FEDERAL COURT OF AUSTRALIA

MZWCL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 635

MIGRATION – appeal from decision of Federal Magistrate – jurisdictional error – appellant claimed fear of persecution for political activities – Refugee Review Tribunal accepted some claims of assault, property damage and threats – Tribunal found no fear of future harm amounting to persecution – Tribunal held State-protection available – whether Tribunal misinterpreted the terms “well-founded fear” and “persecution”.

APPLICATION – leave to amend Notice of Appeal – journal article joint authored by presiding Tribunal member – article published after decisions of Tribunal and Federal Magistrate – article argued that State-sanctioned torture was morally justifiable in some circumstances – reasonable apprehension of bias – different notion of persecution than that required by law – whether new grounds of appeal had reasonable prospect of success.

Held (on appeal):  Tribunal’s evaluation of threats made and past harms in finding no persecution – revealed no jurisdictional error – State protection available in the circumstances in any event.

Held (on application for leave):  Content of journal article incapable of firmly establishing reasonable apprehension of bias – insufficient connection between the views expressed and the issues determined in the Tribunal – no demonstrable error in Tribunal’s definition of refugee – no reasonable prospect of success.

Migration Act 1958 (Cth) s 36

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied

SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 cited

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 applied

Raheem v Minister for Immigration & Multicultural Affairs [2001] FCA 940 cited

VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 307 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112 applied

Ratnayake v Minister for Immigration & Multicultural Affairs [1998] FCA 1141 applied

Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 cited

Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 referred to

Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487 applied

SZBOT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 411 cited

Applicant VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018cited

O’Brien v Komesaroff (1982) 150 CLR 310 applied

Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 applied

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 cited

Re Minister for Immigration and Multicultural Affairs;  Ex parte Epeabaka (2001) 206 CLR 128 referred to

Webb v R (1994) 181 CLR 41 followed

R v Commonwealth Conciliation and Arbitration Commission;  Ex parte Angliss Group (1969) 122 CLR 546 applied

Re JRL;  ex parte CJL (1986) 161 CLR 342 applied

“Not Enough Official Torture in the World?  The Circumstances in which Torture is Morally Justifiable” (2005) 39 USFL Rev 581

MZWCL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

No VID 414 of 2005

FINN J

ADELAIDE (HEARD IN MELBOURNE)

20 JULY 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         Leave to amend the Notice of Appeal be refused.

3.         The appellant pay the first respondent’s costs of the appeal and of the application for leave to amend. 

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This matter involves both an appeal against a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) and an application for leave to amend the Notice of Appeal to add a further ground of appeal.  The Tribunal’s decision rejected the appellant’s application for a protection visa under the Migration Act 1958 (Cth).

2                     The ground of appeal is that the Federal Magistrate erred in not finding that the Tribunal’s decision was affected by jurisdictional error.  The alleged error, it is said, is manifested in three ways which can be described compendiously in the following manner.  In light both of the findings the Tribunal made and of what it was prepared to accept of the appellant’s account of events, its conclusions that the appellant did not have “a well-founded fear of being persecuted for reasons of … political opinion” indicated that it incorrectly interpreted and applied the constituent elements of that formula in the Refugees Convention as incorporated by s 36 of the Migration Act.  The appellant, nonetheless, accepts that the Tribunal’s initial formulation of the law relating to who is a “refugee” – it was contained in the now almost boilerplate version given in Tribunal decisions – is unobjectionable.

3                     My own view is that to the extent that the Tribunal is alleged to have misinterpreted or misapplied the terms “well-founded fear” and “persecution”, the appeal does no more than invite me to enter upon questions of fact and degree which, as is well accepted, are for the Tribunal to determine.  The alleged error in interpreting or applying the terms “for reasons … of political opinion” involves a misreading of the decision.  In any event the Tribunal had a separate reason for disposing of the application and this was that State protection was available.

4                     The application for leave to amend the Notice of Appeal arises in an unusual way.  After both the decisions of the Tribunal (of 3 December 2003) and of the Federal Magistrate (of 13 April 2005), the appellant became aware of an article jointly authored by the Tribunal member who heard and rejected his application, in which it was argued that torture may be licit in certain circumstances.  That article, jointly authored by Mirko Bagaric (the Tribunal member) and Julie Clarke, is entitled “Not Enough Official Torture in the World?  The Circumstances in which Torture is Morally Justifiable” and was published in the University of San Francisco Law Review in Spring 2005 (see (2005) 39 USFL Rev 581).  The new ground of appeal for which leave is sought alleges in consequence of what is said in the Article, that (a) it should be inferred that the Tribunal member did not properly interpret the protection given against persecution under the Migration Act;  and (b) there is a reasonable apprehension that the Tribunal was or may have been biased.

