FEDERAL COURT OF AUSTRALIA

Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877

MIGRATION – application for review of decision refusing applicant protection visa – procedural fairness – bias – actual or apprehended bias – where Refugee Review Tribunal held applicant’s evidence a recent invention – assessment of apprehended bias to be made in light of Refugee Review Tribunal’s functions and powers – effect of finding of bias on decision where application dismissed on alternative basis of possibility of relocation

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994)

52 FCR 437 cited

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

R v Watson; Ex parte Armstrong (1976) 136 CLR 248 applied

Livesey v New South Wales Bar Association (1983) 151 CLR 288 applied

Vakauta v Kelly (1989) 167 CLR 568 applied

Webb v The Queen (1994) 181 CLR 41 applied

Johnson v Johnson (2000) 201 CLR 488 applied

Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 applied

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001)

206 CLR 128 applied

Re Ruddock; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 cited

Re Refugee Review Tribunal; Ex parte AALA (2000) 176 ALR 219 cited

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited

Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170 cited

Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 cited

Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60 cited

APPLICANT A165 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and OTHERS

S 733 of 2003

LANDER J

7 JULY 2004

ADELAIDE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application is allowed.

2.                  The decision of the Refugee Review Tribunal given on 21 February 2003 is quashed.

3.                  The matter be remitted to the Refugee Review Tribunal for re-hearing according to Law.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) given on 21 February 2003.

2                     On 24 March 2003, the applicant commenced proceedings in the High Court of Australia seeking the issue of the constitutional writs to quash the decision of the RRT and remit the matter to the RRT for further consideration according to law.

3                     On 11 June 2003, Hayne J remitted the matter to this Court for hearing.

4                     On 19 February 2004, the applicant filed and served an amended application which identified the grounds of the application and gave particulars:

‘5.        The grounds of the Application are:

5.1       That a breach of the rules of natural justice occurred in connection with the making of the Decision.

5.2       That the Applicant was denied procedural fairness in connection with the making of the Decision.

5.3       That an error of law occurred in connection with the making of the Decision.

5.4       That the Decision involved the making of a jurisdictional error in that the Tribunal:

(i)         Identified the wrong issues/applied to the wrong test;

(ii)        Failed to take into account a relevant consideration; and/or

(iii)       Took into account an irrelevant consideration.

5.5       That the Decision was affected by bias.

5.6       That the Decision was otherwise contrary to law.

PARTICULARS OF GROUND

1.         The Tribunal failed to accord natural justice and procedural fairness to the applicant.  Every time the applicant stated a claim, the Tribunal member responded that it “had never previously been raised, and therefore it appeared to be a recent invention”.  It appears that the Tribunal member did not come to the Tribunal with a fresh mind and was not willing to consider the applicant’s claims.  Because the Tribunal Member did not appear with a fresh mind, the decision involved pre-judgement and bias.  In the alternative, the applicant was denied the right to be heard.  The Tribunal breached the rules of natural justice and made a jurisdictional error.’

5                     The applicant, who is a national of India, entered Australia on 28 January 2002.  On 5 February 2002 he applied to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa (Class XA).  On 27 May 2002 a delegate of the respondent refused to grant a visa.  On 24 June 2002 the applicant applied to the RRT for a review of that decision.

6                     The applicant was born on 4 May 1976 in Dasviga, Hoshiarpur, India.  He lived at the same address in Dasviga from May 1976 until 26 November 2000 when he travelled to Europe.  He returned to his previous address in India on 2 December 2000.  He remained at that address until 27 January 2002 when he left India legally, departing on a valid passport issued on 18 March 1998 in his own name and bearing his own photograph.

7                     He has four brothers.  At the time of the hearing before the RRT, his father was alive.  He has completed 15 years of education.  He speaks, reads and writes Hindi and Punjabi, and he reads and writes English.  So much was accepted by the RRT.

8                     The thrust of the applicant’s claim before the RRT was that he was an activist with the Congress Party in Punjab.  He claimed that about six months prior to coming to Australia, in about September 2001, after an election in the Punjab, the Akali Dal Party (ADP) came to power and, thereafter, he was subject to persecution by members of that party.  Later in his evidence, he said he was also persecuted by the ADP in the year 2000, as a result of which he fled to Germany for one week.

