FEDERAL COURT OF AUSTRALIA

“T” v Minister for Immigration & Multicultural Affairs [2000] FCA 467

MIGRATION – application for protection visa – allegation of actual bias against Refugee Review Tribunal – rejection of appellant’s evidence as not credible – questions directed to testing reliability of claims – whether conduct of hearing demonstrated actual bias – whether Tribunal misapprehended appellant’s evidence – whether misapprehension of evidence demonstrated actual bias in circumstances – whether Tribunal’s mind was foreclosed to his claims before hearing.

MIGRATION – application for protection visa – claim that there was no evidence or other material to justify making of decision.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss 36(2), 476(1)(f), 476(1)(g), 476(4)(b)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

Sarbjit Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported) applied

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 applied

Durairajasingham v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 469 referred to

Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 applied

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied

“T” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 686 OF 1999

DRUMMOND, MATHEWS & MANSFIELD JJ

12 APRIL 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay to the respondent his costs of the appeal to be taxed.

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

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of Moore J given on 30 June 1999.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 26 August 1998, which affirmed a decision of a delegate of the respondent of 15 January 1998 refusing to grant to the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

Background

2                     The appellant is a citizen of Tunisia.  He is a single man who, as the Tribunal accepted, is a qualified teacher of English and speaks Arabic, French, Russian and Italian.  He arrived in Australia on 10 January 1997 and applied for a protection visa under the Act on 14 April 1997.

3                     The Tribunal recorded the appellant’s claims to be a refugee under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act (“the Convention”) at some length.  It was necessary that the appellant satisfy the delegate of the respondent, and on review the Tribunal, that he is a refugee as defined in Art 1A(2) of the Convention in order to meet a criterion for eligibility for a protection visa:  s 36(2) of the Act.  The following is a brief summary of the appellant’s claims taken from the Tribunal’s reasons.

4                     The appellant comes from the south of Tunisia.  Whilst at university, in 1982, he became a member of the Progressive Nationalist Students.  When he finished university in 1987, he became a member of the Mouvement des Democrates Socialistes (“MDS”).  The MDS is one of the opposition political parties in Tunisia.  He was appointed to teach English at a secondary school close to the Libyan border.  He made secret visits to Libya to build up contacts between the MDS and Libya.  As an MDS representative  he also attended meetings of progressive Mediterranean socialist parties in various European countries, under the guise of a tourist on annual holidays.  Contact with foreign political parties was banned in Tunisia.  During the 1990 Gulf War, the appellant helped to arrange many pro-Iraqi anti-American demonstrations in his local area.

5                     Following that, his passport was taken by the police and on four occasions in 1990 and 1991 he was taken to the local police station where he was assaulted and verbally abused.  He was told that he was an “undesirable person”.  He left Tunisia in 1991 under an amnesty granted to undesirable people, on the condition that he could return to Tunisia for up to three months each year.  He taught in Oman for some years under some form of ‘Cooperation Scheme’ whilst remaining somehow attached to the Tunisian Ministry of Education.  He was not active in the MDS over the time he worked in Oman.  In September 1995, whilst in Tunisia, he applied to study in Russia.  He became aware that the MDS was about to criticise the government, and wished to leave Tunisia before that occurred.  When it occurred, the MDS was banned and some of its activists were arrested.  He returned to Tunisia between July and November 1996, before returning to Russia.  He was then granted a visa to study in Australia.  He returned to Tunisia for a further month (under the terms applicable to undesirable people) before coming to Australia in January 1997.

6                     That information in the visa application was complemented by further material submitted to the respondent during 1997, both in writing and at interview.

7                     The appellant in that material further claimed that he had been informed by his education employer in Tunisia that his employment had been terminated because he had been convicted in absentia of being linked to an illegal movement, and sentenced to seven years’ gaol.  Amnesty International reports confirmed that in October 1995, the leader of the MDS had been sentenced to eleven years gaol for charges relating to dealing with foreign agents.  He believed that his name had been given to the Tunisian authorities as an MDS activist, probably by the Libyans, but his reasons for that having occurred were speculative.

8                     The appellant maintained and expanded those claims when he gave evidence to the Tribunal.  In its reasons it has recorded in detail the questions asked of the appellant and his responses.  It can be seen that the Tribunal was testing many of his answers, and that it indicated to him some areas of his evidence that the Tribunal found difficult to accept.  In light of those exchanges, the appellant’s representative made a further written submission and provided further material on his behalf endeavouring to explain or expand upon matters which had emerged as matters of concern to the Tribunal, or to establish the reliability of aspects of the appellant’s claims.

The Tribunal’s Reasons

9                     The Tribunal, having recited the appellant’s claims and the course of the hearing, then commenced the section of its decision headed ‘Reasons for Decision’.  It referred at some length to background information concerning Tunisia, focussing upon its political history from the 1970s to recent times, including the status and role of the MDS as a secular opposition party.  It noted that the then leader of the MDS had been detained in October 1995 for open criticism of the government’s record on human rights and political freedoms, and that some others who criticised the government on that score were harassed and also detained.  It referred to an extensive list of sources for its findings on that topic.

