FEDERAL COURT OF AUSTRALIA

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

MIGRATION – submission that reasons of decision published by the Refugee Review Tribunal demonstrate actual bias rejected – application dismissed.

Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 cited

Abebe v Commonwealth of Australia (1999) 162 ALR 1 cited

R v Hickman;  ex parte Fox and Clinton (1945) 70 CLR 598 referred to

NACL v Refugee Tribunal and Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 643 referred to

Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 applied

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

Singh v Minister for Immigration and Ethnic Affairs I[1996] FCA 902 referred to

re Minister for Immigration and Multicultural Affairs;  ex parte ‘A’ [2001] HCA 77;  185 ALR 491 referred to

Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885followed

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 referred to

Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224 referred to

SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 referred to

Minister for Immigration and Multicultural Affairs;  Ex Parte Durairajasingham (2000) 168 ALR 407 cited

SCAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 50 OF 2002

von DOUSSA J

ADELAIDE

30 MAY 2002

THE COURT ORDERS THAT:

1.                  Application dismissed.

2.                  Applicant to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1993 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) made on 16 January 2002 which affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicant. 

Factual Background

2                     The applicant is a Stateless person, formerly resident in Gaza in the Occupied Territories.  He arrived in Australia illegally on 6 June 2001.  On 1 July 2001 he lodged an application for a protection visa under the Migration Act 1958 (the Act).  Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol as those expressions are defined in s 5(1) of the Act.  Under the Refugees Convention and the Refugees Protocol, subject to certain qualifications including the qualification in Article 1D, Australia has protection obligations to a person who is a refugee as defined in Article 1A(2) of the Refugees Convention, namely a person who:

“… owing to well founded fear of being persecuted by reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     The applicant was interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs after his arrival in Australia, before he lodged his application for a protection visa.  He gave a lengthy account of his background and of the reasons why he claimed to be a refugee.  With his visa application the applicant provided a further statement which repeated the information earlier given.  That information was again repeated in evidence by the applicant before the Tribunal.  The applicant has throughout given a generally consistent account of his background and of the factual basis upon which his claim to refugee status is made. 

4                     In summary, the applicant said that he was born in Khan Younis in Palestine in 1972.  He received thirteen years education until 1991.  From 1992 to 1995 he worked as a labourer in Israel.  From 1996 to 1998 he was a soldier with the Palestinian Authority and from 1999 up until the end of October 1999, he was again a labourer in Israel.  He married in 1995.  His wife is resident in Gaza and is also a Palestinian.  His parents and thirteen brothers and sisters currently reside in Palestine.

5                     The applicant left Palestine on 25 January 2001, and travelled to Australia via Egypt, Malaysia and Indonesia.  He said initially that he travelled on a genuine Palestinian Authority passport which was thrown away at the direction of a smuggler who arranged for his journey from Indonesia to Australia.  In later communications with the Department and the Tribunal, questions arose as to the genuineness of his passport, which in turn caused the Tribunal to have some concerns about the applicant’s credibility.  However those concerns do not appear to have been material to the Tribunal’s decision.

6                     The applicant said that in his work with the Palestinian Authority, particularly as a soldier, he saw many things that he did not like including bribery, corruption and nepotism within the Palestinian Authority.  He submitted his resignation from the Palestinian Authority on ten occasions, but it was not accepted.  His applications were refused because when he joined he signed up to remain for five years.  He decided to leave the Palestinian Authority anyway, and in January 1999 went to Israel and remained there for ten months.  He received a message that his mother was ill in Gaza and attempted to return.  He was arrested by the Palestinian Authority in October 1999 as he crossed the border.  He was court-martialled for deserting military service and sentenced to six months in prison in Khan Younis.

7                     The first two months of his imprisonment was unexceptionable.  He was then questioned about allegations that he was working with Israel and was a collaborator.  He denied these allegations.  He was then transferred to the Protective Security Prison Base where suspected collaborators were detained and interrogated.  He was interrogated for some ten days.  During his questioning he says that he was seriously mistreated.  In the early stages of his interrogation he was put in solitary confinement.  He was hooded and handcuffed when taken into a room for questioning.  He was beaten.  Every day for eight hours he was put in a refrigerated room in his underwear.  He was returned to the section of the Palestinian Authority running the gaol in Khan Younis.  It was then early January 2000. 