9                     He said that the mistreatment to which he was subject by the ADP supporters commenced in December 2001.  He said he was attacked two or three times and beaten.  Later, he said, he was hospitalised for three or four days.  He said his brother and his father were also attacked.  Later, he said he had reported these matters to the police.

10                  However, the RRT found that the applicant was not a credible witness.  It said:

‘Many of the key aspects of his testimony and his claims were simply not plausible.  There were a number of material or important contradictions in the applicant’s testimony and claims, which were not explained to the Tribunal’s satisfaction.  Some of his key claims were at odds with the independent evidence.  Some of his key claims were vague or not sufficiently detailed to be believable.  There were a number of recent inventions.  In these circumstances, for the following reasons the Tribunal finds that his claims are not credible and does not accept most of them.’

11                  The RRT effectively rejected the whole of the applicant’s evidence as being implausible or amounting to recent invention.

12                  Importantly, the RRT did not accept that the applicant was ever a member of the Congress Party as claimed.  Because it refused to accept that the applicant was a member of the Congress Party, it followed that it could not accept that the applicant was ever persecuted for being a member of that party.  The rejection of that aspect of the applicant’s evidence meant that nearly the whole of his evidence had to be rejected.  His case for persecution was based on his claim that he was a member of the Congress Party.

13                  The RRT also did not accept that the applicant had been persecuted at all after September 2001.

14                  The RRT had regard to country information.  It found there was no election in the Punjab in September 2001.  It found that the Congress Party came to power in the Punjab in February 2002.

15                  The RRT found that the authorities could not have been interested in the applicant when he left India, because he left India legally.

16                  Effectively, apart from accepting the matters to which I have referred, the RRT rejected the whole of the applicant’s evidence.

17                  It concluded:

‘Taken as a whole, in light of the implausibility of some of the key aspects of the applicant’s claims, the fact that there were a number of material contradictions in his testimony and his claims which were not explained to the Tribunal’s satisfaction, some of his claims were recent inventions, some of his claims were not sufficiently-detailed to be believable or were vague, and some of his claims were at odds with the independent evidence, the Tribunal can only come to the conclusion that key aspects of the applicant’s testimony are not credible and therefore finds that he is not a credible witness.  Accordingly, since the Tribunal finds that most of the applicant’s claims are not credible, the Tribunal is not satisfied that he has a well-founded fear of persecution due to political opinion, religion, nationality or for any other Convention reason.’

18                  However, the RRT further considered the applicant’s claim upon the assumption that it was wrong as to the applicant’s credibility and upon the basis that it should accept the applicant’s claims as credible.  The RRT found that the applicant ‘does not have a well-founded fear of persecution for a Convention reason’.

19                  It reached that finding upon the basis that, as at February 2002, the Congress Party held government in 13 of India’s 28 States, including the Punjab.

20                  Moreover, the RRT was satisfied that there was State protection in India, particularly in the applicant’s home State of the Punjab.  It said:

‘The applicant admitted as much during the hearing, when he stated that he would be provided with protection in the Punjab and in the other states where the Congress Party holds power at the state level.  Of some significance is that according to the above-cited US State Department Report on Human Rights Practices for 2002 the state governments have primary responsibility for law and order.’

21                  The RRT concluded:

‘The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.  The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders.  Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1.’

22                  The RRT considered that it would not be unreasonable for the applicant to relocate in one of the States under the control of the Congress Party.

23                  At the judicial review hearing in this Court, the applicant relied upon an affidavit of the applicant’s solicitor, which exhibited a copy of a transcript of the proceedings before the RRT.  The applicant also read his own affidavit in which he deposed:

‘4.        I felt that a lot of the claims that I made were ignored by the Tribunal Member hearing my case.  On many occasions when I stated the claims and gave oral evidence the Tribunal Member would respond by saying “it is a recent invention” when in fact it was not a recent invention.  I was trying to elaborate on the claims I had already made in writing.  I felt that on a number of occasions I was cut off by the Tribunal Member and did not get a chance to explain myself in a better way.  I felt that I was not given an opportunity to explain myself, and therefore I was not given an opportunity to present my case.

