there is no evidence to support his claim that his involvement with the ISYF has brought adverse attention to himself.  Nor is there any information available that the ISYF is an illegal organisation and that involvement with the ISYF will bring about adverse attention to a member or supporter, ..."

nor was there any acceptable evidence to support the claim that his parents and relatives were harassed and interrogated because of his activities in Australia.

The Tribunal on review of that decision was constituted again by Mr Duignan.

After recording the claims made to the first Tribunal and noting its decision, the Tribunal identified the new claims relating to the applicant's involvement in Australia with the ISYF and the alleged consequential harassment of his family in India.  There was some further newspaper material of mistreatment of Sikhs in India and other documentary material was also presented.

In circumstances involving later applications for review, s 416 of the Act provides:

"If a non-citizen who has made:

(a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c)is not required to consider any information considered in the earlier application or an earlier application; and

(d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."

The Tribunal accordingly focussed on and carefully considered in detail the new material adduced by the applicant relating to his activities in Australia with the ISYF and the Revesby Gurdwara, and his activities with the Damdami Taksal.  The detail of the applicant's role in the ISYF was identified, and considered, including anecdotal information about its members overseas who had, on return to India, been mistreated or killed, and of the threat by the former Chief of Police of the Punjab, whose visit to Australia in 1992 had been opposed by ISYF, that persons involved in ISYF outside India need to be "targeted".  Any return to normalcy in the Punjab was, according to the applicant, but a veneer.  It is apparent from the reasons of the Tribunal that it was querulous as to why information about the applicant's role in ISYF had not been provided earlier, and that (not surprisingly) the Tribunal was familiar with the applicant's earlier evidence at its previous hearing; explanations were given.  The Tribunal also noted and considered evidence that, since an offensive by the military forces in 1992, there had been a substantial return to normalcy in the Punjab, despite the assassination of the Chief Minister of the Punjab, Mr Beant Singh, in August 1995, as well as other instances of violence during 1995.

The Tribunal's conclusions dealt separately with the matters raised in common with the earlier application, and the new claims.  As to the former, it concluded:

"In connection with the Applicant's claims advanced in his earlier Application for Review the Tribunal relies upon and takes to be correct the decision made on 29 July 1994 about that information.  That decision was that the Applicant was not a refugee under the terms of the Refugees Convention."

In connection with the new information, which it described as concerning his involvement with the ISYF in Australia, it said that it had "some concerns about the applicant's evidence" as it had not been raised until after the first application was disposed of, and so it was led to "consider that the Applicant has overstated his involvement with the group  ...  for the sake of advancing his claims to refugee status".  It reinforced that view by inconsistencies and vagueness in the evidence as to that involvement.  Thus it said that there was:

"a very serious possibility that the applicant has simply created his claims of involvement with the ISYF and enlisted the support of members of the community for the purpose of advancing his refugee application."

It did not finally decide that question.  It did not need to do so.  It concluded that it was:

"not satisfied that even of (sic) the Applicant were involved with the ISYF in the manner he has claimed, that there is a real chance of him coming to harm on this basis should he return to India."

and later that:

"While there is evidence of some human rights activists in the Punjab currently being of interest to security authorities, there is also clear evidence of a vast improvement in the human rights situation in the Punjab since the middle of 1993.  The material referred to above, which comes from a variety of sources indicates that Sikh political groups continue to operate openly in the Punjab and there has been a substantial return to normalcy of the region.  This is no to deny that Indian security forces have been responsible for massive human rights abuses of Sikhs in the Punjab in the past, however, the available information does point to a considerable improvement since that time.  In this context, there is not a real chance of the Applicant being of interest to authorities on return.  He has had limited involvement as a supporter of the ISYF in Australia even if his evidence were accepted and there is no evidence that te Indian government would be aware of or interested in his role.  The Applicant did claim that his family have been visited by police and told that his activities in Australia are known to them, however the letter claiming this was presented at such a late stage in proceedings that it bears the character of a fabricated exaggeration for the purpose of assisting his claim.  The Tribunal does not believe that this claim is true."