8                     He was not further questioned until 3 April 2000, the day he was due to be released from gaol.  He was then called for further questioning at 11.00 pm.  The interrogation was brutal.  He was blindfolded and handcuffed.  He was beaten on the head and the back of the neck, and received injury from a sharp implement.  He said he regained consciousness in hospital where he remained for a week. 

9                     The applicant’s formal release apparently occurred on 4 April 2000 but he was required thereafter to periodically report to the police.  On his release from hospital he returned to his home but he said he remained locked in the house.  He said he could not work as rumour in the community was that he was an Israeli agent.

10                  On 28 September 2000 an intifada commenced.  The applicant alleged that in about mid October 2000 six masked men came to his house.  They were identifiable as Hamas men.  They told the applicant in the presence of many of his family members that he had two choices.  He either proved his innocence by undertaking a mission for them in Israel as a suicide bomber, or he would be killed.  He said that he immediately refused the first alternative, but the second was not then carried out.  The Hamas men left the house.  The applicant’s father told him that he too should leave.  He went to stay at his sister’s house in Khan Younis whilst his escape from Palestine was planned and money was raised by selling his wife’s jewellery and raising loans. 

11                  The applicant said that he had no further encounters with Hamas between October 2000 and January 2001 when he left Gaza.  He said that he had not seen them but that they had been to his parents’ house.  The applicant said that his father had experienced many problems since the applicant had left.

12                  The Tribunal questioned the applicant about his compliance with the reporting conditions that applied after his release from prison.  He said that he complied with them, reporting once a week, until the 28 September 2000 intifada when the applicant said everything became chaotic.  He said he did not report after that.

13                  The applicant said that he feared that if he returned to Gaza he would experience the wrath of the Palestinian Authority, and he was also afraid that Hamas would pursue him.  He feared the stigma of the collaborator label which meant that everyone would consider him an outcast and fair game.  The applicant denied that he was in fact a collaborator, but the authorities perceived him to be a collaborator.  His claim for refugee status therefore rested on the basis that he had a well founded fear of being persecuted by reason of his perceived political opinion.  The applicant produced to the Tribunal a number of documents including one that he said was a copy of an arrest warrant for him, issued after he left Gaza.  That document upon translation indicated that it was a summons issued because the applicant had “failed to attend the court hearing”.

Reasoning of the Tribunal

14                  In the course of obtaining information from the applicant at a hearing before the Tribunal, the Tribunal elicited information to suggest that the applicant and members of his family came within the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) definition of a Palestine refugee, and accordingly might be excluded from the operation of the Refugees Convention under Article 1D which provides that the Convention shall not apply to persons who are receiving from organs or agencies of the United Nations other than the UNHCR protection or assistance.  However, as the Tribunal ultimately reached a conclusion that the applicant did not fall within the definition of a refugee under Article 1A(2), it did not further consider the applicant’s possible exclusion from the protection of the Refugees Convention under Article 1D, or the possibility of the applicant’s access to effective protection in a third country.

15                  The Tribunal had available to it extensive country information which was consistent with allegations made by the applicant as to the way in which suspected collaborators were treated.  The country information indicated that the Palestinian Authority’s overall human rights record was poor, and that it worsened in several areas following 28 September 2000.  The country information contained examples of Palestinians dying in custody where prison conditions were said to be very poor.  The country information asserted that Palestinian Authority’s security officials tortured and abused prisoners in ways which included treatment of the kind alleged by the applicant.  Treatment meted out by the Palestinian Authority to suspected collaborators was particularly harsh and included execution. 

16                  A recent DFAT report, relied on by the Tribunal, stated:

“While the Palestinian Authority has persecuted – and executed – those it regards as having ‘collaborated’ with Israel, it is very unlikely that anyone in the PA would conclude that the applicants were collaborators merely because they fled to Jordan … more information than that would be necessary.

Failed asylum seekers who return to the Palestinian territories are unlikely to be at any risk simply as a result of the fact that they sought asylum abroad.” 

17                  The country information also contained a summary of the Hamas organisation, its activities, and its attitudes to collaborators.