10                  Then it turned to consider the appellant’s claims.  In short, it rejected them.  It did not consider the appellant was a credible or a truthful witness.  It did not accept that the appellant was an active member of the MDS from 1987 or of any other political movement, or that he was forced into semi-exile during an ‘amnesty’ in 1991 because he was considered an ‘undesirable person’.  It followed that the Tribunal did not accept that the appellant had been tried in absentia for offences relating to his political activities and sentenced to seven years’ imprisonment.  It found that the letter purportedly from the Tunisian Ministry of Education regarding the charges and the appellant’s dismissal from employment was a fraudulent document concocted by or on behalf of the appellant.  The Tribunal gave reasons for those findings, by reference to inconsistencies and improbabilities in the appellant’s evidence, to the stage of consideration of his application at which certain matters were raised by him, and to inconsistencies between his evidence and events which the external material established.  It also observed:

“I consider the fact that [the appellant] continuously held a Tunisian passport issued through appropriate channels, obtained employment in Oman with the assistance of the Tunisian Ministry of Education and travelled to and from Tunisia on a number of occasions between 1991 and 1996 [provides] a clear indication that the authorities did not have an adverse interest in him during this period.”

11                  The Tribunal did not accept, for the same reasons, that the appellant had been involved in leading pro-Iraq demonstrations in 1990 or 1991, or that he was questioned by police as a result.

12                  Thus the Tribunal concluded that the appellant was not a person to whom Australia has protection obligations under the Convention, so he was not entitled to a protection visa.

The grounds of review

13                  The appellant sought review of that decision.  His application was heard by Moore J.  It was contended before Moore J that

(1)                    the decision of the Tribunal was affected by actual bias:  s 476(1)(f)

(2)                    there was no evidence or other material to justify the making of the decision:  s 476(1)(g), because the Tribunal based the decision on the existence of a particular fact and that fact did not exist:  s 476(4)(b).

14                  Other matters argued before Moore J were not able to be pressed in the light of the High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

15                  Those two grounds of review are maintained as the grounds of appeal now before the Court.

16                  The appellant was represented by counsel before Moore J. He appeared in person on this appeal.  His oral submissions were very brief.  To ensure that his grounds of appeal are properly understood, regard has been made to the way in which the appellant’s case was put before Moore J as well as his written and oral submissions on the appeal.  The transcript of the hearing before the Tribunal has been read.  In addition, at the request of the parties, the recording of the hearing before the Tribunal has been listened to.

The claim based upon s 476(1)(f)

17                  There was no real dispute between the parties as to what constitutes actual bias.  The decisions of Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported) (“Singh”) and of the Full Court (Wilcox, Burchett and North JJ) in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (“Sun Zhan Qui”) helpfully discuss the relevant principles.

18                  In Sun Zhan Qui at 127 Burchett J said:

“In my opinion, the statute, when it used Devlin LJ’s expression “actual bias”, substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially.  I say “at least in some respect” because the statute extends to the situation where “the decision was … affected … by actual bias”.  The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind.  Bias may be subconscious, provided it is real.  Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach.  It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional.”

19                  In that case North J described the position in the following way at 134:

“Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant …”

20                  It is apparent, as the observations of Lockhart J in Singh make clear, that the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias.  In Sun Zhan Qui at 123 Wilcox J stated that “There will be actual bias only when preliminary views are incapable of alteration.”  Determining whether actual bias has been shown must be done in the context of the hearing as a whole, and including all the material before the decision-maker.  It will often be the case that the material before the decision-maker gives rise to preliminary views about the merits of the application under consideration, or some aspects of it.  It is appropriate in those circumstances for the decision-maker to draw to the attention of the person seeking the decision, or its review, those views and to invite comment or a response upon them.  In many instances, it would be remiss of the decision-maker not to do so.  The decision-maker must, of course, remain willing to be persuaded that such preliminary views should be departed from in light of the response, and any other relevant information.  Sometimes it will also be the case that the decision-maker regards the information supplied by a visa applicant to be of doubtful reliability.  It is not inappropriate for the decision-maker, in such circumstances, to explore the reliability of information supplied by testing the visa applicant’s knowledge of relevant material touching on its reliability or by firmly questioning the visa applicant about the information.

21                  The hearing before the Tribunal is “semi-inquisitorial”:  Durairajasingham v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 469 per Davies J.  It is not of itself indicative of bias, in that context, that the decision-maker should on occasions interrupt answers which are not responsive to the question asked, or persist in asking questions which have not been answered or inadequately answered.  Ultimately, as the cases indicate, the question is whether the decision-maker has pre-judged the visa application so that the decision maker was not open to persuasion.  Indeed, it would only be in a fairly extreme case that such conduct by a judge sitting in a court of law would legitimately be open to a complaint of actual or even apparent bias.

