FEDERAL COURT OF AUSTRALIA

Applicant VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1516

MIGRATION - protection visas – application for review of Refugee Review Tribunal’s refusal to grant - privative clause – s 474(1) of the Migration Act 1958 (Cth) - whether Tribunal made a bona fide attempt to exercise its power – whether the Tribunal exhibited actual bias or unreasonableness – vigorous questioning of the applicant, or reasoning which might not commend itself to the Court, does not of itself demonstrate lack of good faith - whether s 36(2) of the Migration Act 1958 (Cth) is subject to the privative clause or whether it poses a question which is anterior to the operation of that clause.

Migration Act 1958 (Cth), ss 36(2), 474(1)

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, referred to

Abebe v The Commonwealth (1999) 197 CLR 510, referred to

NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228, applied

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, followed

Reg v Commonwealth Conciliation & Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219, referred to

NAEB v Minister for Immigration and Multicultural Affairs [2002] FCA 1092, applied

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, referred to

Craig v South Australia (1995) 184 CLR 163, referred to

NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294, followed

VDAA v Minister for Immigration and Multicultural Affairs [2002] FCA 1071, applied

NAGT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 319, referred to

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

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

SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076, referred to

Mousoof v Minister for Immigration and Multicultural Affairs [2000] FCA 1522, referred to

Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, referred to

Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242, referred to

APPLICANT VCAT of 2002, APPLICANT VCAU of 2002,  APPLICANT VCAV of 2002, and APPLICANT VCAW of 2002  - v -  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 246 of 2002

RYAN J

6 DECEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the respondent’s costs, such costs to be taxed in default of agreement.

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 for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent Minister to grant the applicants protection visas.  The first and second applicants are husband and wife and the third and fourth applicants are their children now aged, respectively, 18 and 12.  The first applicant (“the applicant”) is a Sikh now aged 44 and was born at Urapan in the Indian State of Punjab.  In 1976, the family moved from the Punjab to Surat in Gujarat State and, in 1980, after certain of his relatives had entered the hotel business, the applicant gave up his occupation as a truck driver and began to work with one of his brothers in the family business.  The second hotel in which he worked, the Punjab Palace, was on National Highway No 8 and, according to the applicant, was patronised by many young people escaping from police in the Punjab after disruption in that State stemming from the Sikh separatist movement.  On the applicant’s account, the coming and going of large numbers of Punjabis to and from the hotel attracted the attention of the Gujarat Police but the family could not refuse to receive the Punjabis, some of whom were armed and extracted co-operation by threats.  The specific events to which the applicant adverted were described by the Tribunal in its reasons in these terms;

“The applicant states that on 30 March 1997, the police conducted a raid on the hotel.  The applicant was not there as he was visiting Punjab.  His brother and four separatists were at the hotel.  Two of the separatists escaped, but the applicant’s brother and two other separatists were taken to the police station.  The applicant claims that his brother was detained for 10-12 days and tortured because he had harboured terrorists and had not informed the police about them.  The applicant states that his father paid a bribe to have his brother released.

The applicant claims that the day after the raid, the police returned to the hotel to look for him because he was the joint manager of the hotel and had also provided accommodation to the separatists.  The police questioned his wife and his mother about his whereabouts.  The applicant said that his wife telephoned him and told him about the raid and warned him not to return.  The applicant claimed that from then on he was in hiding.

The applicant claims that the two separatists who had escaped told the other hotel owners in the area that the applicant’s family had informed the police that they were at the hotel.  The applicant claims that he was afraid of what the terrorists might do to him if he returned to Gujarat.

The applicant claims that on 25 April 1997, his brother’s scooter was hit by a truck driven by the two separatists who had escaped the police raid.  The separatists did this because they believed that the applicant and his brother had informed the police about them.  The applicant’s brother was severely injured in this accident.

The applicant claims that the Gujarat police came looking for him every month or so.  The police also questioned his family members in Punjab.  The applicant claims that he hid with various family and extended family members and moved around a lot.  Eventually he contacted his wife’s family in Australia who sponsored his visit.  He states that when he received his visitor visa, he sold the hotel in preparation for his escape.

The applicant claims that he cannot return to Gujurat or anywhere in India because the police are still looking for him.”

2                     The applicant sought to corroborate that account by submitting several pieces of documentary evidence including one evidencing the contract pursuant to which he had participated in conducting the Punjab Palace Hotel and various police and medical reports as well as “country information” which, the Tribunal noted, concerned “human rights abuses in India, including a massacre of Sikhs in Jammu and Kashmir in March 2000, ongoing problems in Punjab and the current religious violence in Gurajat.”