18                  The Tribunal expressed concern about the credibility of a number of aspects of the applicant’s evidence but nevertheless accepted substantial parts of the history which he gave.  The Tribunal accepted that he was a Stateless person from Gaza.  The Tribunal accepted that he worked in Israel as he alleged, and that he was employed as a soldier with the Palestinian Authority from 1996 to January 1999.  The Tribunal accepted that he was given a six month sentence of imprisonment for desertion from the security forces on his return to the Occupied Territories in October 1999.  There was independent information before the Tribunal that such a sentence was consistent with the Palestinian Authority’s Penalty Act for security personnel, which appeared to be a law of general application.  The Tribunal found that there was no evidence that the Act was applied to the applicant in a discriminatory fashion. 

19                  The Tribunal accepted that the applicant was mistreated while in detention for desertion and that during that period he was interrogated about possible collaboration with Israel.  However there was no evidence to suggest that he had at any time been a collaborator.  On the contrary, his family members also worked in Israel for significant periods and none of them had been arrested or suspected of collaboration.  Whilst the Tribunal accepted that the applicant’s mistreatment whilst in custody was severe and resulted in significant injury on the occasion of the assault on 3 April 2000, the Tribunal considered there was some doubt that the mistreatment occurred for a Convention reason.  The country information suggested that mistreatment and abuse of the kind which the applicant experienced was typical of prison conditions.  Nevertheless the Tribunal gave to the applicant the benefit of the doubt and accepted that his mistreatment was the result of his captor’s initial suspicion that he was a collaborator and that they therefore imputed to him adverse political opinion.  Nevertheless, the Tribunal concluded:

“What is clear, however, from the applicant’s evidence, is that at the time of the applicant’s discharge the authorities were satisfied that he had not collaborated with Israel.  Penalties for collaboration, or even suspected collaboration are very severe, and the applicant, in the Tribunal’s opinion, would not have been released immediately on completion of his sentence for desertion, if there had been any evidence of collaboration.  The applicant’s last-minute mistreatment before his release appears to have been, on the applicant’s evidence, a display of vindictiveness by his captors rather than any belief that he was, after all, a collaborator.  While the applicant claims to have been put on reporting conditions, there is no evidence that this was because the authorities had a continuing suspicion of him as a collaborator.”

20                  Of critical importance to the Tribunal’s decision was a finding that it did not accept that the applicant was visited by masked Hamas members in October 2000.  The Tribunal’s findings in this respect are central to submissions made on the applicant’s behalf before this Court in support of its third ground for review (see below).  It is desirable to set them out in full.  The Tribunal said:

“The Tribunal does not accept that the applicant was visited by masked Hamas members around the beginning of October 2000.  The so-called ‘Al-aqsa intifada’ broke out only at the end of September.  It is highly implausible, in the Tribunal’s view, that in an environment where Hamas would have been heavily occupied in organising Palestinian resistance, and at least hundreds if not thousands of young Palestinians were willing to attack the Israelis, Hamas should have approached a person who would have to be coerced into undertaking a mission against the Israelis.  The applicant’s account of the meeting with Hamas is unconvincing.  It is implausible that an organisation with a reputation for secrecy in organising terrorist attacks (the wearing of masks and hoods, for example) should meet the applicant and state their business in front of the applicant’s entire extended family.  It is also implausible that Hamas would have openly asked the applicant, in front of some 16 witnesses, to undertake a mission for them in Israel to prove he was not a collaborator.  It is also implausible that if such an unlikely offer were made, the applicant would refuse on the spot, and Hamas would then leave without further argument or action.  Even more implausible, if in fact Hamas had asked the applicant to co-operate and he refused, is that Hamas never approached the applicant again, even though he remained in Gaza for at least 3 more months.  Hamas, had at least in its early years, a reputation for severe reprisals against suspected collaborators, yet they took no action against the applicant.  It is not credible, in the Tribunal’s view, that if the applicant had been suspected by Hamas of collaborating, any meeting with them would have unfolded as the applicant described it.  The Tribunal, in the light of the reasoning set out above, does not accept that Hamas approached the applicant’s father after he had left home.”

21                  Following from the above conclusions, the Tribunal said that it was not satisfied that either the Palestinian Authority or Hamas, even if they had some initial doubts about the applicant, suspected him of collaboration at the time he left Gaza.  Further the Tribunal was not satisfied that the fact that the applicant had left Gaza would cause the authorities to change their opinion.

