FEDERAL COURT OF AUSTRALIA

Soltanyzand v Minister for Immigration & Multicultural Affairs

[2001] FCA 1168

MIGRATION – application for protection visa – whether there occurred actual bias by the Tribunal – whether primary judge erred in determining no error of law in manner of linguistic interpretation of Tribunal hearing.

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 referred to

Re Refugee Review Tribunal ex parte H [2001] HCA 28 referred to

Ismail v Minister for Immigration & Multicultural Affairs (1999) FCA 1555 referred to

Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 referred to

MOHSEN SOLTANYZAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 129 of 2000

SPENDER, LEE, TAMBERLIN JJ

28 AUGUST 2001

SYDNEY (HEARD IN PERTH)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a single judge of the Court, Carr J, who on 12 July 2000 in Perth, dismissed an application which sought an order of review of a decision of the Refugee Review Tribunal made on 17 December 1999 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.

2                     The appellant is a male citizen of Iran who was born on 5 May 1970.  He arrived in Australia on 16 January 1999.  On 22 January 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the Department).  That application was refused on 17 February 1999.  On 26 February 1999 the appellant applied to the Tribunal for review of that decision.  On 9 June 1999 the Tribunal, which can be referred to as “the First Tribunal”, affirmed the decision of the Minister’s delegate.  The appellant then sought judicial review of that First Tribunal’s decision.  On 7 September 1999 orders were made by Lee J, by consent, setting aside the first Tribunal’s decision and remitting the matter to the Tribunal, differently constituted, for reconsideration.  As earlier indicated the Tribunal on 17 December 1999 affirmed the decision of the delegate of the respondent not to grant a protection visa to the appellant.

3                     Initially, the appellant in his application to the Federal Court to review the decision of the Tribunal, was unrepresented.  The initial hearing in the Federal Court was adjourned, the trial judge having referred the applicant pursuant to O 80 r 4(1) of the Federal Court Rules for the kinds of assistance referred to in O 80 r 5.  When the matter resumed before the Federal Court on 6 June 2000, the appellant was represented by Ms A.M. Sheehan of counsel who appeared for the appellant on his application pro bono.

4                     In the hearing before the primary judge, two grounds only were pressed.  They were:

(i)           the Tribunal erred in law in failing to provide adequate or proper interpreting services.

(ii)         The Tribunal was affected by actual bias in proceeding to consider the case from a pre-conceived opinion. 

5                     It was submitted to the primary judge that the issues for determination by the Tribunal, including that of his credit, were affected by unconscious but actual bias.  Further, it was submitted that the findings of credit by the Tribunal were materially affected by poor interpreting.

6                     The primary judge found that the complaint of actual bias had not been sustained.  His Honour considered the interpreting complaints, both specifically and generally, and concluded that the interpreting was not sub-standard in the sense referred to in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. 

7                     Both complaints that were agitated before the primary judge, namely actual bias of the Tribunal, and incompetent interpretation, were repeated before this Court.  Each of those matters will be dealt with in turn.

Actual Bias

8                     First, it is to be noted that it was not submitted to his Honour that this was a case of actual bias patent on the conduct of the Tribunal.  It was said that to discern actual bias it was necessary to have regard to an implication to that effect that arose out of conduct of the Tribunal which involved the commission of procedural errors, namely, the failure of the Tribunal to provide a competent interpreter and the failure of the Tribunal to recognise that the appellant had not been accorded a right in that regard required to be observed by the Act.

9                     Actual bias on the part of an administrative body necessarily involves different considerations from those which apply to judicial proceedings.  The difference has been elaborated by Hayne J in Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [178] – [187] (Gleeson CJ, Gummow J concurring at [100]):

“Courts in this country make decisions by procedures that are both formal and adversarial.  They do so by the application of rules for decision-making which, although not always defined with absolute certainty, are generally discernible before the contest is joined and are set by legislative or judicial processes which are external to the judge.  The process of adjudication is generally conducted in open court.  The judge must give reasons for the decision that is reached.

Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise.  No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral.  That requirement for neutrality is buttressed by constitutional and statutory safeguards.  Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice.  A judge can have no stake of any kind in the outcome of the dispute.  The judge must not “[descend] into the arena and…have his vision clouded by the dust of the conflict”.  The central task and, it may be said, the only loyalty, of the judge is to do justice according to law. 

Decisions outside the courts are not attended by these features.  Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7 Div 9 of the Migration Act 1958 (Cth) to show that this is so.  The procedures for decision-making by that body are much less formal than those of a court.  There is no provision for any contradictor and the procedures are, therefore, not adversarial.  The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome.  The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications.  A body like the Refugee Review Tribunal, unlike a court, is expected to build up “expertise” in matters such as country information.  Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.

The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm.  It is trite to say that the content of the rules of procedural fairness must be “appropriate and adapted to the circumstances of the particular case”.  What is appropriate when decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body.  Ministerial decision-making is different again.

…

…it is necessary to consider more closely what is meant by “bias” and “apprehension of bias”.  “Bias” is used to indicate some preponderating disposition or tendency, a “propensity; predisposition towards; predilection; prejudice”.  It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment.  Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is “any thing which turns a man to a particular course, or gives the direction to his measures”.  This matter concerns only bias by prejudgment and I confine my reasons to that subject.  The questions that may be presented by an allegation of bias for other reasons do not arise and are not considered.

…

Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots.  First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.  Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue.  Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.  Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified.  In 1894, it was said that:

            “…preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.” [emphasis added]  R v London County Council; Re Empire Theatre (1894) 71 LT 638 at 639 per Charles J.

Allegations of apprehended bias through prejudgment are often dealt with similarly.

In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case.  Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision.  Indeed, as I have already pointed out, the notion of an “expert” tribunal assumes that this will be done.  Conferring power on a minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which ministers are legitimately subject.  It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker.  The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.”  (Footnotes omitted)

10                  In the instant case the argument of actual bias put to his Honour was as follows:

“The [appellant’s] case was put on the basis that an examination of the transcript of evidence before the Tribunal and its reasons for decision (and the documents which were before the Tribunal) showed these two legal errors of inadequate interpretation and actual bias separately, but that they were also strongly related to each other.

The [appellant] submitted that each finding of credit by the Tribunal showed either actual bias, interpreting errors, or both.  When the matter was considered as a whole, the overwhelming inference, so it was put, was that the Tribunal considered the case from a pre-conceived opinion, subconsciously affected by the previous findings against the [appellant’s] credit and in doing so had ignored the difficulty in communication.  The Tribunal had effectively found on matters of credit, so the [appellant] submitted, on the basis of what it considered to be prior inconsistent statements.

The [appellant] contended that on closer examination, the [appellant’s] earlier statements were not in fact inconsistent, or altered in any relevant degree, nor were the substantive claims added to.  The [appellant] claimed that interpreting errors infected most of the findings of credit.”

11                  The premise of the appellant’s argument discloses that the contention that the decision of the Tribunal was affected by actual bias cannot succeed.  The appellant complains that the Tribunal acted on mistakes in the interpretation of the appellant’s evidence to conclude that the appellant was not credible and that his account could not be relied upon.  The argument is predicated upon the Tribunal receiving, addressing, and acting upon the evidence or material presented to it.  That the Tribunal was unaware that the material may have misrepresented the statements of the appellant does not support a contention that by reason of a closed mind and actual prejudgment the Tribunal did not, and would not, consider any material put to the Tribunal on behalf of the appellant.  More was required to establish this ground than to assert that the view of the Tribunal that the appellant’s difficulty in presenting his case coherently permitted it to conclude that the appellant’s account should not be accepted, indicated a less than even-handed approach by the Tribunal to the appellant’s case.

12                  It follows the ground of appeal alleging the decision of the Tribunal was affected by actual bias must fail. 

13                  The appellant did not seek to rely on “apprehension of bias” arising from the circumstances referred to, no doubt concluding that the only ground for review available in that regard was that provided by s 476(1)(f) of the Act for review of a decision of the Tribunal affected by actual bias.