5                     I have refused leave to amend because I am satisfied that in the particular circumstances of this matter having regard (i) to the nature of the claims made by the appellant in his application to the Tribunal and (ii) to the particular burden of the article in question, the proposed ground does not have a reasonable prospect of success.

Background and the Appellant’s claims to refugee status

6                     The appellant is a Sinhalese national of Sri Lanka who arrived in Australia on 16 August 2002 and applied (together with his family) for a protection visa.  A delegate of the respondent Minister having refused to grant a protection visa, he sought review of that decision by the Tribunal.

7                     The following account of his claims before the Tribunal is in précis form and is taken from the brief statement of those claims in the appellant’s written submissions to this Court. 

8                     The appellant is a strong supporter of the Sri Lanka Freedom Party (“SLFP”).  He therefore experienced discrimination, as did his family, from the rival United National Party (“UNP”).

9                     The appellant became a member of the Sri Lanka Police Force and was eventually transferred to the anti-terrorist unit attached to the Criminal Investigation Department.  In 1994 he became an officer in the Search Unit of the President’s Security Division (“the PSD”) and in 1995 was an officer in charge of the Search Unit.  This involved him in daily contact with and responsibility for the security of the President of Sri Lanka.  On one occasion he discovered a suicide bomb jacket in the Parliament and hand grenades close to the President’s house.

10                  The appellant also campaigned on behalf of the People’s Alliance (“the PA”) in the 1989 and 1994 elections.

11                  During the 1994 election campaign he received threatening calls from his political enemies.  Stones were thrown at his house and windows broken.  His father was attacked and assaulted and received serious injuries to his head and hands which put him in hospital for more than a week.

12                  During the 2001 election the UNP came to power.  Persons involved with the UNP made threatening calls and wanted to take revenge on the appellant for an attack on UNP supporters for which they believed he was responsible.

13                  In May 2002 the appellant was severely assaulted by 3 masked people who beat him with clubs close to his home and made political threats to him at the time.  He reported the matter but the police not having any evidence as to identity could not do anything about the assault.  Threats against the appellant continued for political reasons.

14                  The appellant came under pressure from one of his superiors to make changes in the police records in order to clear the name of that superior.  The appellant was reluctant to do that but was in fear of consequences the senior officer could cause him.  That senior officer was arrested but is at present released on bail. 

15                  The appellant decided to leave the country “in order to escape from the hands of my enemies and to save my life and my family”.  His chief sources of fear were political opponents who were behind threats and the assaults upon his father and himself and the former superior officer in Security, though he claimed as well that he also feared the LTTE (the Liberation Tigers of Tamil Eelam) because he apprehended some of their members when working in the police force before his transfer to the PSD in 1994. 

The Tribunal’s Decision

16                  The Tribunal rejected the claim that the appellant had a well founded fear of persecution for a Convention reason by either the former director of the Security Division or by the LTTE.  These conclusions are not in issue in this appeal. 

17                  It was accepted that the appellant was a supporter of the SLFP and had been relatively active and quite prominent since 1983.  The Tribunal also accepted “that he has experienced some level of mistreatment and harassment because of his political activities, the most serious incident being the assault in May 2002 …”. 

18                  The Tribunal reviewed general information concerning the situation in Sri Lanka relating to political violence but concluded that:

“Even though the applicant has been previously assaulted and has had some property damaged and has received threats (most of them being indirect) regarding future harm, this does not indicate that he has a well founded fear of persecution … the applicant (and his father) has received many threats over a long period of time, yet they have not been carried out – with the exception of the assault and property damage on the accused.  This provides me with a strong foundation for confidence that the threats are not a true indication of what may happen to the applicant.  Rather they are attempts to unsettle the applicant.”

This paragraph, I would interpolate, is central to the present appeal.

19                  The Tribunal concluded also that the appellant could receive “adequate protection from the police”. 

20                  The Tribunal further said:

“Finally, even if I accept all of the applicant’s material claims … the harm he fears from UNP supporters does not constitute persecution because itdoes not have an official quality.”

21                  Earlier in its reasons the Tribunal had stated – conformably with a line of authority adopting and endorsing observations of Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 – that “the persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality”:  see SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 at [18].