5.         In addition to this I feel that I was not given enough time to present documentary evidence in support of my claims.  Since I lodged my application for a protection visa my father had been ill in India and my father became severely ill in the several months leading up to the RRT hearing in February 2003, that is from approximately November 2002 to February 2003.  My brothers were very much involved in taking care of my ill father, and so it was hard for my father and for my brothers to obtain the documentary evidence, which I wished to place before the RRT as part of my case.  My father subsequently died in December 2003.  When I told the Tribunal Member about my father being ill and asked for more time the Tribunal Member responded by saying that he would not give me anymore time.

6.         In addition to this I only provided a short typed statement to a migration agent which was lodged with my protection visa application and it was always my intention to substantially expand upon this by way of oral evidence at the RRT hearing and also to produce further documentary evidence in support of my claims.’

24                  Originally, the applicant’s claim was that the RRT was actually biased.  However, at the hearing, the applicant enlarged his claim to argue that if the Tribunal was not actually biased the decision should be quashed because it was given in circumstances where there was an apprehension of bias.

25                  The RRT said that it had examined all of the written material before the hearing.  In fact, it was obliged to do that under the Migration Act 1958 (Cth) (the Act).  Thus, it was aware of the thrust of the applicant’s claim and, in particular, that he claimed that he had been subject to persecution after a change of government in September 2001 in which the ADP was elected.

26                  It was also aware that such a claim was inaccurate because there had been no such election at that time.

27                  I have read the transcript of the RRT hearing, which took place on 14 February 2003.

28                  The member explained to the applicant the purpose of the hearing.  He said:

‘To make that determination I will be asking you questions and will give you the opportunity to expand upon your case.  Everything you say at the hearing today in [sic] confidential.  If there is something that you don’t understand please draw that to my attention and I will do my very best to make the matter understandable to you.  At the end of the hearing I will give you an opportunity to make any final remarks that you wish to make.’

29                  He told the applicant that the hearing would last approximately two hours and that he would give a decision as soon as possible after the completion of the hearing.

30                  It is clear from the transcript that the RRT was of the opinion that much of what was said by the applicant was ‘implausible’ or amounted to a recent invention.  The first topic raised was the applicant leaving India legally on 27 January 2002, which the RRT said was implausible if the authorities were interested in the applicant.

31                  Next, the RRT said that it found it hard to believe that the applicant had not sought further documents in support of his application until November 2002, in circumstances where the applicant had made this application in January 2002.

32                  The member told the applicant that he thought that the three page statement, which accompanied the application, was very vague and general and contained very few details, especially since a migration agent assisted in its preparation.  The applicant replied and said that no agent assisted him.  It was pointed out to the applicant that it was signed by a migration agent.

33                  The RRT told the applicant that it found it implausible that the applicant had not obtained a membership card verifying his membership of the Congress Party.

34                  The applicant said that he could get the information, to which the member said:

‘No, you have had ample opportunity to obtain all documents and do your preparation for the hearing – and that request is denied.’

35                  The applicant said:

‘One moment can I – I don’t understand that.’

36                  The member said:

‘You have had ample opportunity to prepare for the hearing today and to obtain all necessary documents and any request for a further delay is denied.’

37                  Counsel for the applicant criticised the RRT’s refusal to give the applicant time to obtain relevant documents.  The respondent’s counsel pointed to a letter written by the Minister’s delegate to the applicant on 18 February 2002 which included the following:

‘1         You have not provided any detail or evidence to substantiate your political involvement despite the assistance of a registered migration agent in the preparation of your claims.’

38                  In the same letter, the delegate pointed out that the Congress Party was one of the largest in India.

39                  The Minister’s delegate gave reasons when he refused the applicant’s application and published those reasons to the applicant on 27 May 2002.  He wrote:

‘The applicant has not provided any detail or evidence to substantiate his political involvement.  Despite being advised that the lack of evidence to support his political involvement could lead the decision maker to reject his claim, no evidence or substantiation has been provided.  Given that the applicant has not provided any evidence or reason why he has not done so, I do not accept that that [sic] he is a member of the Congress Party as claimed.’