Thus, overall, it concluded that the applicant had substantially exaggerated his claimed involvement with the ISYF for the purpose of advancing his claim to refugee status, and did not accept his asserted belief that that involvement could lead to his mistreatment were he to return to India.  It did not accept that his involvement would even be known to the Indian government.

THE CONTENTIONS

The applicant's primary contention was that there was reviewable error in:

(a) the Tribunal being constituted by the same person for the second application as for the first application, and

(b) the Tribunal, in treating the first Tribunal decision as it did, erred in the manner of its dealing with that decision contrary to s 416 of the Act.

The legislative base for those contentions was s 476(1)(a) of the Act, which provides:

"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;".

At the hearing, leave was sought to further amend the application by adding as cl 1A of the grounds:

"Pursuant to s 476(1)(f), the decision was affected by actual bias in that the Tribunal was constituted by the same person who was the Tribunal for the decision made on 27 July 1994".

The relevant fact to support that allegation was simply that Mr Duignan constituted the Tribunal for each of the applications; no particular conduct on his part was asserted as relevant in any way.  That amendment was not opposed.  As it does not add anything to the application, other than expressing an additional legislative base for an argument presented in any event, I allow that amendment.

I deal with that primary contention below, under the compendious heading of the Constitution of the Tribunal.

There were two other grounds of review asserted with which I can deal briefly; they were not addressed by the applicant in oral or written submissions.

It was asserted that there was no evidence or other material to justify the making of the decision, contrary to s 476(1)(g) of the Act.  The amended application particularises the particular matters or facts which did not exist, necessary because s 476(4) explains and confines the operation of s 476(1)(g):  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 327.  Those facts as found related to the political and social situation in the Punjab at the time of the decision.  It was said that those facts did not exist.  As a number of authorities make clear, one recent case being the decision of Goldberg J in Ratnayake v Minister for Immigration and Ethnic Affairs (Federal Court, 6 May 1997, unreported), that provision does not provide a means for merits review.  And as O'Loughlin J pointed out in Magyari v Minister for Immigration and Multicultural Affairs (Federal Court, 22 May 1997, unreported), generally it will only be by reference to the whole of the material before the Tribunal that it will be able to be established that a fact found by the Tribunal did not exist.  This is at least in the sense that the only relevant material before the Tribunal either established the non-existence of that fact or that there was no relevant material before the Tribunal which could support the finding as to the existence of that fact.  Of course, the nature of the fact or facts under consideration, and their significance to the reasoning leading to the decision, is also important:  Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.  It is unnecessary to further consider this aspect.

Far from this ground of review being established on the facts of this case, the Tribunal's reasons refer to the material before it, and upon which it made the findings of fact now challenged.  Accordingly this ground of review must fail.  It is not to the point that there was, or may have been, other material which the Tribunal might have had regard to in reaching a different conclusion.  To succumb to the invitation to allow review on that basis would be to undertake a merits review, a course not open to the Court.  See also the remarks of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 41.

It was also asserted that the Tribunal's decision involved an improper exercise of the power conferred on it by the Act because it exercised a discretionary power in accordance with a rule or policy without regard to the merits of the applicant's case, contrary to ss 476(1)(d) and 476(3)(c) of the Act.  The particularity provided referred to the regard the Tribunal had to information provided by the Department of Foreign Affairs and Trade, and from other sources, about the political and human rights situation in the Punjab.

This ground of review must fail.  It is not surprising that it was not supported by oral or written submissions by the applicant, although it was not abandoned as a ground of review.  It is plain that the Tribunal did consider the merits of the applicant's case; a large proportion of its reasons for decision are directed to doing so.  Furthermore, the determination of the status of the applicant under the Convention is not the exercise of a discretionary power, but the determination of a complex state of fact.  Nor was any rule or policy to which s 476(3)(c) could attach identified, and one is not apparent from the Tribunal's reasons.  In my view, the Tribunal's reasons as expressed demonstrate that it reached its conclusion on the merits after considering the material before it, and not by applying any rule or policy.