22                  Having referred to the harms the appellant fears from the UNP supporters as not constituting persecution because it does not have an “official quality”, the Tribunal went on:

“In this regard, I note the following remarks of Hely J in the Federal Court matter of S K M Habibur Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 (10 February 1999) wherein His Honour considered claims in relation to electoral violence in Bangladesh that appears similar to the situation in Sri Lanka:

            Despite finding that violence was a pervasive part of the culture of political life in Bangladesh, RRT was of the view, based on the independent evidence, that members or supporters of the Jatiya Party were not subjected to treatment which could be characterised as persecution by members or supporters of other political parties.  Although RRT accepted that if the applicant returned to political activities upon returning to Bangladesh he could be harmed by members of other political parties, if that occurred, it would be in the context of acts of violence committed by members of all Bangladeshi political parties, and not as a result of persecution. 

            The fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite ‘official’ quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh.”

The application was rejected.

THE FEDERAL MAGISTRATE’S DECISION

23                  It is unnecessary to refer to His Honour’s reasons dismissing the appellant’s application for judicial review of the Tribunal’s decision.  The grounds of that application are replicated in the grounds of appeal of this Court.

THE APPEAL

24                  Because the Tribunal did accept that the appellant had been assaulted (in 2002), had some property damage and had received threats (mostly indirect) regarding future harm, but nonetheless did not find he had a well-founded fear of persecution, I am asked to infer that (a) it did not correctly interpret or apply the “well-founded fear” component of the definition of a refugee;  and (b) it did not consider that a pattern of repeated threats over a long period of time might itself amount to persecution.

25                  Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn.  Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. 

(i)         Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court:  VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24];  see also Raheem v Minister for Immigration & Multicultural Affairs [2001] FCA 940 at [31]. 

(ii)        Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal:  VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 307 at [20]-[28].

(iii)       Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271.

(iv)       The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded:  M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112 at [13].

(v)        The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution:  Ratnayake v Minister for Immigration & Multicultural Affairs [1998] FCA 1141.  What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a “real chance” of persecution for a Convention reason if that person is returned:  Ratnayake;  Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20].

26                  Turning to the Tribunal’s evaluation of the claim of a well-founded fear of persecution, it is clear that it made no finding and had no need to make a finding that the harm the appellant experienced in the past itself amounted to persecution, although it accepted he experienced the harm claimed.  It equally is the case that the Tribunal made no finding that threats could not amount to persecution.  Rather, having evaluated the threats actually made, it determined that even when coupled with the past harms, these did not sustain a well-founded fear of persecution.

27                  These conclusions fell well within the Tribunal’s proper province.  It made its judgment of the significance, seriousness and, in the case of the threats, the purpose of the conduct in question.  As Sundberg J said in Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 at [23]:  “That the Court might not itself have taken the same view of the facts as the Tribunal does not establish error”.  No reviewable error has been disclosed.

28                  Distinctly, the appellant claims that the Tribunal misunderstood the “official quality” that may be required in the course of persecution such as to constitute a person a refugee under the Convention.  I already have indicated that the Tribunal’s understanding of what was comprehended by the “official quality” requirement as expressly explained in its Reasons, was orthodox and unobjectionable.  Before referring again to this matter towards the end of its reasons, the Tribunal found that despite his fears of harm at the hands of UNP supporters, the appellant could access and be provided with adequate State protection.  It is in this context that its comments on “official quality” are to be considered when it indicated that the harm the appellant fears from UNP supporters did not have an official quality.

29                  On a fair reading of the Tribunal’s reasons, it is apparent that the Tribunal was intending to signify that such violence as occurs between members or supporters of political parties (which was the essence of the appellant’s claims about the UNP supporters) did not amount to persecution, first because such violence was not official, or officially tolerated or uncontrollable by the State and secondly, because it lacked the selective or discriminatory quality which is inherent in the notion of persecution.  While each of these reasons was sufficient to justify a conclusion adverse to the appellant, the latter, the State protection finding, was independently dispositive of the appellant’s entire claim in the circumstances:  Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487;  SZBOT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 411;  Applicant VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018.

30                  I do not consider that the reasons betray the misunderstanding alleged.

31                  The ground relied upon in the Notice of Appeal is rejected.

LEAVE TO AMEND

32                  As I noted at the outset, the circumstances in which the question of leave is raised are unusual.  They relate to the significance to be attributed to publication in the United States in early 2005 of a law journal article jointly authored by the Tribunal member and another person which argued that, in certain circumstances, State-sanctioned torture was morally justifiable.  It will be necessary to refer below to the burden of that article, a copy of which has been put in evidence for the purpose of the leave application. 