3                     The applicant repeated his claims in oral evidence before the Tribunal which it summarised as follows;

“The applicant confirmed his claim that on 30 March 1997, the police had raided the Hotel Punjab Palace.  Four terrorists were staying there, but two of them escaped.  The police arrested the other two terrorists and the applicant’s brother, Jaswant, and took them to the police station.  The applicant confirmed that his brother had been detained for 10-12 days and had been tortured during this period.  He was released without being charged after the applicant’s father paid a bribe.  The two terrorists were charged.  The applicant himself was visiting relatives in Punjab at the time, so was not arrested.  The police came to look for him the next day, and his family warned him not to return.  The applicant stated that he went into hiding and never returned to Gujarat.

The applicant claimed that the terrorists who were staying at the hotel belonged to the Khalistan Commando Force.  They had been staying in the hotel for over two months.  On being asked why he had not informed the Gujarat police about the terrorists, the applicant responded that the terrorists were armed and had threatened to kill his brother and himself if they informed the police.  The applicant confirmed that after the raid, the two terrorists who had escaped told other local hotel owners that they were going to kill the applicant and his family.  These terrorists had stolen a truck and staged an accident on 25 April 1997 in which the applicant’s brother had been seriously injured.  The Tribunal informed the applicant that it considered it to be implausible that having escaped the police raid in which two of their colleagues were captured, the remaining terrorists had stayed in the area for over three weeks publicly informing people that they were Sikh terrorists who were planning to kill the applicant’s family.  Such actions would have significantly increased their risk of being captured by the police.  It was also implausible that armed members of the Khalistan Commando Force would go to the trouble of staging an accident between a truck and the applicant’s brother’s scooter when they had the capacity to simply shoot the applicant’s brother. The applicant said that the terrorists had staged the accident because they didn’t want everyone to know that they were responsible for harming his brother.  The Tribunal asked why, if that were the case, the terrorists had gone around telling people that they intended to kill members of the applicant’s family?  The applicant did not respond to this point.  The applicant’s adviser suggested that the terrorists may have copied the police methodology of staging false encounters.”

4                     In the course of the oral hearing, the Tribunal exposed to the applicant and his adviser the respects in which it found it difficult to accept certain parts of his account.  The recital of how that was done occurs in this passage from the Tribunal’s reasons;

“The Tribunal informed the applicant that it accepted that his brother had been seriously injured in a traffic accident in April 1997, but there was nothing in the documents which had been submitted by the applicant which linked this accident to Sikh terrorists.  In his report to the police, the applicant’s brother, Surjit, had stated that the people responsible were unknown.  The applicant claimed that some time later, two men who had been sleeping in the truck had informed his brother that the men driving the truck had been Sikh terrorists.  The Tribunal asked why Surjit had not gone back to the police and reported this information to them.  The applicant responded that he had done so, but the police had not written it in the report.  After 3-4 months the police had not found who was responsible, and they had closed the file.

The applicant informed the Tribunal that he had spent the nearly three years in hiding, going from place to place.  Sometimes he travelled in trucks to Bombay or Delhi, other times he stayed with relatives or other people in Punjab.  He could not stay in Bombay or Delhi because he didn’t speak Hindi and he had no work or family support in these places. He was afraid that the terrorists were after him, and that the police were also looking for him.

The Tribunal informed the applicant that it had difficulty accepting that the police were still looking for him five years after the raid on the hotel had taken place.  The matter would have had to be a very serious one for the police to have retained this level of interest for so long.  However, his brother, Jaswant, had been released from detention without being charged.  If the matter had been serious, the police would not have released him simply because his father had paid a bribe.  The applicant’s adviser commented that Jaswant’s medical condition may have prevented the police from taking further action against him.  The Tribunal also noted that the applicant’s other brother, Surjit, who was also a partner in the hotel, had continued to stay in Surat without any problem.  The applicant said that Surjit had not been involved in running the Hotel Punjab Palace.  He had remained at the first hotel.  The Tribunal responded that nevertheless, Surjit was a partner in the hotel, and the police could have been expected to have taken an interest in him if they were so concerned about what had been going on at the Hotel Punjab Palace.  The Tribunal noted that the applicant had never been charged with having committed any crime.  The applicant responded that he was afraid he would be arrested if he returned.  He said that his life was in danger from both the terrorists and the police.