14                  If judicial review for “apprehended bias” on the part of an administrative tribunal is wholly based on breach of the rules of natural justice, reliance upon it in an application for review in this Court on the basis of “jurisdictional error” would seem to be precluded by s 476(2) of the Act.  (See:  Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 per McHugh, Gummow, and Hayne JJ at [80]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5]).

Incompetent interpretation

15                  The appellant submitted that the interpreter of the appellant’s evidence to the Tribunal made errors which the appellant’s agent attempted to correct in submissions to the Tribunal but, it was said, the “confusion” that remained led to findings of credit by the Tribunal against the appellant.  With regard to that ground of appeal his Honour accepted that where an applicant attending before the Tribunal relies upon an interpreter to convey to the Tribunal the statements and responses of the applicant, ss 425 and 427 of the Act impose an obligation on the Tribunal to provide a competent interpreter who provides, in fact, that standard of interpretation.  His Honour further accepted that reliance by the Tribunal upon incompetent interpretation will constitute an error of law in respect of which s 476(1)(e) of the Act provides a ground for review (See: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; Ismail v Minister for Immigration & Multicultural Affairs (1999) FCA 1555). 

16                  The respondent submitted, however, that by reason of “material amendments” to s 425 of the Act, effected after the decision in Perera, there was “no jurisdiction for the Court to review the decision of the Tribunal” under s 476(1)(e) of the Act.  Being satisfied, as we are, that the appellant did not make good the case submitted to his Honour, it is unnecessary to decide that point, nor the further question whether it would have been open to the appellant to submit that such a circumstance amounted to “jurisdictional error” on the part of the Tribunal providing ground for review under s 476(1)(b), (c) or (e) of the Act (See: Yusuf per Gleeson CJ at [10], McHugh, Gummow and Hayne JJ at [76] – [83]).

17                  His Honour’s reasons at first instance recorded the following:

“Eventually a clear picture emerged of what the [appellant] said had occurred.  The problem is that the Tribunal relied, in part, on what it perceived to be the [appellant’s] confusion of legal terms in reaching the strongly negative credibility finding to which I have referred above.

As I have mentioned, there is the possibility that the interpreter had not accurately interpreted the technical terms into the equivalent English technical terms.  However, this Court has to be satisfied about such a matter, not in terms of possibility, but in terms of probability i.e. more likely than not.

If a possibility were sufficient, I would have little hesitation in finding reviewable error.  The matter is clearly one of significance to the [appellant’s] claim.  But this Court has to be satisfied, on the balance of probabilities, that the interpretation was deficient.  I am not so satisfied, for the reasons which now follow.

…

In the end, I am left with a strong feeling of unease about the Tribunal’s assessment that the [appellant] was confused.  But this was a factual finding for which there was some evidence before the Tribunal.  In my opinion, there is not enough evidence before me to establish that, on a balance of probabilities, the impression of confusion was caused by interpretation which departed from the required level of competence.

…

A fair reading of the whole of the transcripts of both the hearing and the adjourned hearing before the Tribunal shows that there were problems of interpretation.  However, speaking in general terms, they were usually of the sort which one would expect to encounter even with the services of a very competent interpreter.  Also, they were generally followed-up and clarified.

I have dealt above with the specific complaints, but I thought it appropriate to consider the interpretation as a whole.  My overall impression is, that the standard of interpretation disclosed in the transcript was far higher than that encountered in cases such as Perera and Ismail.”

18                  If the appellant sought to show that the interpretation provided was incompetent in significant respects it was necessary for the appellant to place evidence before his Honour capable of persuading his Honour that material errors occurred in the interpreting of the appellant’s statements and, therefore, that miscarriage in the decision-making process had occurred. 

19                  Unlike the cases to which his Honour referred, the appellant did not present to the Court any material attesting to the inaccuracy of the interpretation provided, nor any review by a competent interpreter of an audio recording of the Tribunal’s proceedings.

20                  It has not been shown that his Honour erred in his treatment of this ground and accordingly the ground must fail.

21                  The appeal must be dismissed with costs.

Associate:

Dated:              28 August 2001