40                  In the light of that advice, it was argued that the RRT member was entitled to take a firm line.  I do not think that the RRT’s refusal to allow the applicant time to obtain the documents is, per se, procedurally unfair.  The applicant had sufficient time to obtain the documents.  I think, however, the RRT could have explained to the applicant in better terms why it took that view.  The statements, therefore, are not irrelevant in a consideration of bias.

41                  Next, the RRT said that there was no change of government as claimed in September 2001, to which the applicant replied:

‘At that time the government was of Akali Dal – and I used to support Congress.’

42                  The applicant was questioned about his failure to complain of the threats that were made to him after September 2001.  He replied that he had experienced similar threats in the year 2000 and the member said:

‘The truth is that you had any problems in relation to your political activities or opinion in 2000 was never previously raised before the hearing today.  Your statement only refers to events on and after September 2001 and therefore since you have had ample opportunity to present that claim, since you have been in Australia now for more than a year, it seems to me to be a recent invention – would you care to comment?’

43                  Next, the member said that it was hard to accept that he waited until the end of January 2002 to leave India when he had been in possession of a passport since March 1998.

44                  The member said that it was difficult to accept that the applicant had not seen a doctor after being attacked by ADP supporters.  The applicant responded by saying that he had stayed for three or four days in hospital and then was taken home.  The member said that appeared to be a recent invention and invited the applicant to comment.

45                  The applicant also said that he reported the attacks to the police, to which the RRT responded:

‘No I don’t accept that because it doesn’t, you have had ample opportunity to present all those kinds of details in your statement.  You are well educated, you speak, I’m sorry, you read and write English, you were assisted by a migration agent and claim that you reported such attacks to the Police, is a very significant claim that should have been included in that application, or at least prior to the hearing today and again, for those reasons, it seems to me to be a recent invention.’

46                  The applicant insisted that he had reported the matters to the police and the RRT said:

‘If you were threatened, sorry if you were attacked and beaten two or three times in December 2001, again it seems to me hard to accept that you did not relocate to another part of the Punjab or other parts of India for your own safety and security.’

47                  The applicant said:

‘It was very hard for me to move because my Father was very sick and my Mother was also very sick.’

48                  The member said:

‘No I don’t accept that either.  You have four Brothers, who could have assisted your Mother and Father.  If your life is in danger you take care of yourself and you go elsewhere.’

49                  Shortly after, the RRT said:

‘If you were beaten and attacked two or three times in December 2001 and hospitalised for several days as a result, it also seems to me very hard to accept that you waited until January 2002 before finally leaving India, because you had a passport in your possession, as of March 1998 you could move out any time prior to that.’

50                  Questions were asked about his father and brother being attacked, and the Tribunal member said:

‘I find it difficult to accept that your Father and your Brother were attacked in December 2001, since they were not called as party members like you.’

51                  The applicant said that he had reported those matters to the police on behalf of his father and brother and the member said:

‘Again that has never been raised prior to today, it’s a significant claim.  If it is true it would be raised in your application or soon thereafter and therefore it seems to be a recent invention.’

52                  Shortly after, the member said:

‘TM     If your Father and Brother were attacked once or twice in December 2001, it seems to me hard to accept that they also did not relocate to another part of the Punjab or India for their own safety or security.

A         But they were not troubled as much as I was being troubled.’

53                  I cannot pass by that statement by the RRT, in its examination of the applicant, without expressing my surprise.  I do not know how the RRT could have made that comment without knowing the applicant’s father’s and brother’s circumstances.

54                  The RRT then returned to the applicant’s trip to Germany in 2000.

‘TM     In your application you claim that you went to Germany for seven days, in 2000.  I understand that is 2000 February 2001, it seems to me implausible that you didn’t present your refugee claim in Germany, if your claims were true.  If you had been attacked & threatened, if you had feared persecution in India, & since Germany is a signatory to the refugees convention, & has a very well developed refugee determination system & a very large Indian community.