The Tribunal noted that the applicant had been the holder of a passport issued to him in 1991.  However, despite claiming to have been in hiding, fleeing from place to place in fear of his life, it had taken him nearly three years to apply for a visa for Australia, where many of his wife’s relatives were living.  The applicant said that he had not thought to apply earlier for a visa for Australia.  The Tribunal noted that it was hard to believe that the applicant would not have thought to apply for a visa if his circumstances had been as he claimed they were.”

5                     There was then reference to the applicant’s home having been almost entirely destroyed in the Gujarat earthquake of 2001 and to religious violence currently occurring between Hindus and Muslims in Gujarat.  When the Tribunal commented that this would not be directed against the applicant as a Sikh, he replied that “although he had a turban and a beard and looked like a Sikh, his brothers did not and they might be harmed by people who mistook them for Hindus.”

6                     The Tribunal also noted evidence from the applicant’s sister-in-law which it recounted as follows;

“She informed the Tribunal that she had visited India in April 2001 and had gone to Surat.  Mrs Kaur said that the applicant was still in grave danger in India.  The police were still looking for him in Surat.  She said that his parents received phone calls about him.  Sometimes these calls were from the people responsible for his brother’s accident, and sometimes they were from the police, although it was possible that it was not the police but the terrorists pretending to be the police.

She stated that the earthquake had destroyed the applicant’s property.  His parents were living in the one remaining room of the house.  His mother was blind and had only one leg. It was difficult for the applicant’s parents to manage financially.”

7                     Under the heading “Findings and Reasons”, the Tribunal first noted that it was not obliged, even in the absence of rebutting evidence, to accept uncritically every plausible or coherent claim made by an applicant.  However, after reminding itself of the caveats entered by a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at 577, the Tribunal concluded that the applicant was not a credible witness.  It explained its reasons for that conclusion by first observing;

“The Tribunal does not accept the applicant’s claims that he is wanted by the police in both Punjab and Gujarat because the police believe that the applicant and his brother, Jaswant, allowed Sikh terrorists to stay at their hotel.  The Tribunal finds these claims to be implausible for the following reasons.

The applicant testified that his family had operated a hotel situated on National Highway No.8 without incident for seventeen years, including the period in the 1980s and early 1990s when the Sikh separatist movements in Punjab were at their peak (UK Home Office Country Assessment: India, October 2001, Section 5.6).  The applicant said that Sikh militants did not stay at this hotel.  It is not plausible, in view of the history of the first hotel, that another hotel owned by the applicant and his two brothers, situated only one and a half kilometres away from the first hotel on the same highway, would attract a clientele of Sikh militants escaping the Punjab immediately it opened (the hotel opened in January 1997, and the applicant stated that the four members of the Khalistan Commando Force had been staying at the hotel for over two months at the time of the police raid on 30 March 1997).  The Tribunal does not find convincing the applicant’s explanation that the militants liked the second hotel because it was newer and bigger than the first hotel.”

8                     A reference was then made to “country information” which indicated that, by March 1997, the Sikh militant movement was no longer active in Punjab and which led the Tribunal to reject “the applicant’s claim that four members of the Khalistan Commando Force escaping from Punjab chose to stay at his hotel in January - March 1997.” 

9                     The Tribunal also found implausible the applicant’s claim that, after the police raid, the two remaining terrorists had told other hoteliers that they regarded the applicant’s family as responsible for the raid and would take revenge on them.  It explained that finding by saying;

“It is inherently implausible that terrorists would publicly inform people of their identity by linking themselves to the other two terrorists who were arrested in the raid, and as the police were presumably looking for them, neither is it plausible that they would have remained in Surat, particularly in the overt way claimed by the applicant, which could only have significantly increased the chance of them being caught.”

10                  The Tribunal also rejected the claim that the applicant’s brother had been deliberately injured by terrorists in a “staged” motor accident.  As to that claim, the Tribunal said;

“The Tribunal considers the claim that the terrorists copied the tactics of the police and staged a false encounter in which the applicant’s brother was injured to be implausible.  As discussed with the applicant, if the terrorists were openly stating that they were planning to harm the applicant’s family, there seems little point in them trying to make it appear that the applicant’s brother was harmed in a traffic accident.  Whilst the police, particularly in Punjab, may have adopted “staged” or “fake” encounters as a modus operandi, the Tribunal has seen no reports of terrorists doing the same.