22                  Lockhart J also pointed out in Singh that:

“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.”  (References not included).

23                  The observations of Burchett J in Sun Zhan Qui cited above make the same point.

24                  The appellant contended that the Tribunal’s bias was apparent from the transcript and tape recording of the hearing before the Tribunal, including that the Tribunal misconstrued and misrepresented many of the appellant’s answers so as to be able to make adverse findings on crucial issues.

25                  The appellant’s written submissions asserted that the bias of the Tribunal is demonstrated particularly by questions concerning:

·                    the foundation of the MDS

·                    the MDS leadership

·                    his membership of the MDS

·                    his participation in meetings in Mediterranean countries.

26                  It is clear from the course of the hearing that the Tribunal member had carefully considered independent country information about Tunisia in the context of the appellant’s claims.  It is also apparent that she had formed the view, at least at a preliminary level, that the appellant’s claims did not readily accord with that independent information.  It also emerged during the hearing that the appellant’s claim to have been granted some form of amnesty, requiring or permitting him to go into voluntary exile from Tunisia but upon terms that he could return to Tunisia for up to three months in each year, was one which she regarded as inherently unlikely (in addition to being a claim for which there was no foundation in the independent country information about Tunisia).

27                  The Tribunal then directed its questioning, at least in part, to testing the reliability of the appellant’s claims against that independent country information.  It is not contested that the Tribunal could have regard to the independent country information, nor that the Tribunal’s views as to what that information disclosed were reasonably open to the Tribunal.

28                  It is apparent that the appellant demonstrated to the Tribunal some knowledge of Tunisian political affairs.  His representative before the Tribunal urged that the appellant’s understanding of the complexities of Tunisian affairs supported his claims.  The Tribunal observed, in relation to that contention:

“It is true that [the appellant] has some knowledge of Tunisian political events.  However, he is a well-educated man and the mere fact that he has some knowledge of political events in his home country does not mean that he himself was involved in these events.  And, as discussed above, many of his claims regarding politics in Tunisia were out of keeping with other information before the Tribunal.”

29                  The four particular matters addressed by the appellant provide a focus, at least initially, to determine whether the Tribunal member was biased.

30                  The Tribunal, early in the hearing, asked the appellant when the MDS was first formed and who formed it.  The appellant volunteered the answer that it was one of the parties that “came to existence out of the blue in 1981”.  The following exchange occurred:

“Q.     … I want to begin by asking you some questions about the MDS.  Can you tell me when the MDS was first formed and who formed it?

A.            Well, the MDS is one of what we call in Tunisia the mushroom parties, this is a political jargon, these are the parties that came to existence out of the blue in 1981.

Q.            So it had no existence prior to 1981?

A.             Not really, because these things related to what happened in  my own town in 1980, because in 1980 there was an armed revolution heavily backed by Libya.

Q.            But I just want to talk now about the MDS.  You say it didn’t have any existence before 1981.

A.             No.”

31                  The appellant then told the Tribunal that the MDS was formed in 1981 by Ahmed Mestiri, and was a legalised opposition party in 1981.  The Tribunal found, upon other material before it, that the MDS was first formed in 1977 and that its existence was tolerated by the government from that time on.  It further found that the MDS did not gain legal recognition until 1983, and that the appellant was unaware of the requirement that political parties gain 5 per cent of the vote in the 1981 elections in order to gain legal recognition.  The appellant disputes that the MDS did not gain legal recognition until 1983, or that political parties had to gain 5 per cent of the vote in the 1981 elections in order to gain legal recognition.  There was information before the Tribunal upon which the Tribunal made the findings referred to.  Partly, that information was provided to the Tribunal by the representative of the appellant on 14 August 1998, as part of a submission concerning the appellant’s credibility made following the hearing.  Those submissions to a significant degree reflect the submissions now put by the appellant on this topic.

32                  The appellant’s written contention is that he thought the Tribunal’s questions were too imprecise.  He submits that they should have distinguished between the emergence of the MDS as a movement and its official start as an organised structured political party.  He claims that at the time of the hearing he was reluctant to have the questions clarified as he did not wish to agitate the Tribunal member, and thought he would later have an opportunity to explain his concerns during the hearing.  He says that his answer to the question of when the MDS was formed was ‘not really’, and that that qualified answer was wrongly taken as if it were simply that the MDS was formed only in 1981. He also refers to some material which, he contends, demonstrates that (contrary to the finding of the Tribunal) the MDS did not exist as an organised political party before 1981 and that it did gain recognition before 1983.

