FEDERAL COURT OF AUSTRALIA

Addai v Minister for Immigration & Multicultural Affairs

[1999] FCA 1702

PRACTICE & PROCEDURE – appeal from a decision of a judge (“the primary judge”) dismissing proceedings brought by the appellant to set aside a decision of the Refugee Review Tribunal after refusing an adjournment of the hearing of the application in order that the appellant could recast her case – appellant abandoned a case of actual bias some months before the hearing but then sought to revive that ground the day before the hearing – change of position unexplained – whether the primary judge gave too much weight to case management

WORDS AND PHRASES – “bias”, “case management”

Migration Act 1958 (Cth), ss 476(1)(f), 478

Abebe v Commonwealth (1999) 162 ALR 1, cited

Asif v Minister for Immigration & Multicultural Affairs [1999] FCA 1487, distinguished

Galea v Galea (1990) 19 NSWLR 263, cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411, cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 73 ALJR 746, cited

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, distinguished

Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, cited

JOSEPHINE ADDAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 843 OF 1999

WHITLAM, RD NICHOLSON and GYLES JJ

SYDNEY

10 DECEMBER 1999

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.         The appellant is to pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     On 5 August 1999 the judge below refused to adjourn the hearing of an application by Josephine Addai (“the appellant”) seeking to set aside a decision of the Refugee Review Tribunal (“RRT”) in order that the appellant could recast her case in a way we shall outline later.  As the appellant’s counsel conceded that the application could not succeed unless it were recast, the application was dismissed and an order for costs made against the appellant.  The appeal is from the dismissal of the proceedings, although the substantive ground of the appeal was that the adjournment should have been permitted.  Once this was made clear, the respondent did not persist with an argument that leave was required.

Chronology

2                     The appellant arrived in Australia on 19 July 1997.  On 8 July 1998 she lodged an application for a protection visa pursuant to the Migration Act 1958 (Cth) (“the Act”).  On 30 July 1998 a delegate of the Minister for Immigration & Multicultural Affairs refused to grant a protection visa.  On 11 August 1998 the applicant sought review of that decision.  On 26 November 1998 the RRT affirmed the decision not to grant a protection visa.

3                     The appellant based her claim to protection upon a well-founded fear of persecution if she returned to her home country of Ghana because she is a lesbian, and is known as such.  The RRT was not satisfied of her claim to be a lesbian.  Even if she were, the RRT was not satisfied that she would face treatment amounting to persecution for that reason if she returned to Ghana.  It was therefore not satisfied that the appellant was a person to whom Australia had a protection obligation under the Convention.

4                     The appellant filed her application to this Court on 23 December 1998.  The grounds of the application were stated as follows:

“1.  Procedures required by the Act or regulations to be observed in connection with the making of the decision were not observed.

PARTICULARS

(a)               Will be supplied

                                    2.     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.

PARTICULARS

(a)               Will be supplied

            3.         The decision was induced or affected by fraud or by actual bias.

PARTICULARS

(a)               Will be supplied

                        4.         There was no evidence or other material to justify the making of the decision.

PARTICULARS

(a)       Will be supplied”

5                     On 10 February 1999 the solicitors for the appellant filed particulars relating to the application.  The particulars of ground 1 were:

“The Tribunal did not observe the procedures required to be followed by the Migration Act 1958 (section 420) in that it did not act according to substantial justice and the merits of the case, in that:

The Tribunal made a determination that the applicant was not a credible witness based on the following erroneous assessments of the evidence: …”

and there followed a series of particular criticisms.  The remainder of the particulars were as follows:

“As to Ground 2.

(a)               To the extent that facts were not found in favour of the applicant, this involved an incorrect interpretation of the law in that reasonable inferences were not drawn which would have enabled those facts to be determined in favour of the applicant.

(b)               The decision involved an incorrect application of the law to the facts as found in that adverse inferences drawn were not inferences it was reasonable so to draw.

In relation to Ground 2, the applicant relies on the aspects of the Tribunal decision specified in Ground 1 above.

Grounds 3 and 4 are not relied upon.”

6                     By a letter dated 9 July 1999 the parties were advised by the Court that the matter would be heard on 5 August 1999, and the parties’ attention was drawn to an earlier direction made for the filing and service of written submissions prior to the hearing date.  The outline of argument on behalf of the appellant was filed and served late on the afternoon before the hearing, and it was apparently shortly before 6 o’clock that the respondent’s legal representatives became aware of the substance of it.  The outline of argument referred only to the ground of actual bias pursuant to s 476(1)(f) of the Act, and the argument made it clear that the appellant was relying solely upon the reasons of the RRT to establish actual bias.