As discussed with the applicant at the hearing, the Tribunal accepts that his brother was injured in a traffic accident, but does not accept that Sikh terrorists were responsible.  The police report states that an unknown person caused the accident, and the Tribunal is not convinced by the applicant’s subsequent claim that two former employees of the hotel witnessed the terrorists driving the truck.  If this were the case, the applicant’s brother would presumably have reported this new information to the police and could have obtained another report confirming that he had done so.  The Tribunal does not accept what it considers to be a weak explanation by the applicant that his brother did report this new information to the police but they chose not to write it down.”

11                  The Tribunal similarly rejected as implausible the applicant’s claim, supported by his sister-in-law, that the police were still looking for him more than five years after the event because of alleged assistance to terrorists in respect of which no other member of his family had been charged.  The final limbs of the Tribunal’s reasons for rejecting the applicant’s claims are articulated in these passages from its reasons;

“The Tribunal’s disbelief about the applicant’s claims is strengthened by his failure to apply for an Australia visa for nearly three years after the police allegedly raided the hotel in March 1997, during which period the applicant claims that he was constantly on the run and in fear of the police and the terrorists.  The applicant had a valid Indian passport issued in 1991.  Many members of his wife’s family were already living in Australia in March 1997 (his sister-in-law informed the Tribunal at the hearing that she was an Australian citizen and had been in Australia since 1986).  When asked why he did not apply for a visa until January 2000, the applicant was not able to provide a reason other than that he had not thought to do so, and when further pressed on this point, he referred to the importance of his son’s schooling.  It is not believable that the applicant would not have thought to apply for a visa for Australia for three years if, during this period, he really was on the run from the police and from terrorists and fearful that he would be arrested or killed.

Taking into account the above, the Tribunal finds that the applicant has fabricated the claims that Sikh militants stayed at the hotel he and his brothers jointly owned, and that the police raided the hotel and arrested two of the militants and the applicant’s brother, and that the police in Punjab and Gujarat have been looking for the applicant ever since.  The Tribunal finds that the applicant is not wanted by the police anywhere in India for any Convention-related reason, and there is not a real chance that he would be harmed by the Indian authorities if he returns to India for his reason of his race or religion, a political opinion imputed to him or because of his family membership.

As the Tribunal does not accept that Sikh militants stayed at the applicant’s hotel and that two of them were arrested by the police, it does not accept that two other militants threatened the applicant’s brother and injured him in a traffic accident as an act of revenge or that a Sikh militant group has any interest in harming the applicant for the same reason. The Tribunal finds that there is not a real chance that the applicant would be harmed by a Sikh militant group if he returned to India.

The Tribunal is aware of the current wave of violence between Hindus and Muslims in Gujarat, but finds that as a Sikh (and one who is identifiable as a Sikh by his turban and beard), the applicant would not be the target of violence for reason of his religion or any other Convention reason if he were to return to Gujarat.  The Tribunal notes that the applicant has links in Punjab and speaks Punjabi and he could therefore return to Punjab if he felt that the current unrest made Gujarat an unsafe place.

Taking into account the above, the Tribunal finds that the applicant has not been harmed in the past for a Convention reason and that if he were to return to India now or in the reasonably foreseeable future, that there is not a real chance that he would be persecuted for reason of his race or religion, a political opinion imputed to him, his membership of a particular social group, his family, or any other Convention reason.  The Tribunal finds that the applicant’s claims are not well-founded.”

Proceedings for review of the Tribunal’s decision

12                  For the present application to succeed it must be shown that the decision of the Tribunal is not protected by the “privative clause” embodied in s 474(1) of the Migration Act 1958 (Cth) (“the Act”).  The effect of that sub-section has been authoritatively explained by a five member Full Court of this Court in NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228 (“NAAV”).  A decision will be protected from review provided that the conditions set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 are satisfied.  Those conditions were stated by Kitto J in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-253 as being that the administrative act in question;  “is a bona fide attempt to exercise the power [conferred by statute], it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) ...” [citations omitted].  A fourth “Hickman condition”, is that a privative clause will not protect failures to comply with “imperative duties” or acts that exceed “inviolable limitations or restraints” under the relevant legislation or the Constitution;  NAAV at [14] and following (per Black CJ); at [59] (per Beaumont J); at [355] and [361]–[362] per (Wilcox J); at [446] and [492]–[499] (per French J); and at [619]–[626] (per von Doussa J).