THE COMPOSITION OF THE TRIBUNAL

The fabric with which it was sought to clothe the simple point that Mr Duignan constituted the Tribunal on review of both applications was identified as s 420 of the Act.  That section, it was argued, prescribed procedures to which s 476(1)(a) applied.  It also was argued to proscribe the Tribunal being constituted by Mr Duignan for its review of the second application.

Section 420 of the Act provides:

"(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

 (2)The Tribunal, in reviewing a decision:

 (a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case."

For the application on this ground to succeed, it is necessary that:

·s 420 be construed as prescribing procedures required by the Act to be observed in connection with the making of the decision under review

·the constitution of the Tribunal in the circumstances amounted to a failure to comply with those procedures, and

·no other provisions of s 476, but in particular s 476(2)(a) which says that a breach of the rules of natural justice occurring in connection with the making of a decision is not a ground of review, excluded such a failure from involving a reviewable error under s 476(1)(a) of the Act.

The first of those matters had been the topic of substantial judicial consideration by members of the Court, the more pertinent decisions on the point being considered by the Full Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191 and more recently by the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (10 July 1997, unreported).  In Eshetu (above), both Davies J and Burchett J decided that s 420 does prescribe procedures with which the Tribunal is bound to comply.

Davies J expressed his conclusion in the following terms (at 4): 

"In my opinion, s.420 describes procedures with which the Refugee Review Tribunal is bound to comply.  A breach of them is a ground of review under s.476(1) of the Act.  It is the most general provision, so far as the Refugee Review Tribunal is concerned, of the sections which deal with the procedures to be followed.  It specifically provides that the Refugee Review Tribunal is to pursue the objective of providing "a mechanism of review that is fair, just, economical, informal and quick".  The section also provides that the Tribunal "must act according to substantial justice and the merits of the case."  One of the necessary elements of so acting is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits.  Of course, the words "act according to substantial justice and the merits of the case" refer to more than matters of procedure.  Nevertheless, the procedures must be fair.  Otherwise, the Refugee Review Tribunal will not be able to arrive at the justice and merits of the case."

He specifically identified s 476(1)(a) as providing the ground upon which the procedural elements prescribed by s 420 may be challenged.  His Honour also rejected the view, expressed in a number of decisions, including in Thanh Phat Ma v Billings (1996) 142 ALR 158, that s 476(2) excluded from judicial review a procedural failure which would amount to a breach of the rules of natural justice.  He said (at 8):

"In my opinion, that approach is wrong.  The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own.  Section 420 provides that the mechanism of review shall be "fair, just, economical, informal and quick" and shall be directed to arriving at the "substantial justice and the merits of the case".  If the procedures of the Tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside.  It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law.  The matter is to be determined not by the common law but by the words of the statute.  A breach of the statute is not saved by s.476(2)."

Burchett J reached similar conclusions to Davies J.  His Honour referred to Butterworth's Australian Legal Dictionary (1997) definition of natural justice in the following terms:

"The right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence ...".

And, in the light of that definition, he remarked at 5:

"The first aspect of this definition was plainly intended to be given effect by s 425, and the whole of it, in broad terms, by s 420.  Breaches of those provisions would, quite literally, fall within the language of s 476(1)(a) and (e) as fundamental procedural breaches, and also as errors of law.  In the case of bias, s 476(1)(f) would also be directly engaged.  In my opinion, the most straightforward way to understand the legislation, taken as a whole, is to read it as substituting, for a broad conception of natural justice, a series of specific provisions by one or other, or even several, of which each rule of natural justice is given effect, so that a separate ground expressed in the traditional way would be otiose.  It is for this reason that s 476(2)(a) removes a breach of the rules (note the word is in the plural) as a separate ground.

There are powerful considerations that provide support for a construction giving full effect to ss 420 and 425 in conjunction with the clear wording of s 476(1), while giving meaning to s 476(2) in the way I have suggested."

In the light of those conclusions, by majority comprising Davies and Burchett JJ, the appeal to the Full Court was allowed and the matter remitted to the Tribunal for further consideration.  Whitlam J dissented from the view of the majority both as to the proper construction of s 420 of the Act and on the facts.