…

TM      Sorry.  It seems to me implausible that you did not present a refugee claim in Germany, if your claims were true.

TM      If you & your relatives had been attacked & threatened.

TM      If you had a fear of persecution in India, & since Germany is a signatory to the refugees convention and has a very well developed refugee determination system and a very large Indian community.  Would you care to comment?

A         When I lived in Germany, I left from Germany [sic] & that time my party members said come back & we will provide you with all the protection.  When I got back they could not help me.

TM      If you had a fear of persecution in Germany in 2000 following the attack that you talked about today, which you claim took place in that year, it seems to me implausible that you would have returned to India, a country that you had a fear of persecution at that time.

A         All those people they provided assurance to me that they would provide protection to me, & based on their saying I came back.

55                  The Tribunal member moved to another topic:

‘TM     In your application you say that fellow Indians were killed & their bodies were everywhere, floating in the river & by the roadside.  In which month & year did that occur?

A         This happened around June.

TM      Which year?

A         Last year, 2001.

TM      Last year was 2002.

A         This was 2001.

TM      And where did these incidents occur?

A         Um, this happened very close to our temple.

TM      Who was responsible?

A         We could not come to know, but it was somebody from our anti party.

TM      What if you didn’t know who it was then how did you also know that it was from an opposition party?  That makes no sense?

A         Those people used to travel out & they used to come & trouble us in our temple.’

56                  The member raised the topic of the election in February 2002:

‘TM     In the review application that you lodged for the tribunal in June 2002, you said six months ago the Government of Punjab changed – how?  The tribunal has different information that contradicts that claim because in February 2002 the Congress party won the State elections in Punjab, so could you please explain that contradiction.

A         During that period the Akali Dal was in power, that was in 2001.

TM      The congress party is now in power in the Punjab & therefore it is your party, the Congress party, which won the elections & they would provide you with protection that’s safe if you were to return to the Punjab.

A         I understand they will provide me the protection, but it is still not very secure for me.  I’m not very sure.

TM      The tribunal also attempted to obtain information to confirm that the Akali Dal party, has attacked Hindus in the Punjab and no information was found in these sources consulted to confirm that claim, and therefore … is true.  Would you care to comment?

A         The people who were with me they were also Hindus.  They were also attacked.’

57                  A decision maker may be actuated by bias for any number of reasons.  The decision maker may have a personal animosity towards a litigant.  He or she may have an interest in the outcome.  Sometimes actual bias is a result of the decision maker being actuated by a prejudgment.  In this case, it is claimed, that the decision maker prejudged the decision and came to the hearing with that prejudgment.

58                  The principles relating to actual bias arising out of prejudgment were considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421.  Gleeson CJ and Gummow J said at [72]:

‘The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.’

59                  Actual bias is not easily proved.  It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker’s predetermined decision would not vary.  To determine whether a decision maker is biased requires an examination of that person’s subjective state of mind.

60                  Although the RRT on a number of occasions commented on the applicant’s evidence, indicating that the evidence could not be believed, or was a recent invention, or was implausible, I am not satisfied that the applicant has established that the RRT’s mind could not be changed, only that it was not changed.  It was not changed because the RRT believed that the applicant’s account of events was implausible for a number of reasons.  The hearing was conducted in a manner to allow the applicant the opportunity to persuade the RRT that his claims were true.  The RRT raised the matters which concerned it with the applicant.

61                  Central to the RRT’s rejection of the applicant’s case, was its finding that there was no election at the time when the applicant said he came under notice and suffered persecution by the ADP Party after the September 2001 election.  If there had been no election, as the RRT has found, there could have been no change in the applicant’s circumstances for that reason.

62                  The RRT had the obligation of giving the applicant an opportunity to comment upon all of those matters which the RRT thought were important for the purpose of its conclusion.  It therefore had the obligation, which it discharged, of inviting the applicant to comment on each and every matter which it considered important for its decision.