22                  On the question of the document produced by the applicant which purported to be a copy of an arrest warrant, the Tribunal noted that on the applicant’s evidence the only basis for the Palestinian Authority wanting to question him would be because of his non-adherence to weekly reporting requirements.  The applicant did not make any mention of being charged with anything by the authorities after his release from detention and he provided no evidence to the Tribunal about any outstanding court hearing.  The Tribunal expressed doubt about the validity of the document, but if it was valid, the Tribunal concluded that it was issued because of the applicant’s failure to report as directed.  In this respect it would be a document issued pursuant to a law of general application, and if the authorities were to pursue the summons on the applicant’s return to Gaza, it would not be for a Convention reason.

23                  The Tribunal said that having considered the evidence as a whole, it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

24                  It will be apparent from the foregoing that the applicant’s claim that he had a well founded fear of persecution on account of a perceived political opinion failed on credibility grounds.  The Tribunal was not satisfied that the applicant had been threatened in the manner alleged by Hamas, and was not satisfied that the Palestinian Authority had any continuing suspicion that the applicant was an Israeli collaborator.  In these circumstances, there was at the time of the decision no objective basis for any subjective fear of persecution held by the applicant, were he to return to Gaza. 

Submissions on review and decision thereon

25                  The application to this Court is subject to the statutory regime under Part 8 of the Act which came into force on 2 October 2001.  The decision under challenge is a privative clause decision within the meaning of s 474 of the Act.  Section 474(1) provides that:

“(1)     A privative clause decision:

(a)               is final and conclusive;  and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court;  and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

26                  The applicant nevertheless contended that the Tribunal’s decision is reviewable by this Court and should be set aside because the Tribunal made jurisdictional error by failing to properly address a critical issue raised on the material before it (the first ground);  and in failing to apply the law properly to the facts before it in determining whether the applicant’s fear of persecution was well founded (the second ground);  and on the ground that the Tribunal had wrongly assumed its jurisdiction by undertaking its task with actual bias (the third ground).  It is contended that each of these grounds falls outside the scope of s 474(1).  I deal with the merits of each of these grounds in turn.

Ground 1

27                  Counsel contended that the Tribunal fell into error by looking at the events outlined by the applicant in a piecemeal fashion, and in doing so failed to give proper consideration to the significance of the fact that the applicant had been a deserter from his role as a soldier in the Palestinian Authority.  Counsel argued that there may have been greater significance to the desertion than the Tribunal attributed to that event.  Counsel posed by way of possibility that the applicant may have been perceived by the Palestinian Authority as a conscientious objector who held political opinions adverse to its cause.  Counsel conceded that there was no evidence given by the applicant to suggest this, but contended that the Tribunal should have looked behind the story given by the applicant to explore whether the possibility of other reasons or consequences of his desertion could give rise to a real chance of persecution in the event that the applicant returned to Gaza.  When counsel was asked what further enquiries it was suggested the Tribunal should have made, counsel indicated that the Tribunal should have explored the point in greater depth with the applicant in the course of the Tribunal hearing.

28                  I am unable to accept this submission.  At no stage in his communications with the Department did the applicant suggest that he had any conscientious objection to the political ideals of the Palestinian Authority.  On the contrary, he said that his reasons for wishing to leave was his disillusionment with its performance stemming from the bribery, corruption and nepotism which he had seen.  The applicant was given every opportunity to put forward the reasons why he feared persecution in Gaza, and he did so.  It was those reasons that the Tribunal addressed. 

29                  In my opinion the reasoning of the Tribunal indicates that it squarely addressed the possibility that the applicant’s desertion could give rise to an imputation of adverse political opinion.  Indeed, the Tribunal specifically gave the benefit of the doubt to the applicant on his evidence that the Palestinian Authority had an initial suspicion that he was a collaborator.  The Tribunal then analysed the information proffered by the applicant to determine whether there was a continuing basis for a well founded fear that the applicant would be further persecuted for that reason if he were to return to Gaza.  The Tribunal rejected that possibility and gave reasons for doing so.

30                  The Tribunal is required to reach a decision on the information that is before it.  If the Tribunal finds that central allegations made by an asylum seeker are not credible, and cannot be accepted, it is not the function of the Tribunal to speculate whether the asylum seeker might be at risk of persecution on other grounds about which the applicant’s evidence gives no hint:  see Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 at [14].  In Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [187] Gummow and Hayne JJ described the function of the Tribunal in the following way:

“The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.”