In my view, the Full Court of this Court has thereby authoritatively laid down the proper operation of, and interaction between, ss 420, 476(1)(a) and 476(2) and other related sections of the Act.

It remains to consider whether the procedural obligation imposed under s 420 that the Tribunal conduct a review which is "fair" and "just" was satisfied in light of the fact that it was constituted by Mr Duignan on the second review, and of course having regard to other relevant provisions of the Act.

Section 416 of the Act, which is set out above, makes provision for later applications for review by the Tribunal.  It is significant that it is in permissive terms.  Thus the Tribunal reviewing the later application is not required to consider any information considered in the earlier application, and may have regard to and take to be correct any earlier decision of the Tribunal made about or because of that application.  It is not obliged to do so.  Whether it does so is up to the Tribunal, and the Tribunal will have to make that decision in the circumstances then before it.  In effect, in relation to an earlier application reviewed by the Tribunal, the Tribunal adopts one of two alternate paths:  either it decides that it is appropriate to "adopt" the earlier decision, and if it does not then it must retraverse the entire material before it, or if it does do so then it need only traverse the new material before it and adopt the earlier decision.  If the Tribunal constituted by one and the same person has made the earlier decision, then it seems to me to be clear that the Tribunal is unlikely to be sufficiently removed from the process to meaningfully consider whether it is appropriate to "adopt" the earlier decision for the purposes of the later decision.

It might be said in response that this analysis is too theoretical, as s 416 does not create any "right" on the part of the applicant to have the Tribunal consider whether to "adopt" the earlier decision or to go behind it.  That is, it provides a vehicle for the Tribunal if it considers it desirable to go behind an earlier decision but starts from the premise that the applicant must build on an existing decision of the Tribunal.  The respondent also fairly points out that the Tribunal, on the face of its reasons, has also done no more than it was expressly entitled to do:  it has expressly had regard to, and taken to be correct, its decision on the earlier application.

I interpose to remark that it was not contended that the word "decision" in s 416 was limited so that the Tribunal (absent the sort of issue now raised) was not expressly empowered to act as its reasons indicate in relation to that earlier decision.  See the discussion on this topic in the decision of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Federal Court, 6 May 1997, unreported, at 48-58).

I note that s 48A of the Act, which was enacted by s 14 of the Migration Legislation Amendment Act (No 6) 1995 and came into force on 18 September 1995, now precludes a non-citizen in circumstances such as those of the applicant from making a further application for a protection visa once one application has been refused.  If, prior to that date, there could be a series of applications for recognition as a refugee, I do not think that the fact or nature of that amendment throws any light on the question under review.  I also do not consider that s 50, which is in terms parallel to s 416, but which applies to the decision making process by the Minister (or his delegate:  s 496 of the Act), in relation to an application, nor s 453, also in terms parallel to s 416, but which applies to the decision making process of the Administrative Appeals Tribunal on applications properly before it, provide any insight in to the present issue.

It is clear that a member of the Tribunal should not sit to hear a case if, in all the circumstances, the applicant might entertain a reasonable apprehension that that member might not bring an impartial and unprejudiced mind to the determination of the review:  Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294.  That is based upon the principle that justice should not only be done, but should manifestly be seen to be done:  R v Watson, ex parte Armstrong (1976) 136 CLR 248 at 262-263.  Those principles do not apply only to judicial officers:  R v Commonwealth Conciliation & Arbitration Commission; ex parte The Angliss Group (1969) 122 CLR 546; R v Maurice; ex parte Attorney-General (Northern Territory) (1987) 17 FCR 422, at least subject to express statutory provision to the contrary:  Roberts v Department of Aviation (1985) 59 ALR 309 at 321.  The extent to which the principle applies in respect of particular administrative decisions under particular legislation will vary:  Angliss (above, at 553).  I note that in Eshetu (above), Davies J in remitting the matter to the Tribunal observed (at 21):

"Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind.  However, that is so obvious a proposition, it need not be part of the formal order."