63                  It is difficult to prove the subjective state of mind of the decision maker.  Whilst it might be possible to establish that the decision maker had a view, and even a strong view, prior to the decision maker hearing all the evidence or submissions, it is often very difficult to establish that the decision maker was not prepared to change his or her mind, whatever the evidence or submissions.

64                  Whilst the applicant has established that the RRT had a very firm view about the weaknesses in the applicant’s case prior to the hearing, in my opinion, the applicant has not established that the RRT was actually biased.

65                  Unlike the test for actual bias, the question for apprehended bias is an objective one; whether a reasonable bystander (or fair minded lay observer) might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision maker is required to decide: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.

66                  The RRT must be independent and impartial.  It must deliver justice.  Justice must not only be done, it must be seen to be done.  Justice can only be done by a decision maker who is not biased, but independent and impartial.  Justice can only be seen to be done where a reasonable lay observer might not apprehend that the decision maker may bring a partial mind to the resolution of the question for decision.

67                  The question for determination when considering apprehended bias is not the state of mind of the decision maker, but the state of mind of a reasonable bystander properly informed: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].  In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four separate, but overlapping, categories which might give rise to apprehended bias; interest, conduct, association and extraneous information.

68                  On this judicial review hearing, the applicant relies upon the second category, conduct.  The question in this case is whether the way in which the member of the RRT conducted the hearing and himself might give rise to an apprehension of bias.

69                  The Tribunal’s conduct is to be measured by reference to the function with which the Tribunal is charged; the nature of the process before the Tribunal and the powers which it has to exercise: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [27]; and, most importantly, the way in which it is to conduct itself and discharge those powers.

70                  The RRT must conduct its review in private: s 429 of the Act.  Its proceedings, therefore, are not open to public scrutiny.  Its decisions are subject to judicial review, but only to enquire whether it reached its decision acting within its jurisdiction.

71                  The RRT must invite an applicant to appear before it unless the RRT considers that it can decide in favour of the applicant on the papers or unless the applicant consents to the RRT deciding the review without the applicant appearing before it: s 425(2).  The RRT’s powers are quite extensive: s 427.  It may summon persons to give evidence or produce documents: s 427(3).  It can require a person appearing before the RRT to give evidence on oath or affirmation: s 427(3)(c).

72                  It exercises its powers in circumstances where the applicant is not entitled to be represented by any other person, or examine or cross-examine any other person appearing before the Tribunal to give evidence.

73                  Its function is not adversarial but inquisitorial: Re Ruddock; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ.  The RRT member must be a fair inquisitor.

74                  The RRT is charged with the responsibility of reviewing decisions of the Minister’s delegate refusing the issue of visas to applicants.  It has to determine whether the Minister’s delegate was right to refuse the issue of a protection visa to an applicant who claims that they fear, on good grounds, that they will be persecuted when returned to their native state: s 411(1)(c).  Any applicant’s claim necessarily means that the applicant is asserting that the persecution involves serious harm and systematic and discriminatory conduct: s 91R.  The particular applicant is asserting that the serious harm that the applicant alleges will be suffered includes a threat to the applicant’s life or liberty; or significant physical harassment or ill treatment of the applicant; or significant economic hardship that threatens the applicant’s capacity to subsist; or denial of access to basic services; or denial of a capacity to earn a livelihood which might threaten the applicant’s capacity to subsist.  The sensitivity of the application is acknowledged in s 91X of the Act.  The importance of the application to the particular applicant cannot be over-emphasised.

75                  The Act itself provides that the review will be fair: s 420.  The Act also provides that the hearing should be just, economical, informal and quick.  The RRT must act according to the substantial justice and the merits of the case: s 420(2)(b).  Most importantly, an applicant must be afforded procedural fairness on the hearing of any review: Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 176 ALR 219.  This, subject to any judicial review, which is strictly limited, is the applicant’s last chance of obtaining the appropriate permission to stay in Australia.  It is vital that justice is done and seen to be done by the RRT.

76                  A member has the obligation to advise the applicant of his or her concerns to give the applicant an opportunity to answer those concerns or explain any inconsistency in the material presented to the RRT: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

77                  The RRT might have to confront an applicant with matters of concern, including matters affecting the applicant’s credibility.  In doing so, the RRT might have to question an applicant in a different manner to which a Judge could in adversarial curial proceedings.