33                  As the passage referred to in par 29 above demonstrates, it was the appellant who first provided the 1981 date.  He did not qualify his answer to suggest the MDS had some earlier existence.  The expression ‘not really’ drew attention to the events in 1980 which, according to the appellant, led to its inception.  Later in the hearing, the Tribunal gave the appellant the opportunity to comment on any of the matters raised by the Tribunal member during her questions, and later again she invited the appellant’s migration agent, who had been present throughout the hearing, if there was anything that person wished to add.  The appellant, of his own initiative, raised a number of matters, and then after his migration agent suggested further topics he gave more information.  The appellant did not then provide the information which he now submits he wished to provide to qualify his earlier answers on the topic of when the MDS commenced.  It is apparent that he was given the opportunity to do so.  Subject to considering the appellant’s contentions that, in the respects mentioned, there was no evidence or other material to justify the making of the decision, the appellant’s complaints in part seek to reargue on the merits findings of the Tribunal which provided the basis for its criticism of the appellant’s credibility.  That is not a course open to the Court.

34                  The Tribunal’s questions expressed in a straightforward way may well have been designed to elicit from the appellant information to ascertain what he knew of the development of the MDS.  The Tribunal member may well have suspected that he did not know much about that.  The answers given would have confirmed any such suspicion.  If the Tribunal member did not harbour such a suspicion, the answers given were inconsistent with the independent information so that the Tribunal formed the view that the appellant did not know much about that.  It does not demonstrate bias on the part of the Tribunal to have tested the appellant’s knowledge on a topic on which he could reasonably have been expected to have provided reliable information.  Nor does it demonstrate bias to conclude, in the light of his answers, that he did not accurately know about when the MDS was formed, and to use that conclusion in the circumstances as a matter relevant to the assessment of the overall reliability of his claims.  The series of questions and answers, and its use by the Tribunal, does not demonstrate that the Tribunal had foreclosed its mind to the appellant’s claims when the hearing was embarked upon.  If the appellant had given different answers, the Tribunal may well have reached a different conclusion as to the appellant’s level of knowledge about the MDS.

35                  The appellant was asked by the Tribunal about the criteria for legalisation of political parties in Tunisia in 1981.  He identified four “major criteria”.  He did not refer to the criterion that a political party had to get 5 per cent of the vote in the 1981 election to be eligible for legal recognition.  The Tribunal, later in the hearing, took that point up with the appellant but he did not then respond to explain that he had overlooked that criterion or regarded it as less important.  It may be that the Tribunal unfairly read into his responses on the topic a lack of awareness of that criterion, as it does not appear that the appellant’s answers necessarily show that he was unaware of that criterion.  It may also be that the appellant’s understanding of “legal recognition” was different from that of the Tribunal.  Even if those matters be correct, they do not show that the Tribunal embarked upon the hearing with a closed mind.  It is not bias to misapprehend evidence about when the MDS was legally recognised by failing to apprehend that the appellant may have been using a term in a way different from the Tribunal, or to read into the appellant’s answers that he was unaware of that particular criterion.  Such matters, taken in conjunction with others, may demonstrate bias in all the circumstances of a particular case.  But the Tribunal, in the present matter, did invite the appellant to explain what the Tribunal regarded as a significant omission in his evidence of the relevant criteria.  He did not proffer an explanation.  Indeed, by way of an aside, it may be noted that his written submissions on this appeal argue that no such criterion existed in 1981.  The Tribunal’s use of his failure to recognise that criterion in the circumstances as a matter relevant to its assessment of the overall reliability of his claims does not in all the circumstances lead to the conclusion that the Tribunal was biased.

36                  The Tribunal rejected the appellant’s evidence that Ahmed Mestiri ceased to lead the MDS in 1986, and thereafter was its Secretary General (a lesser position) until 1989.  It referred to independent evidence indicating that Ahmed Mestiri was the leader of the MDS and its Secretary General before 1986, and that he remained its leader until 1989.  It also found that the appellant was unaware of the circumstances of Ahmed Mestiri’s detention by Tunisian authorities in 1986.  The appellant’s written submissions maintain, and explain in detail, the claim that Ahmed Mestiri ceased to act as the leader of the MDS from 1986.  Those submissions do not suggest that the Tribunal has incorrectly summarised his answers, nor that it has incorrectly described the effect of the independent information about Tunisia.

37                  The same observations may be made about the appellant’s written submissions that the Tribunal misunderstood, and therefore unfairly criticised, the appellant’s evidence of his awareness of the circumstances of Ahmed Mestiri’s detention.  The appellant’s written submissions really reflect much of what he said in evidence.  In that sequence of his evidence the following appeared:

“Q.      So what was he charged with?

A.            With just nothing, he had never been in prison.  They just write on his number, his - - -

Q.            Never gaoled?

A.             No.

…

Q.            Okay.  So he didn’t – so what happened after 1986?  Who was the leader of the party there?

A.             In 1986 he was disqualified, which was a clear message to the MDS, “If this man remains at the top of the party, the whole party is going to be disqualified.”  So what did they do?  So Mohammed Muada, the new leader - - -

Q.            So he took over in 86?

A.      Yes, he took over in 86, effectively.”

38                  The written submissions maintain the accuracy of that evidence.  In particular, the appellant says that Ahmed Mestiri was never physically put into detention.  However, there was independent evidence before the Tribunal that Ahmed Mestiri was in fact detained and released in December 1987.