Although that principle, expressed for example in Livesey (above), is often described as one of the two basic limbs of the rules of natural justice, it is also by reason of the majority decision in Eshetu (above) a procedural rule applicable to the Tribunal.  The expressions in s 420 that the hearing must be "fair" make that clear, and s 476(2)(a) does not preclude s 420 from having that effective operation.  See also Century Metals & Mining NL v Yeomans (1989) 100 ALR 383.

In my view, because the applicant was entitled to have the Tribunal consider whether or not to take advantage of s 416 of the Act in relation to its earlier determination, it was necessary for the Tribunal to be differently constituted when the current application for review was considered by it.  There were in my judgment circumstances by reason of which there was a reasonable apprehension that Mr Duignan, in considering whether or not to avail himself of s 416 of the Act in relation to his earlier decision, might not bring an impartial and unprejudiced mind to that issue.  The statement of that proposition effectively demonstrates its correctness.  Because he had made the earlier decision, there were reasonable grounds to apprehend that he would not look critically at that decision, or treat the new information and the additional information which touched on the grounds for that earlier decision with the degree of objectivity which s 420 calls for.  Accordingly, I conclude that the applicant has made out his claim under s 476(1)(a) of the Act in that regard.  That conclusion does not involve any suggestion that Mr Duignan was in fact biased, or that he did not apply himself conscientiously to consideration of the relevant materials in any event.  That is not the proper question for present purposes.  I address below the separate assertion of actual bias.

In relation to that finding, that is not the end of the matter.  The applicant knew of Mr Duignan's earlier involvement at least by the time of the Tribunal hearing his second application for review.  He did not then object to Mr Duignan continuing with the hearing.  Generally, in those circumstances, the point cannot later be taken on appeal if the decision proves unfavourable:  Nickelseekers Ltd v Vance [1985] 1 Qd.R. 266.  That proposition is well illustrated by Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1986) 64 ALR 6.  In that case, in which the application for a writ of prohibition directed to a judge of the Conciliation and Arbitration Commission for alleged bias was refused for just such a reason, the Court (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ) said at 7:

"The law has, in the past, taken a strict view of the consequences of the failure of a party to object to the participation in proceedings by a member of a tribunal who is said to be biased.  In some cases it has been held that a party entitled to object to the participation of an adjudicator, disqualified by interest or likelihood of bias, will be deemed to have waived that entitlement if, being fully aware of the circumstances, he fails to object as soon as is reasonably practicable.  In other cases it has been held that a party failing to take objection may be refused relief if he seeks a discretionary remedy."

In this matter, the applicant was unrepresented before the Tribunal.  He was not assisted by a registered migration agent.  There is nothing to show he was aware of his right to raise any objection to the composition of the Tribunal.  There is nothing to suggest that matter was raised with him by the Tribunal as then constituted.  As a matter of the exercise of my discretion, having regard to those considerations, I would in the circumstances not decline to make the order for review sought because the applicant failed to object to the composition of the Tribunal at the time of the hearing.  It was not argued that, if I were otherwise in favour of the applicant on this point, I should decline to grant the relief sought.  Nor was it argued that there was any waiver by the applicant in the particular circumstances.  In Vakauta v Kelly (1989) 167 CLR 568, it was made plain that awareness of the right to object must exist before there can be a waiver of that right:  see per Brennan, Deane and Gaudron JJ at 572 (who referred to waiver where the party has legal representation), Dawson J at 577, although at 579 his Honour referred to "being aware of the circumstances giving rise to a right to object", and Toohey J at 587.