31                  I do not consider the Tribunal fell into error by considering different aspects of the applicant’s claim separately in its process of reasoning.  Its conclusions on these aspects led rationally to its ultimate conclusion that the applicant’s fear of persecution by the Palestinian Authority because he might be perceived to be an Israeli collaborator was not well founded. 

Ground 2

32                  Counsel for the applicant submitted that the Tribunal failed to make any or any proper assessment of the degree and nature of the fear held by the applicant and in consequence failed to properly determine whether his fear was well founded on objective fact.  Counsel argued that as the Tribunal accepted that at least at some point in time the Palestinian Authority had imputed to him an adverse political opinion (at the time when his interrogation in gaol commenced), in light of the common knowledge that suspected collaborators would be harshly dealt with, the applicant had a well founded fear.  It was argued that in the climate of fear in which he would live in Gaza as a person who once had been suspected of being a collaborator, there would always be a well founded basis for fear of further persecution.  Put in another way, counsel argued that an individual can have a well founded fear even if the authorities who would be the persecutors in fact no longer have any interested in that person.  

33                  I do not accept this argument.  A fear will be well founded if there is a real chance of persecution for a Convention reason.  If the information before the Tribunal satisfies it that the authority from whom the asylum seeker fears persecution has no continuing interest in the asylum seeker, or for some reason is disabled from carrying out the feared conduct, there can be no continuing well founded basis for the fear.  The Tribunal recognised the requirement that it be satisfied that there was a continuing real chance that the applicant’s fears could eventuate if he were to return to Gaza, and has considered that question.  In my opinion, the Tribunal did not err in the way in which addressed the question.

Ground 3

34                  The allegation of actual bias rests on an argument that the Tribunal had a pre-determined view of the way in which Hamas and its members would conduct themselves, or as counsel described it, a “cultural bias” about Hamas.  This pre-determined view, it was argued, led the Tribunal to reject the applicant’s evidence about his encounter with Hamas members in October 2000.

35                  Counsel for the respondent accepted that the privative clause provisions of s 474 of the Act would not preclude judicial review of the decision in cases where the decision maker has not acted in good faith, and that this would include most cases of actual bias.  Such a case would fall within one of the exceptions to the operation of a privative clause like s 474 recognised by Dixon J in R v Hickman;  ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (but note the observations of Conti J in NACL v Refugee Review Tribunal and Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 643 at [25]. 

36                  Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  “The question is not whether a decision maker’s mind is blank;  it is whether it is open to persuasion”:  Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] – [72] per Gleeson CJ and Gummow J.  That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus.  The allegation must be “distinctly made and clearly proved”:  at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. 

37                  Whilst actual bias involves a state of mind which must be established by the party making the allegation, proof of an intentional state of mind adverse to the case of that party is not the only way of establishing it.  Actual bias may be subconscious, provided it is real, and may be established by inference from the circumstances including from the decision itself:  Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at per 126 – 127 per Burchett J and at 134 – 135 per North J;  Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at 6;  re Minister for Immigration and Multicultural Affairs;  ex parte ‘A’ [2001] HCA 77 at [35] – [37];  and Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885.  In the latter case Sackville J at [27] noted a significantly different emphasis between the judgments of Burchett J and North J in Sun Zhan Qui.  Both judgments accept that errors in reasoning and fact finding may be so egregious as to warrant an inference that the decision maker has prejudged the case to the point of being unable to decide it impartially.  However Burchett J on the one hand considered that a finding of actual bias was a “grave matter”, different from “mere error, or even wrong-headedness” (at 127) whereas North J on the other hand considered that past judicial reticence in making a finding of actual bias against a decision maker was misplaced as prejudgment might occur, for example where the decision maker did not intend or did not know of a prejudice that governed their decision making, or even where the decision maker believed, and said, that they had not prejudged the case (at 135).  Sackville J associated himself at [31] with the distinction drawn by Burchett J between actual bias and “mere error, or even wrong-headedness, whether in law, logic or approach”, and at [32] said that it would be wrong in principle to make the leap too readily from factual error or faulty reasoning by a decision maker (even serious factual error or misconceived reasoning) to a finding of actual bias.  This caution was applied by Mansfield J in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [35] when considering an allegation that the Refugee Review Tribunal had not acted in good faith in making the decision under challenge.  I too share the view expressed by Sackville J.  A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality.  If the demonstration of factual errors, faulty reasoning and wrong-headedness in published reasons for decision are without more to be translated into a finding of actual bias, the result, as Wilcox J observed in Sun Zhan Qui at 122, will be to substitute for an enquiry into the character of the decision an enquiry into the character of the decision maker. 