39                  The Tribunal’s reasons in this regard do not provide any foundation for concluding, either of themselves or in conjunction with other material, that the Tribunal by its form of questioning, or by any unfair or incomplete or inaccurate slant it took upon the independent material, had foreclosed its mind to a consideration of the appellant’s claim.

40                  The Tribunal was also influenced in its assessment of the appellant’s reliability by the vagueness of his evidence about his meetings on behalf of the MDS with other political parties in European countries.  The appellant’s evidence on the topic includes the following:

“Q.      Who were the meetings in the Mediterranean with?

A.             There were some parties.

Q.            Which parties?

A.            Well, of course, the countries with which we were dealing had actually no parties, because at that time - - -

Q.            Greece, I think they had a few parties.

A.             Yes.

Q.            Yes.  What were the parties that you had relations with as MDS representative?

A.             Well, I cannot remember any party from Greece but we met with some people – some Kurdish people, some people from Bulgaria, which are not the party, of course, the communist party, from - - -

Q.            This is the social democrat party we’re talking about?

A.             Which one?

Q.            The MDS.

A.             Yes.

Q.            Yes.

A.             I’m talking about the people with whom we met in the meetings.

. . .

Q.            How often did you go to these meetings?

A.             At least four times.

Q.            Four times?

A.             Yes.

Q.            You can’t name any party that was present there?

A.             I had no contact with them.

…

Q.            Now, you must know what the parties were, surely.

A.             Well, I didn’t have anything with parties from Greece - - -

Q.            I’m not just asking about Greece, I’m asking the names of these political parties, whoever they were.

A.             Well, the Kurdish - - -

Q.            Which Kurdish?

A.             One of the Kurdish parties was there.

Q.            Which one?

A.             I don’t remember the - - -

Q.            Do you remember the name of any - - -

A.             No.

Q.            - - - any political party at all that you had discussions with in these (indistinct) semi - - -

A.             No.

Q.            No.

A.             No.

Q.            Not one?

A.      No.”

41                  The Tribunal said:

“I find the claim that he would be selected to represent the MDS at such meetings implausible given the fact that he never held an official position in the party and his statements regarding the party’s lack of trust in him.  Furthermore, he was unable to name any of the parties involved in these meeting, nor the substance of the discussion which took place, a clear indication that he never attended any such meetings.”

42                  The appellant’s written contentions explain that he gave those answers to protect the identify of those with whom he had met.  He did not explain that to the Tribunal at the hearing, nor in the subsequent letter from his representative to the Tribunal.

43                  It is not contended that the Tribunal’s observations about his evidence are themselves unfair.  The contention is really an attempt to give further evidence on the topic.  The reasons of the Tribunal in this respect do not support the allegation of bias made against it.  The Tribunal’s use of the findings on the topic as part of the material upon which it assessed the overall reliability of the appellant’s evidence also is not indicative of bias on its part.

44                  The appellant also submitted that the Tribunal’s reasons concerning the appellant’s claim to have been granted a form of amnesty in 1991 supported his claim that the Tribunal was biased.  The Tribunal rejected the claim that the appellant was forced into semi-exile during a form of amnesty in 1991 because he was considered an undesirable person.  It noted that many political prisoners in Tunisia were released under amnesties granted in 1987, and that opponents of the Tunisian government have fled Tunisia since then.  The appellant’s particular claim was not supported by any independent information about Tunisia.  It was inconsistent with certain of that independent information in 1991, to the effect that dissidents were restrained from leaving Tunisia by confiscation of their passports.  The Tribunal also regarded the nature of the exile, involving permitted return for three months of each year implausible, and hard to reconcile with the appellant remaining an employee of the Ministry of Education until 1997.  The written submissions of the appellant really do no more than seek to re-argue those findings.  They do not advance the appellant’s claim that the Tribunal was biased.  To make a finding, or series of findings of fact, upon identified material does not tend to demonstrate bias merely because there is other evidence which might lead to a different finding or series of findings of fact.  In this respect, the appellant’s contentions amount in substance to an attempt to re-argue the merits of the Tribunal’s decision.

45                  The appellant’s written submissions further complain of the finding that the appellant was not at any time a member of the MDS.  That was a conclusion reached by the Tribunal after it had considered his evidence generally and found it unreliable.  It flowed from the Tribunal’s rejection of his claim to have been highly positioned in the MDS, as the Tribunal regarded his level of awareness of matters relevant to the MDS to be inconsistent with that which the Tribunal expected from a person with that claimed level of involvement.  It had regard to the fact that many educated Tunisians may have had a level of knowledge of political events in Tunisia without active involvement in the MDS.  The Tribunal also had regard to the nature of the appellant’s claimed participation in the MDS which was inherently unlikely, such as the nature and circumstances of his semi-exile, and his “secret” membership of a secular opposition party, and his meetings with other political parties in Mediterranean countries.  It placed weight upon his ability to move freely into and out of Tunisia between 1991 and 1996 as demonstrating that the Tunisian authorities had no adverse interest in him.