33                  The appellant was not aware of the existence of this article at the time of the Tribunal hearing (which pre-dated its publication) or of the Federal Magistrate’s decision (which was given at about the time of publication).  It is not, in consequence, a case of evidence not being called before the Federal Magistrate which was then accessible to the appellant. 

34                  The appellant’s purpose in relying upon that article is not to enhance further the basis of his claims to refugee status.  Rather it is to impugn both the Tribunal hearing itself (on grounds of apprehended bias) and the Tribunal member’s understanding of the term “persecution” for the purposes of the Convention and of the Migration Act.

35                  So far as the principles governing the grant of leave are concerned, all I need note for present purposes are:

(i)         leave to argue a new ground of appeal should only be granted if it is expedient in the interests of justice to do so:  O’Brien v Komesaroff (1982) 150 CLR 310 at 319;  and

(ii)        in considering whether it is so in the interests of justice, it is necessary to give some consideration to the merits of the grounds proposed to determine whether they have a reasonable prospect of success:  Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22]-[24].

36                  It has not been suggested in this matter that the respondent would be prejudiced by the grant of leave, nor is it said that there is no acceptable explanation for the issue not being previously raised:  cf NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [166].

37                  The respondent opposes leave primarily on the basis that the proposed grounds have no reasonable prospects of success.  A subsidiary basis for opposition – based on comments made in the joint judgment in Re Minister for Immigration and Multicultural Affairs;  Ex parte Epeabaka (2001) 206 CLR 128 at [29] concerning the significance of lapse of time – is to the following effect.  Given the member’s views were published more than a year after the decision in question, it cannot be determined what the member’s views may have been at the time of decision.  This latter contention is not, in my view, of particular consequence.  The article was published in a law journal in a foreign country.  Inevitably that process would have involved delay.  It is equally clear from the structure of the article, the sources relied upon, and the nature of the debate with which it was engaging, that time was spent in its research and writing.  It is improbable that its central thesis was not entertained by the Tribunal member, if only in rudimentary form, at the time when the appellant’s review application was determined.

The article

38                  Given the view I take on the question of leave, it is necessary to refer in a little detail to the burden of the article itself (which runs to thirty-five pages).  There are two comments I should make about it by way of preface.  The first is that the article’s concern is not with torture at large (i.e. the infliction of severe pain, suffering or torment as such).  Rather it is with a particular sub-species of State-sanctioned or officially authorised torture (i.e. the State-sanctioned infliction of bodily pain etc for the purpose of persuading a person to provide information to avert a grave risk of loss of life).  I note in passing that the definitions of “torture” in The Oxford English Dictionary, vol XVIII, 278 (2^nd ed) reflect the above differences to the extent of recognising that torture may or may not be inflicted purposively and with State authority.

39                  The second comment is that the background to the article are the contemporary prevalence of State-sanctioned torture in many countries and its use by States for interrogative purposes. 

40                  The following extracts are sufficient to convey the article’s tone and tenor.

“(i)      [At pp 582-3]  We argue that torture is indeed morally defensible, not just pragmatically desirable.  The harm minimization rationale is used to supplement our argument. 

            While a ‘civilized’ community does not typically condone such conduct this Article contends that torture is morally defensible in certain circumstances, mainly when more grave harm can be avoided by using torture as an interrogation device.  The pejorative connotation associated with torture should be abolished.  A dispassionate analysis of the propriety of torture indicates that it is morally justifiable. 

(ii)        [At p 584]        Ultimately, torture is simply the sharp end of conduct whereby the interests of one agent are sacrificed for the greater good.  As a community, we are willing to accept this principle.  Thus, although differing in degree, torture is no different in nature from conduct that we sanction in other circumstances.  It should be viewed in this light.

            Given this, it is illogical to insist on a blanket prohibition against torture.  Therefore, the debate must turn to the circumstances when torture is morally appropriate.  This is the topic of this Article.

(iii)       [At pp 596-7]  Broadly, there are two types of normative moral theories.  Consequential moral theories claim that an act is right or wrong depending upon its capacity to maximize a particular virtue, such as happiness.  Non-consequential (or deontological) theories claim that the appropriateness of an action is not contingent upon its instrumental ability to produce particular ends, but rather follows from the intrinsic features of the act.  Thus, the notion of absolute (or near absolute) rights, which now dominates moral discourse, is generally thought to sit most comfortably in a non-consequentialist ethic.  This section proves that torture is permissible pursuant to both of these ethical theories.  It is only consequentialist theories, however, that provide a logical framework within which it is possible to demarcate the circumstances in which torture is permissible.