There remains to consider the question of actual bias.  Section 476(1)(f) requires that the decision was induced or affected by fraud or by actual bias if that ground of review is to be made out.  Actual bias may arise through interest or by reason of relationship, friendship, enmity or other reason.  The distinction between actual bias and apprehended or ostensible bias is not always easily drawn.  In Watson (above, at 258ff) the prejudgment on credit which gave rise to the finding of bias was asserted to constitute "actual bias" but the subsequent reasoning of the Court (Barwick CJ, Gibbs, Stephen and Mason JJ) makes it plain that in reality the case was one involving a reasonable apprehension of bias, rather than of actual bias.  The expression of s 476(1)(f) conveys to me that it is not intended to cover cases of apprehended or ostensible bias; where appropriate, s 476(1)(a) and s 420 will attract the basis for review in such cases.  I think that the joinder of the expressions "fraud" and "actual bias" in that subparagraph justify that observation.  If there be uncertainty as to that, the Explanatory Memorandum to the relevant amending legislation, which is referred to by Einfeld J in Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 at 153, also supports that view.  As Burchett J pointed out in Eshetu (above, at 4-5) it is a "commonplace of administrative law" that grounds of review may overlap.

In Murillo-Nunez (above), Einfeld J at 160 rejected the ground of review based upon s 476(1)(f) in the following terms:

"In the circumstances I find myself unable to conclude that the decision of the Tribunal was induced or affected by actual bias.  So that the matter is clear, I am treating actual bias as embracing all forms of bias by independent tribunals which have found expression in the authorities."

I apprehend that the view I have taken as to the scope of s 476(1)(f) may be seen to differ to some degree from that of his Honour, although ultimately his conclusion was simply that even on the wider view of bias, including apprehended or ostensible bias, the case was not made out.  However, there is a further passage in his Honour's reasons which may suggest that something less than actual bias can satisfy s 476(1)(f); at 153-154 his Honour said:

"It was put in argument that if there is a perception of bias to the requisite standard, bias is established and it is unnecessary to go to the point of proving that a judge or tribunal was actually biased.  I think that this is what the Parliament had in mind.  It should be noted that actual bias in par (f) is linked with the words "by fraud", indicating that what the legislature contemplated was a serious case of bias, not one that was remote or required a series of difficult inferences or the construction of a series of disparate facts.  At the same time it appears to me that the legislature is likely to have meant that what needs to be established in this context is that the actions of the tribunal under consideration were so tainted by provable events that a conclusion should be drawn that the decision was affected by bias."

I share the view of Lindgren J in Sun Zhan Qui (above, at 95-97) that this passage is unobjectionable if it is addressing the evidentiary question of the material on which it will be proper to infer actual bias.

Actual bias, in the present circumstances, involves it being shown that the Tribunal did not in fact bring an unbiased mind to the issues before it, either generally or in a respect of significance so as to induce or affect the decision:  see eg per North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Federal Court, 24 June 1996, unreported); per Lockhart J in Minister for Immigration and Ethnic Affairs v Singh (Federal Court, 18 October 1996, unreported).  The conclusion of the Tribunal whether or not to make use of s 416 of the Act in relation to the earlier decision is, in my view, of such significance.  However, no particular matter was identified in submissions to demonstrate, or upon which I was asked to infer, actual bias other than the facts that Mr Duignan had constituted the Tribunal on each occasion of review, and had on the review in question chosen to have regard to, and take to be correct, his earlier decision.  No particular features of the conduct of the subject review by the Tribunal were relied upon.

In Ex parte Lewin; Re Ward (1964) 80 WN (NSW) 1527 McClemens J considered an application for a rule nisi for a writ of statutory prohibition directed to a magistrate in proceedings by a landlord for the recovery of premises.  The magistrate had already heard and determined a similar application between the landlord and a different tenant, which involved consideration of evidence of a witness also proposed to be called in the proceedings in issue.  The magistrate had not done or said anything which in fact indicated that he would not determine the proceedings on the merits.  The rule nisi was discharged.  Much of his Honour's judgment concerns the question of apprehended or ostensible bias in the particular circumstances, but he also rejected a finding urged upon him of real bias.  His Honour added (at 1535):

"No judicial officer has a vested interest in any one of his decisions, and if the circumstances arise where it is proper that he has to reconsider it, he should do so, and if he thinks it wrong, say so."