7                     Thus, the appellant, having abandoned the case of actual bias on 10 February 1999, sought to revive that ground late in the day before the hearing.  The appellant had been represented by the same solicitors throughout, although apparently counsel who appeared at the hearing had not been briefed for long.

8                     Although no evidence was called as to the reason for the u-turn on bias by the appellant, the reality was that the decision of the High Court delivered on 13 May 1999 in the matter of Minister for Immigration & Multicultural Affairs v Eshetu (1999) 73 ALJR 746 made all but the bias ground unarguable.

Application for adjournment

9                     Counsel for the respondent made clear that he was not in a position to deal with the bias case that day as, amongst other reasons, the claim of actual bias could not be properly dealt with except in the context of the hearing as a whole, which would necessitate consideration of the transcript which had not been prepared because it was not thought there was any bias case involved.  There was also discussion as to whether an allegation of actual bias should be proceeded with without the RRT member concerned at least being given notice of it, and whether there might be consideration given to consulting or calling the decision-maker personally.

10                  In the circumstances, not unnaturally, her Honour told counsel for the appellant that she was not prepared to entertain that ground of appeal on the day and pointed out that what was required was an application for an adjournment.  Counsel for the appellant responded:

“Yes, your Honour, that’s exactly what I’d be seeking, an adjournment for the purposes of …”

In arguing for the adjournment, counsel referred to the decision in Eshetu (supra) and the fact that he had come into the matter late.  Later, counsel for the appellant accepted that the case should be adjourned so that the transcript could be obtained, and recognised that the member could be informed. 

11                  Counsel for the respondent put to the judge that any explanation should be given by the solicitor who had acted for the appellant at all times, particularly bearing in mind that judgment in Eshetu was delivered on 13 May 1999.  He put that there had really been no explanation given for the u-turn.  Whilst conceding that the argument could not be described as hopeless, he put that the reasons of the Tribunal were a slight basis upon which to find actual bias, particularly where credibility was an important part of those reasons. The respondent did not point to any prejudice to the conduct of the actual case by reason of the adjournment.

Judgment below

12                  After adjourning to read Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 and some other authorities, her Honour returned and refused the adjournment, for reasons which were given at the time.  In those reasons, her Honour identified four main considerations which pointed against an adjournment.

13                  The first was delay.  Her Honour referred to s 478 of the Act as reflecting a parliamentary intention that applications of the kind before her should be made and, where possible, heard and determined promptly.  We agree that this is a relevant consideration to take into account.  Cases such as the present are not to be judged in the same way as ordinary commercial cases.  They are of obvious significance to an applicant, but there is also a significant public interest in having this kind of application dealt with promptly.  In the present case, for example, a person who claims to be a refugee arrived in Australia on 19 July 1997 but her application has not yet been finalised.  Even this is a modest delay compared with many cases which have come before this Court. 

14                  The second point was the deliberate abandonment and very late attempted revival of the ground of bias, unexplained by evidence, in circumstances where the appellant was legally represented at all times.  This was undoubtedly, in our opinion, a factor relevant to the judge’s discretion.

15                  The third point was the disturbance to the Court lists if the adjournment were granted.  Because of the attack made by the appellant upon this point, we should set out the substance of what her Honour said, which was:

“My diary between now and the end of the year is extremely busy.  Although I do not suggest that this matter could not be heard by me this year if the adjournment sought by the applicant is granted, the matter could not be heard by me before late October at the earliest – and even to do that would require me to allocate time to this matter which has deliberately been set aside for another purpose.”

This makes clear what is apt to be overlooked.  The relevant issue is not inconvenience to the judge or the Court – it is to other litigants.  The day set aside for the matter to be heard would be wasted if an adjournment were granted, and to find another hearing date in a timely fashion would mean displacing some other obligation – whether it was a hearing or writing of a judgment in another case is not to the point.  As the appellant criticised the weight which was given to this factor rather than its relevance, we shall return to it later.

16                  The fourth point was her Honour’s assessment of the strength of the case.  Without reproducing all that her Honour said, her view was that although, as had been conceded, the ground could not be said to be hopeless, it was not strong and in her view the applicant would face severe difficulties in establishing the ground.  Indeed, her Honour said that there was reason to conclude that the reliance upon that ground was what she described as a desperate attempt to find a peg upon which the appellant could continue to hang her application to the Court, faced with the consequences for her application of the decision in Eshetu.  This was, no doubt, a combination of her Honour’s view about the case itself, combined with the failure to explain the abandonment and revival of the ground of bias.