46                  All of those matters are matters to which the Tribunal could properly have regard in reaching its overall conclusion as to the extent of any involvement the appellant had in the MDS.  The written submissions explaining why the appellant, and others in the Arab Unionist Progressive Students group, joined the MDS to further their objective of Arab country unification again really reflect what the appellant said to the Tribunal during the hearing.  It does not of itself demonstrate bias on the part of the Tribunal to have rejected that evidence.

47                  Those matters lead to the rejection of the submissions of the appellant that the reasons of the Tribunal themselves demonstrate bias on the part of the Tribunal.  They also largely deal with complaints that the form of the Tribunal’s questions demonstrate that the Tribunal selectively took particular information to unfairly test the appellant’s claims so as to somehow provide justification for their rejection, without approaching the consideration of his claims with a mind open to persuasion.  The transcript and recording of the hearing does reveal that the Tribunal’s questioning of the appellant was firm and vigorous.  As noted earlier, the questions appear to have been largely directed at testing the appellant’s knowledge of matters surrounding the MDS.  Given his claimed level of involvement in the MDS, it does not demonstrate bias to have embarked upon that style of questioning especially as the Tribunal had considered the appellant’s claims and the independent information about Tunisia in advance of the hearing and had formed some reservations about the reliability of the appellant’s claims.

48                  The Tribunal member did, on a number of occasions, cut off the appellant in the course of his answers.  Sometimes that was done because he was straying from answering the question.  Sometimes, it appears, it was impulsive on the part of the Tribunal member to follow up that part of the answer which to then had been given.  In those cases, however, the Tribunal member does not appear to have cut off the answer to prevent an answer being given which did not fit into a pre-conceived mould the Tribunal had already formed.  In some instances, the interruption appears to have been to have confirmed to the Tribunal an answer just given, which the Tribunal regarded as significant.  Generally, the Tribunal allowed the appellant to give considered answers, sometimes quite long ones.  As noted above, the Tribunal towards the end of the hearing gave the appellant, and his migration agent, the opportunity to give any additional evidence or to make any further responses they wished to make.  That opportunity was not restricted, and was taken up.  After the hearing, the appellant through his representative made a further detailed submission responding to matters which the Tribunal member during the hearing had raised as matters of concern to her touching on the appellant’s reliability.

49                  The Tribunal member was generally courteous during the hearing.  On a few occasions, she became somewhat forceful in her questioning.  She commented to the appellant, after a period of questioning, that he seemed to know little about the MDS, and later explained those matters which gave rise to her concern.  She invited his response to those comments.  As a later exchange in the hearing revealed, the Tribunal member was acting upon the independent information about Tunisia and the appellant asserted that some of that information was not correct.  It would be fair to say that, on a few instances, the Tribunal member was by her tone and by the content of her questions somewhat facetious.  That attitude did not pervade the hearing.

50                  There is one exchange in the course of the hearing upon which there was particular focus.  At the point where the Tribunal had completed questions on the matters of interest or concern to the decision-maker, the appellant was invited to refer to any other material relevant to his claim.  The appellant was clearly aware by then that his reliability was in question.  The following exchange occurred:

“A.      So I don’t know if there is anything I can add but the other point is that you cannot accept any other arguments, apart from – no personal reasons, no any other  - -

Q.      Well, I can accept – I mean, I’m happy to listen to anything that has to do with the definition of a refugee.  If there’s some other reason why you want to stay, I’m happy to hear it too but it’s just that it’s not going to make any difference.”

51                  In context, that comment by the Tribunal member that “it’s not going to make any difference” relates to the suggestion by the appellant that personal reasons might advance his claim.  The Tribunal member is distinguishing between matters which are relevant to whether the appellant is a person to whom Australia owes protection obligations under the Convention, that is in practical terms whether the appellant is a refugee, and matters which are not relevant to that question.  The response of the Tribunal does not advance the appellant’s claim that the Tribunal had a closed mind on the question of whether he was a refugee.

52                  The overall impression gained from reading the transcript of the hearing and listening to the recording of the hearing does not indicate that the Tribunal member was biased in the sense explained by the cases.  It is the function of the Tribunal to make findings on facts relevant to the particular visa application.  The Tribunal is entitled to have regard to independent country information.  Often such information provides a sound factual backdrop to an application for a protection visa.  In the present case, the factual backdrop did not accord with the evidence of the appellant.  The Tribunal was obliged to decide where the facts lay, and chose to accept the factual backdrop provided by the independent information where it differed from the appellant’s evidence.  Having made that decision, it followed in the Tribunal’s view that the appellant’s evidence on those matters was not reliable.  It is in the nature of decision making that the mind may waver on matters as the evidence unfolds.  The Tribunal was entitled to consider in advance of the hearing the information available through the transmission of material that was relevant to the decision of the Minister’s delegate:  s 418 of the Act.  The crucial question is whether the Tribunal, having considered that material, had a mind foreclosed to the appellant’s claim or was open to persuasion in relation to his claim.