In R v Mullins; ex parte Stenhouse (1971) Qd.R. 66 the Full Court upheld an objection to the composition of an Appeal Board to which an appeal was brought from the Rockhampton Fire Brigade Board terminating the services of the applicant for the order.  A member of the Appeal Board was also a member of the Rockhampton Fire Brigade Board.  Hart J (with whom W B Campbell and Matthews JJ agreed) expressed reasons couched in terms of both actual and ostensible bias (at 74):

"In my opinion a reasonable person might well think that Mr. Livingstone might be biased and I think, also, there is a real likelihood of bias.  Justice has not manifestly and undoubtedly been seen to be done.  Also Mr. Livingstone has been a judge in his own cause."

Those observations are not, of course, entirely apposite to the present case.  In particular, Mr Duignan was not in any sense sitting in judgment on his own cause.  Nevertheless, by reason of s 416, he was called upon to decide whether to have regard to, and take to be correct, his earlier decision concerning the applicant.  He had in his earlier decision rejected a significant part of the applicant's evidence, both as given by the applicant personally and by other witnesses.  In my view, the circumstances certainly do not fall far short of actual bias, and may well amount to it.  It is hard to see how Mr Duignan could have exercised the functions which s 416 called upon him to do, or to have approached the consideration of the applicant's claim generally including his reliability with an open mind.  That the drawing of this line is one for the particular circumstances of the case is well illustrated by Re Morling; ex parte Australasian Meat industry Employees Union (1985) 66 ALR 608.  As I have found a ground for review based upon a breach of s 420 in any event, I do not need finally to determine that question.

It is also unnecessary in the circumstances to determine whether there can be a waiver of actual bias.

I should also note an associated argument that the Tribunal erred in having regard to the matters before it on the earlier application when questioning the applicant.  It was put that s 416 permitted the Tribunal to "adopt" its earlier decision, but that if it did so (as it did in this instance), it could not also refer to that material additionally for other purposes.  I reject that submission.  Section 416 on its face is not so limited.  It is a permissive power directed to entitling the Tribunal not to retraverse already trodden ground.  That of course, by reason of s 48A of the Act, is now much less likely to occur.  It is not a provision which prevents the Tribunal from having regard to material relevant to its decision in relation to an assertion of fresh material or fresh grounds for the later application.  Indeed it would not be sensible to construe s 416 so as to preclude consideration of relevant material.

CONCLUSION

Despite the view I have reached on the principal point argued before me, I gave consideration to whether I should in any event dismiss the application because the applicant had, at best, presented a case that he had a well founded fear of persecution for reasons of his political beliefs were he to return to the Punjab area of India.  That is not sufficient to qualify as a refugee.  It is necessary that the well founded fear relate to his return to India, and not simply to a region of India.  If it were reasonable for him to relocate to some other region of India, where he would not be subject to a real chance of persecution for a Convention reason, then any well founded fear of persecution should he return to the Punjab area would not qualify him as a refugee:  Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437.  The Tribunal made such a finding in its first decision given on 27 July 1994.

However, whilst that matter may provide a substantial obstacle to the applicant succeeding on further reconsideration of his application for review by the Tribunal, I have decided it is not appropriate to so act.  That aspect was not the subject of a decision or finding by the Tribunal in the decision now before the Court.  It was not "adopted" by the Tribunal from its earlier decision, as it was not necessary for it to do so.  However, it is not for the Court to find facts or to assume what findings the Tribunal would make on that, or other, matters whether by means of the enabling power of s 416 or simply under its general decision making responsibilities.  I should not pre-empt what the Tribunal might do.  The applicant is entitled to such a determination, and one made as at the date of the determination:  Minister for Immigration and Ethic Affairs v Singh (above).

Accordingly, the order I make is that the application for review be granted and that the matter be remitted to a differently constituted Tribunal for redetermination. 

 Associate:

 Dated: 19 August 1997

Counsel for the Applicant:                           Mr M Clisby

Solicitors for the Applicant:                          Gilbert Santini

Counsel for the Respondent:                        Mr W Mosley

Solicitors for the Respondent:                      Australian Government Solicitor

Date of Hearing:                                          23 June 1997