Issues on appeal

17                  Counsel for the appellant submitted that her Honour had written off the appellant’s case too readily, and in both written and oral submissions sought to persuade us that the case was strong.  On the other hand, counsel for the respondent put the submission that the case was not even fairly arguable.  We were not impressed by the latter submission, bearing in mind the concession made at the time that it could not be said that the case was hopeless.  On the other hand, we do not find any error in what her Honour said on this aspect of the matter.  A preliminary assessment of the merits of a proposed new case is not irrelevant in circumstances where an adjournment is sought in order to make that case.  The assessment must, of necessity, be tentative both because full argument is not appropriate, and because all of the evidentiary material is not before the Court at that stage.  In our opinion, the judge was perfectly justified in taking the view that an applicant who claims bias demonstrated only from the reasons of a tribunal has a very difficult task.  It is unlikely that the point could be made good without reference to the whole course of proceedings and all of the material before the decision-maker, including the transcript of what took place when the applicant was interviewed.  Citation of authority is not necessary for this point, but reference to Sun Zhan Qui (supra) is sufficient.  The consideration of bias in that matter involved a good deal more than reading the reasons of the Tribunal.  See also Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ.  Allegations of actual bias on the part of a member of a specialist tribunal carrying out an inquisitorial function need to be approached with considerable restraint by judges, accustomed to carefully regulated adversary proceedings, in courts and in differently organised administrative tribunals (cf Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282;  Eshetu per Gummow J at paragraphs 142 and 143).

18                  Furthermore, in our view, her Honour was quite justified in reviewing the position with some scepticism in view of the unexplained change of position.  She was entitled to take the view that the claim of bias had been dropped in a considered fashion, with the benefit of legal advice.  She was also entitled to take account of the fact that the High Court decision in Eshetu had removed the substratum of the application, and yet it was sought to raise the question of bias based, it was submitted to us by the appellant’s counsel, upon precisely the same matters which were particularised in relation to the other grounds.  In this connection, it is worth noting some remarks of Wilcox J in Sun Zhan Qui at 122, where he said:

“If Eshetu is overruled, disappointed applicants will have no choice but to search amongst those few grounds for an arguable ground of review.  It will not be surprising if, in their disappointment at the Tribunal’s decision, many claim actual bias.  The result will be to substitute for an inquiry into the character of the decision an inquiry into the character of the decision-maker.  Not only is such an inquiry invidious, it tends to miss the applicant’s grievance.”

19                  The decisions of the High Court in Eshetu (supra) and Abebe v Commonwealth (1999) 162 ALR 1, together with the decision of the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 very firmly reinforce the obvious legislative intent that this Court not become involved in the merits of the decisions of the RRT. These decisions are not narrow or technical. They should not be outflanked by argument as to the merits of decisions under the guise of an argument as to actual bias.  That is not to say, of course, that such a case is impossible to make.  It is, however, realistic to recognise the difficulty of doing so.

20                  Counsel for the appellant relied heavily in his submissions on bias upon the decision of Mansfield J in Asif v Minister for Immigration & Multicultural Affairs [1999] FCA 1487.  In our opinion, this reliance was misplaced because his Honour’s conclusion that there was bias in that case was based upon a careful consideration of the course of the actual proceedings.  It is a decision which, if correct, depends upon very particular facts.  It lends no assistance to a case made upon the reasons of a Tribunal alone.

Conclusion

21                  The ultimate question to which we return is whether, as submitted by counsel for the appellant, relying upon the decision of the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the judge accorded too much weight to what counsel described as “case management” in her decision. 

22                  In our opinion, she did not.  She correctly identified disturbance to her docket, and so to other litigants, as a relevant factor, along with other relevant factors.  The weighing of those factors was a discretionary judgment.  We find no indication that the discretion miscarried.  We do not regard the decision in JL Holdings (supra) as obliging the judge to grant the adjournment.  Firstly, the case does not enunciate any such general proposition.  Secondly, the circumstances of that case were very different from the present.  It was essentially commercial in nature, whereas this is a case involving the public interest.  In that case, the issue arose at a time some months before the hearing date and can be seen as truly part of case management.  Here, the application was effectively made on the day fixed for hearing, the point having earlier formally been abandoned. 

23                  The appeal is dismissed.  The appellant is to pay the costs of the respondent.

Associate:

Dated:              10 December 1999