53                  For the reasons given above, neither the course of the hearing nor the Tribunal’s reasons lead to the conclusion that the Tribunal did approach the hearing with a mind closed to the appellant’s claims.

The claim based upon s 476(1)(g)

54                  The alternative ground for review which was raised in the notice of appeal was based upon s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision.  Section 476(1)(g) is informed and limited by s 476(4) of the Act.  It is a “gateway” through which the appellant must pass to establish the ground of review under s 476(1)(g):  see discussion of equivalent provision of Administrative Decisions (Judicial Review) Act 1977 (Cth) in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521.  The matter was not the subject of either written or oral submissions on the appeal.  The outline of contentions before Moore J indicated that it was s 476(4)(b) which the appellant relied upon, that is that the decision was based upon the existence of a particular fact and that fact did not exist.

55                  In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (“Curragh”) Black CJ (with whom Spender and Gummow JJ agreed) said in respect of the analogous provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) at 220-221:

“The fact in question was clearly a “particular fact” and, in my view, the decision was “based” upon it.  If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact.  In Bond’s case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to “proof of the non-existence of a fact critical to the making of the decision” [my emphasis].  See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincuss JJ) used the word “critical” to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.”

56                  The appellant’s further written submissions of 18 March 1999 before Moore J provide the clearest identification of the particular facts upon which the decision was said to be based and which are said not to exist.

57                  The fundamental fact in issue is the finding of the Tribunal that it was not satisfied that the appellant was an active member of the MDS after leaving university in 1987.  It is accepted in those submissions that that conclusion by the Tribunal was based upon a series of “sub-findings” which, if sustainable, would provide the foundation for that overall lack of satisfaction.  The submission was therefore directed to showing that each of eleven “sub-findings” were of facts which did not exist.  It is appropriate to determine the extent to which it is made out that each of those eleven findings did not exist before considering whether, to that extent, the findings were “critical to the making of the decision” (to use the phrase used by Black CJ in Curragh in the passage quoted above).

58                  The eleven sub-findings which, in terms of s 476(4)(b), were said not to exist were

(1)               the appellant claimed that the MDS was first formed in 1981;

(2)               the appellant claimed that the MDS was a legal political party from 1981;

(3)               the appellant was unaware of the requirement that political parties gain 5 per cent of the vote in the 1981 elections in order to gain recognition;

(4)               the appellant claimed that MDS founder Ahmed Mestiri ceased to lead the MDS in 1986 when it was falsely alleged that he had been sentenced to prison and he was thus banned from participating in the elections that year;

(5)               the appellant claimed that Ahmed Mestiri held the position of Secretary-General from 1986 until after the elections of 1989, although he also claimed that the position of Secretary-General was merely an honorary one;

(6)               the appellant claimed that Ahmed Mestiri is still a member of the MDS;

(7)               the appellant was unaware of the circumstances of Ahmed Mestiri’s detention in 1986 and claimed that Ahmed Mestiri was never actually charged with any offence;

(8)               the appellant claimed that the MDS has been banned and its members were being pursued;

(9)               the appellant’s claim that he was a secret member of the MDS was out of keeping with the other evidence that the MDS is the largest secular opposition party in Tunisia and operates openly and legally;

(10)           the appellant’s claim to represent the MDS at meetings with other parties in the Mediterranean region was implausible, given the fact that he never held an official position in the MDS and in light of his statements that the party had a lack of trust in him; in addition the appellant was unable to name any of the parties involved in the meetings, nor to provide the substance of any discussion which took place; and

(11)           the appellant’s claim that he joined the MDS because there was no group or party pursuing the pan-Arabist or unionist cause outside the universities, as pursuing such goals was against the Tunisian constitution.

59                  The matters referred to in (1), (2), (4), (5), (6) and (8) above all relate to the Tribunal’s understanding of the appellant’s evidence.  It is of course quite possible for such a matter to constitute to a critical fact which can be shown not to exist.  An example would be where the Tribunal attributed to a visa applicant a claim which was not made, and used that attributed claim as the reason why the visa applicant’s overall reliability was rejected.

60                  In relation to those matters, however, it is not shown that the particular fact, namely the making of the particular claim by the appellant, did not exist.  The discussion earlier in these reasons (pars 29-32) shows that there was material on which the Tribunal could attribute to the appellant the claim in (1) above.  The submissions put on the appellant’s behalf before Moore J invited a different interpretation of his answers, but it was open to the Tribunal to make those findings as to the nature of his claims on the appellant’s evidence for the reasons discussed above in those paragraphs.  There was scope, as Moore J observed in his reasons, for misunderstanding between the terms ‘legalisation’ and ‘official recognition’ but later in the hearing the Tribunal clearly pointed out the difference to the appellant.  His evidence was that both the Communist Party of Tunisia and the MDS were ‘legalised’ in 1981.  The independent evidence was that only the Communist Party of Tunisia was officially recognised in 1981, yet the appellant did not distinguish between the position of the two political parties in that regard.  His evidence about the criteria for legalisation or official recognition did not suggest any need to distinguish between those two standings.  It has not been shown, therefore, that the appellant did not make the claim attributed to him by the Tribunal in (2) above.