13                  Mr Krohn of Counsel for the applicant made three broad submissions on the application of the Hickman conditions to the present case.  The first was that there had been actual bias on the part of the Tribunal, and that actual bias affecting the motives of a Tribunal member in making his decision is sufficient to preclude this Court from finding that there has been a bona fide attempt to exercise the power.  This, it was submitted, compels the conclusion that the Tribunal had failed to comply with the first of the Hickman conditions.

14                  The applicant’s second submission was that a finding of apprehended or unconscious bias can prevent an administrative decision from being referable to the power granted, thus infringing the second Hickman condition.  To this submission Mr Horan of Counsel for the respondent replied that a line of cases following NAAV has made it clear that the effect of s 474(1) is to preclude any review of a Tribunal decision for apprehended bias.  I was referred to NAEB v Minister for Immigration and Multicultural Affairs [2002] FCA 1092 where Moore J said, at [22];

“It seems to me that the reasoning of the majority [in NAAV] is apt to apply to a situation where it is contended that there is an apprehension of bias concerning the decision maker.  It can either be said that s 474 excluded the rules of natural justice (using that expression to comprehend both the requirement to provide a fair hearing in a procedural sense and conduct a hearing in manner that creates the impression of impartiality, assuming, for present purposes, that such a distinction has any substance) or that the section renders a decision immune from challenge where the decision maker in substance dealt with the matter even if, in doing so, gave the appearance of partiality.  In my opinion, it is not open to an applicant, because of s 474, to successfully impugn a decision of the Tribunal on the basis of apprehended bias.”

15                  I respectfully agree with his Honour’s conclusion, and, as a result, am able to confine any further consideration to the allegation of actual bias.

16                  The applicant’s third submission was that the Tribunal’s decision was so unreasonable that no reasonable tribunal could have made it, thereby attracting the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and that as a result the Tribunal’s decision was made without jurisdiction.

17                  Formal submissions were also made on behalf of the applicant that NAAV has been wrongly decided, with the consequence that the recent cases in which it has been applied are all also infected by error.  It was, however, accepted that I am bound in the present case to follow NAAV.  In this context, an argument was raised, that s 36(2) of the Act imposes an obligation on the Minister which is antecedent to the operation of the privative clause.  That obligation, it was said, required the Minister and then the Tribunal in reviewing the Minister’s decision to determine as an anterior question, whether the applicant is a refugee as defined in the 1951 Convention Relating to the Status of Refugees and is then a person to whom Australia owes protection obligations.  That determination, it was said, had to precede consideration of whether a protection visa should be granted.  If this submission were accepted determination of the suggested anterior question would not be protected by the privative clause and could be reviewed for the kind of jurisdictional error described in Craig v South Australia (1995) 184 CLR 163.  It is enough to dispose of this submission to point out that the judgment of the Full Court in NAAV (per Black CJ at [30];  and von Doussa J at [635]-[638], with whom Beaumont J agreed) and NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 bind me to conclude that a Craig jurisdictional error is rendered immune from review by s 474(1).  Further, it was held in NAAV that the Act contains a hierarchy of provisions which has the effect that any apparently inconsistent provisions are to be construed as subject to the operation of the privative clause.  To regard s 36(2) as requiring resolution of an anterior question would take that sub-section outside the operation of s 474(1) and thereby disregard the hierarchy which the Full Court in NAAV has discussed;  see at [535]-[536] per von Doussa J, with whom Black CJ and Beaumont J agreed on that issue.

18                  As I see it, the applicant could only succeed on this point if it were found that, by failing to perform the administrative exercise described in s 36(2), the Minister and the Tribunal had ignored an imperative duty or transgressed an inviolable limitation.  The applicant’s argument, in effect, was that the section might be susceptible to the kind of analysis undertaken by Black CJ in NAAV of s 116(1)(f) at [30]-[33] where his Honour found that an inviolable limitation is exceeded if a legal question, which had to be answered under the Act as part of the decision-making process has been answered wrongly.  This same argument, that whether an applicant meets the definition in the 1951 Convention Relating to the Status of Refugees is such a legal question and the need to answer that question, constitutes an inviolable limitation, was put to Heerey J in VDAA v Minister for Immigration and Multicultural Affairs [2002] FCA 1071.  In that case, his Honour observed, at [24] and [27]-[28];

“… … the Refugees Convention establishes no particular procedural process for the purpose of determining whether any individual is in fact entitled to refugee status.  Contracting States may establish whatever procedures they see fit for the purpose of such determinations and those procedures in fact vary widely:  Simsek v Macphee (1982) 148 CLR 636 at 643; Fernando v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 91 at [32]-[37], [53], [55]…

In any event, the judgments of the majority in NAAV make it clear that “jurisdictional” or “structural” or “inviolable” factors or elements are matters which arise at the initiation or activation of the decision-making process; see per von Doussa J at [625]. Likewise Black CJ (at [37]), in relation to the Wang appeal, thought that the particular area of decision-making had to be “enlivened”, and “enlivened only by a notice having a particular quality”.