78                  It is a matter of judgment whether a court concludes that a fair-minded lay observer might think that the RRT might not bring an independent mind to the resolution of the question before it.

79                  In my opinion, a fair-minded lay observer could reach that conclusion in this case.

80                  For the reasons I have already given, I am not satisfied that the RRT member was actually biased.  I am, however, satisfied that the manner in which the RRT member conducted his inquiry and the comments made by him in response to answers given by the applicant, would allow a reasonable lay observer to conclude that the member might not bring an impartial mind to the question that had to be determined.

81                  However, that is not necessarily the end of the matter.  The Minister has argued that even if the applicant succeeded on his argument of apprehended bias, the RRT’s decision must stand because the RRT also found that the applicant could relocate within India and, thus, was not entitled to a protection visa.  The RRT said:

‘However, even if the Tribunal has arrived at the wrong conclusion as to the applicant’s credibility, and it were to accept that the applicant’s claims are credible and to accept his claims of past events, it finds that the applicant does not have a well-founded fear of persecution for a Convention reason.’

82                  The RRT then applied the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and found that it would not be unreasonable to expect the applicant to relocate.

83                  The Minister argued that the findings of relocation were not tainted by any finding of apprehended bias and the application should be dismissed.  The Minister argued such an approach would be consistent with a decision of Wilcox J in Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 at [46] where his Honour said:

‘Although I think the Tribunal member fell into error in relation to each of the statutory declarations, one being an error favourable to the applicant and the other adverse, I find no error in the Tribunal’s ultimate conclusion that “the visa applicant does not meet the requirements of subclause 801.221(6).”  It follows that the Tribunal did not err in law in affirming the delegate’s decision.’

84                  It was also argued that dismissing the application would be consistent with those authorities which establish that, unless there is the possibility of a different outcome, the Court should not exercise its power to remit the matter to the RRT: Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170 at [62]; Minister for Immigration and Multicultural Affairs v  Yusuf (2001) 180 ALR 1.

85                  It was submitted that an applicant, when relying on an allegation of bias, needed to establish, at least, the possibility of a different result: Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60.

86                  In my opinion, once an applicant has established that a fair-minded lay observer might think that the RRT might not bring an impartial mind to the question to be resolved, the RRT should cease to hear the matter.  If the applicant can establish that matter on an application for judicial review the Court must quash the RRT’s decision and remit the matter to the RRT for a further hearing.  That is so, even if the RRT has arrived at its decision on alternative bases, one of which does not depend upon an assessment of credibility.

87                  In this case, the RRT found, alternatively, that the applicant could relocate.  Although that finding is not in any part dependant upon an assessment of the credibility of the applicant, it is still a decision arrived at by a decision maker who it might reasonably be thought to be biased.  I have already pointed out the importance of the functions discharged by the RRT and those matters do not need to be repeated.  It is critical that the RRT should not only do justice but be seen to be doing justice.  The RRT cannot be seen to be doing justice if the RRT is not seen to be independent and impartial.  Once the proposition of apprehension of bias is established, the decision maker is, thereafter, disqualified from deciding the issues between the parties.  That is so whether those issues are dependent upon a finding of credibility or otherwise.  A decision maker, who might reasonably be thought to be biased, should not decide any of the questions before the decision maker howsoever they arise and howsoever they fall for determination.  Any apprehension of bias taints the whole decision.

88                  That view is not inconsistent with the decision of Wilcox J in Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs.

89                  The cases which say that an application should be dismissed, unless there is a possibility of a different outcome, have no application where the RRT is found to be actually biased or considered to be possibly biased.  Once that is established, no further enquiry is necessary.  All applicants are entitled to a hearing before an independent and impartial Tribunal.  That is a fundamental right.

90                  For those reasons, I would allow the application.  I would quash the decision of the RRT given on 21 February 2003.  I would make an order remitting the matter to the RRT for further consideration according to law.

Associate:

Dated:              7 July 2004