61                  The material discussed above (par 36) also clearly shows that the appellant claimed that Ahmed Mestiri’s role as leader of the MDS ceased in 1986.  The appellant’s counsel before Moore J closely analysed the independent material before the Tribunal in an endeavour to demonstrate that Ahmed Mestiri did in fact cease to act as leader of the MDS at that time.  It is sufficient to observe that that material does not show that fact.  The submissions, in their close analysis of the text of those sources of information, only go so far as to demonstrate that on a certain view of parts of that material the appellant’s claims about Ahmed Mestiri’s role in the MDS after 1986 are correct, but equally they do not show that the Tribunal’s understanding of those materials is incorrect or was not reasonably open.  They do not show that the composite of particular facts in (4) above did not exist.  The particular facts in (5) above are also not shown not to exist; indeed the appellant did say (as the recording of the hearing discloses) that Ahmed Mestiri did hold that honorary position.  The transcript records the following:  “… the secretary general, an (indistinct) position, …” but the recording clearly reveals the word ‘honorary’ was used.  The submissions of the appellant before Moore J accept that.  It is also clear from the transcript of the hearing that the appellant did claim that Ahmed Mestiri was still a member of the MDS; the facts in (6) above are also not shown not to exist.  Finally, in relation to the claims of the appellant which were said not to exist, it is not disputed the claim referred to in (8) above was made in the written submissions before Moore J.

62                  The evidence relevant to (3) has been briefly discussed earlier in these reasons (par 34).  It has not been shown that the criterion for official recognition of having obtained 5 per cent of the vote in the previous election did not exist.  It was also open to the Tribunal, in the light of the appellant’s evidence, to conclude as an inference that he was unaware of that criterion.  He did not mention it when asked to list the major criteria for official recognition, and when later in the hearing the particular criterion was brought to his attention the appellant did not claim to have been aware of it as applying to the MDS.

63                  As to the particular facts in (7) above, there was independent material before the Tribunal that, in 1986, Ahmed Mestiri was detained on charges of illegal political assembly and was sentenced to a four month prison sentence “much of” which was served under house arrest.  The appellant’s evidence was, as noted earlier in these reasons (par 36) that Ahmed Mestiri had been charged “with just nothing” and had never been imprisoned.  It is not shown that the Tribunal’s construction of his evidence, when compared to the independent country information, was not warranted.  Still less is it shown that the particular facts referred to in (7) above did not exist.

64                  The appellant’s evidence was that his position in the MDS was at the top of the party but at a secret level.  The written submissions contended that, in the light of other evidence from the appellant, the appellant’s reference to ‘secret’ is to the effect that his membership of, and activities for, the MDS were not made public.  The Tribunal, by its questions, showed that it regarded the secret status of the appellant as curious, but its reasons do not show that it attributed to the appellant a claim he did not make.  There was independent country information that the MDS is a large secular opposition party which operates openly and legally.  The written submissions for the appellant before Moore J essentially complain that the Tribunal was unduly reactive to the concept of secret membership.  That point, even if made out, does not lead to the conclusion that the particular facts in (9) above did not exist.  There is evidence to support the Tribunal’s findings, and that evidence then entitled it to make the observation complained of.

65                  The matters in (10) above can be briefly dealt with.  In the evidence quoted above (par 39) there is a foundation for the Tribunal’s findings and observations.  In so far as that part of the reasons of the Tribunal comprises particular findings of fact, it is not shown that those facts did not exist.

66                  The matter referred to in (11) above is said to be significant because the appellant said in evidence that there was “no better choice” for those pursuing pan-Arabist objectives after leaving the university than the MDS, not that there was no other group or party pursuing those objectives.  The gravamen of the Tribunal’s comment is that the appellant, and his political associates at university, chose the MDS as the political vehicle to pursue their pan-Arabist objectives, although it did not share those objectives, whereas there were other parties which in fact publicly shared those pan-Arabist objectives.  That is, the Tribunal’s observation is that there were better choices available but the appellant, despite his professed political activities, was unaware of them.  There is no particular fact which the Tribunal has found which, in that light, is shown not to exist.  The difference between the appellant’s evidence that there was no better choice, and the Tribunal’s characterisation of his evidence that there was no other choice, is not one which diminishes in any way this reason of the Tribunal for not being satisfied about the appellant’s reliability.

67                  Accordingly, the alternative ground of review has also not been made out.

Conclusion

68                  The appeal should be dismissed with costs.

Associate:

Dated:              12 April 2000