By contrast, the decision which the Tribunal made as to the non-satisfaction as to the applicant’s answering the definition of refugee came at the end of the process.  The Tribunal had embarked on this task lawfully.  It was empowered by the Act to do so.  Section 474 has the effect that the way it went about its task is protected from judicial review.”

19                  I respectfully agree with these conclusions, which are similar to those reached by the Full Court of this Court in NAGT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 319.

Actual Bias

20                  The test of whether a Tribunal member has been affected by actual bias was considered by a Full Court of this Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 where Burchett J (at 126-127) made these observations;

“Actual bias, like any other conclusion of fact, may be established as an inference from circumstances.  ...  In my opinion …[the words] “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.  ...  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 ...

A notable feature of the Tribunal’s reasons is the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds.  Some of these conclusions involve the rejection of evidence which Mr Fordham had accepted after rigorous, even sceptical, oral examination of the appellant.  ...  An unbiased tribunal, although free to re-examine the matter for itself, could have been expected, in the circumstances of this case, to have given some weight to Mr Fordham’s acceptance of the appellant.  The Tribunal paid no regard to it, while giving great weight to adverse matters that plainly were not conclusive.”  (original emphasis)

21                  In the same case, North J (at 135) referred to the conclusion in Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224 (“Gooliah”) at 233-234 that “the Special Inquiry Officer apparently approached the matter with a mind made up” and;

 “[t]he performance of the Special Inquiry Officer on this matter was not that of one engaged in an objective search for truth. Rather it appeared to be an attempt to find justification or support for a point of view to which, in advance of the relevant testimony, he was already firmly committed.”

22                  The analysis by the Full Court in Sun makes it clear that a finding of bias will not be sustained merely because this Court regards the Tribunal as having followed a process of logic or reasoning which does not commend itself to the Court.  Thus, in the present case, had I been called on to decide for myself whether the applicant’s brother had been injured by extremists, I might, in drawing on ordinary human experience, not have regarded the attack as inherently less likely because it was claimed to have been carried out using a truck rather than a gun.  Indeed, I might have been inclined to the view that if a threat had been made by extremists, there would be little significance in how it was carried out, as the “message” would have been the same to the audience of hotel operators whom it was intended to intimidate.  However, the mere fact that the Court, had it been in the Tribunal’s place, might have attached more or less weight to certain matters does not establish that the Tribunal has been wrong-headed in matters of logic, and far less that, in the language of Gooliah, the member “approached the matter with a mind made up”.    

23                  Mr Krohn submitted that where the Tribunal has made a series of assertions that elements of the applicant’s account of events are implausible, the cumulative effect might be to “lead a fair-minded and reasonable observer to think that the tribunal might be prejudiced in the matter, [and] then that is sufficient at least to show apprehended bias”.  Although the possibility of a cumulative effect of that kind may be conceded, I do not consider that the circumstances of this case establish apprehended bias, let alone actual bias.  If the decision is to be impugned as coming within the relevant Hickman condition, actual bias, in my view, is necessary to negate a bona fide attempt to exercise the power reposed in the Tribunal.  That was apparently the view taken by Mansfield J in SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 where his Honour observed, at [60];

“The matters to which I have referred, in my judgment, are not explicable on the basis contended for by the respondent.  The combination of factors to which I have referred, includes the understating or ignoring of the claims of harassment and discrimination when the Tribunal must have been aware of them, its attribution of inherent unlikelihood to events which on the contrary in my view are inherently likely, and its assertion that the legal system in Iran could not condone the wrongful conviction of a Sabian Mandean accused of assaulting a Muslim woman (and one who was the wife of a prominent local official) flying in the face of the country information it recorded.  I consider, upon careful reflection, that the Tribunal embarked upon its review with a mind fixed upon rejecting the claims.  Even if the Tribunal accidentally overlooked the more specific claims of harassment and discrimination made by the applicants both personally and through their migration agent, that indicates to me a degree of capriciousness in addressing the review which, together with the other factors I have mentioned, points firmly towards it failing to endeavour in good faith to review the delegate’s decision.  Its doubtful fact finding does not simply indicate possible legal or factual error.  In my view it indicates in the circumstances a failure to attempt in good faith to undertake the review of the delegate’s decision with which it was charged under the Act. Whether that is because it had a view that Sabian Mandeans in Iran are generally not persecuted in Iran for reasons of their religion, or for some other reason, it is not necessary to explore.  But the applicants were entitled to their claims being addressed by the Tribunal without the Tribunal’s mind being foreclosed against them.  The conclusion I have reached, for the reasons given, is that this is one matter where the Tribunal did not undertake its task in good faith, but with a mind closed to acceptance of the claims.”