38                  In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.  Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons.  The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.  Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.  However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] – [27]) an inference of actual bias by prejudgment might then be more readily drawn.  But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias. 

39                  Counsel argued that the reasons of the Tribunal which led to the rejection of the applicant’s evidence about the Hamas incident so plainly disclose a pre-determined view about how the Hamas could be expected to act that the heavy onus resting on the applicant is discharged.  Counsel stressed that the Tribunal treated a series of events asserted by the applicant as implausible.  Counsel argued that there was no evidence about the way in which Hamas in fact conducted its operations.  Accordingly the Tribunal’s assessment that the events were implausible reflects a pre-existing belief by the Tribunal about Hamas behaviour which no amount of evidence could have overturned.

40                  The allegation of actual bias therefore rests entirely upon inference said to arise from the expression of the published reasons for decision of the Tribunal which were adverse to the applicant.  There is no other material advanced by the applicant to support the allegation of actual bias, and there is nothing in the papers from the files of the respondent or the Tribunal which gives rise to the faintest apprehension of bias by the Tribunal let alone pointing towards actual bias.

41                  The submission that the reasons for decision disclose actual bias by the Tribunal is in my opinion completely without foundation.  In other aspects of the Tribunal’s reasoning, the Tribunal has fairly and properly given the applicant the benefit of doubt where there was reason to question his credibility.  Apart from the reasoning relating to the October 2000 incident about which the applicant complains, the reasons suggest an even handed, fair assessment and weighing of the material before the Tribunal.  There was a considerable amount of information about Hamas describing it as an extremist organisation promoting the goal of destroying the State of Israel.  The proposition that the Tribunal lacked evidence about the way in which Hamas acted is open to question but there is no need to canvas that information.  In my opinion the implausibilities identified by the Tribunal were not ones that could only be drawn if supported by country information or other material.  They were implausibilities based upon ordinary human experience which, inevitably, a decision maker would call upon in weighing the possibilities and likelihoods of the claim. 

42                  I agree with the submission made by counsel for the respondent that the allegation of actual bias in this case is no more than an assertion that the credibility findings made by the Tribunal were wrong.  The assessment of the credibility of the applicant was essentially a matter for the Tribunal alone.  In Minister for Immigration and Multicultural Affairs;  Ex Parte Durairajasingham (2000) 168 ALR 407 at 423 McHugh J said:

“In addition, the prosecutor alleges that the Tribunal breached section 430(1) by failing to set out reasons for its findings that the prosecutor’s claims that members of PLOTE tried to recruit him were ‘utterly implausible’.  However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is a function of the primary decision maker par excellence.  If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’.  The disbelief arose from the Tribunal’s view that it was inherently unlikely that events had occurred as alleged.”

43                  In this case the Tribunal gave detailed reasons for rejecting the credibility of the applicant’s story about the incident with Hamas members.  In doing so it went beyond the requirements of s 430 of the Act.  In my view the reasons given demonstrate neither an erroneous process of reasoning nor bias on the part of the Tribunal. 

44                  Once the Tribunal reached the conclusion that the alleged incident with Hamas members did not occur, there was no longer any basis for a well founded fear of persecution.  In my opinion there is no merit in the grounds advanced by the applicant in support of this application, and the application must be dismissed.  The occasion does not arise to consider the scope and operation of the privative clause provisions in s 474 of the Act. 

Associate:

Dated:              30 May 2002

Counsel for the Applicant:                     Mr K Hanna

Solicitors for the Applicant:                   Hyams & Associates

Counsel for the Respondent:                 Mr M Roder

Solicitors for the Respondent:                Sparke Helmore

Date of Hearing:                                   17 May 2002

Date of Judgment:                                 30 May 2002