24                  However, as already indicated, I have not been able to conclude that the Tribunal in the present case embarked upon its review with a mind fixed on rejecting the applicant’s claims or foreclosed against those claims.  Whether the applicant’s claims were inherently likely or unlikely was not self-obvious but was a question on which reasonable minds might differ.  The present Tribunal’s approach to its task of fact-finding and the logic which it employed do not indicate to me a degree of capriciousness inconsistent with an attempt in good faith to discharge that task.

25                  Nor does the fact that a succession of suggestions made in the course of questioning by the Tribunal and repeated in the Tribunal’s ultimate findings of fact expose that the Tribunal member entered upon the hearing with predetermined views. As Wilcox J observed in Sun (at 122);

“… it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested;  “as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory”.  This includes questions designed to elicit information or submissions.  Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions.  The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view.”

26                  That observation applies with equal force to questions directed to an applicant by a Tribunal entrusted with an administrative function.  It is desirable that administrative decision-makers, when receiving oral evidence, put to witnesses any matters that are of concern to them so that the witnesses have a chance to address those concerns.  To keep misgivings or suspicions locked in the breast of the Tribunal member to be revealed only on publication of his or her findings would work a much greater unfairness than that imputed to the Tribunal in this case.  A court will not be justified in inferring actual bias merely because tentative views have been put with some vigour in an attempt to test the evidence of a witness.  I am not persuaded that the questioning undertaken by the Tribunal member in this case indicated that she approached the matter with a mind made up or unwilling to be persuaded.  Nor do I consider that the Tribunal exhibited in its reasons for decision, what Burchett J in Sun called “the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds.” The Tribunal referred to a number of reports from several government sources all of which provided “country information” to the effect that violence in the Punjab had either ended or had greatly diminished by 1997.  That information assumed considerable importance in the Tribunal’s reasoning.  Counsel for the applicant pointed out that various new reports had been placed before the Tribunal indicating that significant violence in the Punjab had continued after 1997.  However, that does not indicate that evidence favourable to the applicant was disregarded on merely colourable grounds.  The Tribunal appears simply to have preferred “country information” which emanated from official sources.  In my view, the evidence falls a long way short of establishing, to the standard exemplified by Sun, that the Tribunal came to the hearing with a closed mind and engaged in a merely colourable exercise of independent fact-finding and reasoning.

27                  It was submitted that, in expressing disbelief at almost every step of the sequence of events for which the applicant had contended, the Tribunal had effectively made a finding of fraudulent concoction of a story, including an attempt by the applicant to gain an improper advantage by misrepresenting the cause of his brother’s injuries.  It is true that the Tribunal found that the applicant’s version of events had been “fabricated” and that he was not a credible witness.  However, as I observed in Mousoof v Minister for Immigration and Multicultural Affairs [2000] FCA 1522 at [15];

“… … … the errors which the applicant imputes to it [the Tribunal] are all constituted by its declining to make findings of fact which he contends should have been made.  The RRT took that course after forming its own view of the credibility of the applicant and the likelihood, as a matter of logic or human experience, of the applicant’s assertions being true.  Those were all intrinsically aspects of the fact-finding function reposed in the RRT by the Act.”

28                  In the present case the Tribunal declined to accept the applicant’s claims which it regarded as implausible in the light of its own logic or human experience.  For the Court to revisit that issue would be an impermissible usurpation of the fact-finding function reposed in the Tribunal.

29                  For the sake of completeness, it should be recorded that Mr Horan, Counsel for the respondent, contended that, although actual bias might, in some cases, deprive a decision-maker’s actions of the bona fides necessary to preserve the operation of a privative clause on the proper application of the Hickman principle, not every case of actual bias would necessarily do so.  I was referred in particular to the judgment of Tamberlin J in NAML v Minister for Immigration and Multicultural Affairs [2002] FCA 1190, where his Honour suggested that an element of fault or even dishonesty is required to make out that the first Hickman condition has not been satisfied in a given case.  As I have already indicated, I do not believe that the evidence in the present case establishes any actual bias, let alone actual dishonesty, on the part of the Tribunal member.  As a consequence, it is unnecessary further to consider this submission.

Wednesbury Unreasonableness

30                  Mr Krohn for the applicant contended that the basis on which the Tribunal regarded the applicant’s account as implausible was not simply one that would not commend itself to the Court, but was so unreasonable that it would not be adopted by any reasonable Tribunal.  He pointed to the same matters which had been relied on in support of the claim of actual bias.  I am equally unpersuaded that this same impugned conduct makes out a case of Wednesbury unreasonableness.  Even if this conclusion be wrong, it is difficult to see how Wednesbury unreasonableness can be invoked to exclude the operation of the privative clause by application of any of the Hickman conditions.  It was held in NAAV that s 474 excludes review of a decision of the Tribunal for lack of procedural fairness which I take to comprehend concepts like Wednesbury unreasonableness.  Since an objective test like that for apprehended bias is insufficient to deprive an administrative decision of the protection, it follows, in my view, that a similar objective test like that erected in Wednesbury, even if capable of application on the facts, cannot operate to bring a case within one of the Hickman conditions.  The relevant Hickman condition requires an actual lack of bona fides, and I consider that unreasonableness alone will not satisfy that requirement.

31                  It was also submitted on behalf of the applicant that demonstrated unreasonableness could infringe the third Hickman condition, that the Tribunal’s attempts to exercise its statutory power would not be reasonably capable of being referred to the power.  That conclusion by no means necessarily follows from the premise.  The third Hickman condition focuses on whether the act complained of, (here a decision to refuse a visa), is reasonably referable to the power conferred on the Tribunal by the Act.  It is manifestly within the power committed by Parliament to the Tribunal to refuse a visa, and the act of refusal is thus an exercise of power protected by the privative clause.   In this respect, I refer to the authorities canvassed by Beaumont J in NAAV at [98]–[102], and in particular the following passage from the judgment of a Full Court of this Court in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, at [90];

“In the application of these principles to the present case, it is necessary to ascertain whether the error of the Full Bench, although jurisdictional, led to the making of an award of the type that s150 would not protect …  There is here no question of constitutional invalidity.  Nor is there any suggestion that the decision of the majority, resulting in the Full Bench’s award, was not a bona fide attempt to exercise the powers conferred on the Full Bench of the Commission by s45.  The award clearly relates to the subject matter of the legislation.  The only basis on which counsel suggested s150 would not protect the Full Bench’s award was that its making was not reasonably capable of reference to the power conferred by s45.  However, while the majority of the Full Bench misunderstood or overlooked the differences between the Commission’s relevant powers, and thereby fell into jurisdictional error in exercising the Full Bench’s powers under s45(7), the actual exercise of power is capable of reference to the powers conferred on a Full Bench.  It involves, on its face, an exercise of the power conferred by s45(7):  see The King v Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598 at 617.  Thus s150 operates to protect the award from prerogative relief.”

32                  For the reasons which I have endeavoured to explain, each of the applicant’s attacks on the decision of the Tribunal has failed.  In some respects the failure of those attacks has been ordained by the operation given to s 474 of the Act by the majority of the Full Court in NAAV.  I was therefore invited by Counsel for the applicants to defer giving judgment in this matter until the outcome was known of applications for special leave to appeal to the High Court in three of the five matters considered by the Full Court of this Court in NAAV.  However, I consider, with respect, that the appropriate response to Counsel’s invitation is that given by Sackville J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 at [67];

“Mr Reilly invited me to defer judgment until the outcome of the High Court challenge to the validity of s 474(1) is known.  In my opinion, that is not the appropriate course.  The law applicable to the present case is that laid down by the Full Court in NAAV.  The applicant, if she wishes to preserve her position in the event of a favourable High Court decision, may do so by filing a notice of appeal.”

33                  His Honour was there referring, I assume, to Re Minister for Immigration and Multicultural Affairs;  Ex parte Applicants S134/2002 in which the High Court reserved its judgment on 4 September 2002.

34                  Accordingly, the present applications must be dismissed with costs.

Associate:

Dated:              6 December 2002