(iv)       [At p 607]        By drawing comparisons with other situations in which we take the utilitarian option, it is contended that practices such as punishing the innocent and torture are not necessarily unacceptable.

            The view that punishing the innocent and torturing individuals is the morally correct action in some circumstances is consistent with and accords with the decisions we as individuals and societies as a whole readily have made and continue to make when faced with extreme and desperate circumstances.  Once we come to grips with the fact that our decisions in extreme situations will be compartmentalized to desperate predicaments, we do, and should, though perhaps somewhat begrudgingly, take the utilitarian option.  In the fact of extreme situations, we are quite ready to accept that one should, or even must, sacrifice oneself or others for the good of the whole. 

            For example, in times of war we not only request our strongest and healthiest to fight to the death for the good of the community, but we often demand that they do so under threat of imprisonment or even death. 

(v)        [At p 611]        The only situation where torture is justifiable is where it is used as an information gathering technique to avert a grave risk.  In such circumstances, there are five variables relevant in determining whether torture is permissible and the degree of torture that is appropriate.  The variables are (1) the number of lives at risk;  (2) the immediacy of the harm;  (3) the availability of other means to acquire the information;  (4) the level of wrongdoing of the agent;  and (5) the likelihood that the agent actually does possess the relevant information.  Where (1), (2), (4) and (5) rate highly and (3) is low, all forms of harm may be inflicted on the agent – even if this results in death.

(vi)       [At p 612]        Torture violates the right to physical integrity, which is so important that it is only a threat to the right to life that can justify interference with it.  Thus, torture should be confined to situations where the right to life is imperiled.

(vii)      [At p 615]        The slippery slope argument in the context of torture holds that while torture might be justified in the extreme cases, legalizing it in these circumstances will invariably lead to torture in other less desperate situations.

            This argument is not sound in the context of torture. First, the floodgates are already open – torture is widely used, despite the absolute legal prohibition against it.  It is, in fact, arguable that it is the existence of an unrealistic absolute ban on torture that has driven torture “beneath the radar screen of accountability” and that the legalization of torture in very rare circumstances would, in fact, reduce the instances of torture because of the increased level of accountability.

            Second, there is no evidence to suggest that the lawful violation of fundamental human interests will necessarily lead to a violation of fundamental rights where the pre-conditions for the activity are clearly delineated and controlled. 

(viii)     [At p 616]        Conclusion

            The absolute prohibition against torture is morally unsound and pragmatically unworkable.  There is a need for measured discussion regarding the merits of torture as an information gathering device.  This would result in the legal use of torture in circumstances where there are a large number of lives at risk in the immediate future and there is no other means of alleviating the threat.  While none of the recent high profile cases of torture appear to satisfy these criteria, it is likely that circumstances will arise in the future where torture is legitimate and desirable.  A legal framework should be established to properly accommodate these situations.”

Should leave be granted?

41                  The appellant’s written submissions in support of the proposed new ground of appeal are:

(a)        that when one considers published views of the Tribunal member that torture may be licit in some circumstances, it must necessarily follow that there is a reasonable apprehension that the Tribunal, in interpreting and applying the definition of a refugee, which necessarily involves consideration of “persecution”, may be biased in the sense of having a mind wrongly open to the possibility that a person may suffer significant injury and yet not be a refugee, because in the mind of the Tribunal member that injury either is not serious harm, or is lawfully inflicted;  and

(b)        the published views of the Tribunal member indicate that because he considers some forms of torture may in some circumstances be licit, he must be taken to have a different notion of persecution from that required by the law.

42                  The respondent, as I have noted, has contended that the new ground proposed has no reasonable prospects of success.  That is my own view. 

43                  First, reasonably apprehended bias.  The test of whether the Tribunal member was disqualified from hearing the appellant’s application for review on this basis is not in issue between the parties.  Both are content for present purposes to rely upon that of Deane J in Webb v R (1994) 181 CLR 41 at 67-68.  It is:

“whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts ‘might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question’ in issue.”

Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be “firmly established”:  R v Commonwealth Conciliation and Arbitration Commission;  Ex parte Angliss Group (1969) 122 CLR 546, at 553.  In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely “a sense of unease or a feeling that conventions of discretion and prudence have been breached”:  Re Minister for Immigration & Multicultural Affairs;  Ex parte Epeabaka, at [90].  What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant’s case because of “preconceptions existing independently of the case”:  Re JRL;  Ex parte CJL (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition:  Ex parte Epeabaka, at [21].  I will for convenience refer to this as “issue bias”. 

44                  It is unnecessary here to enlarge at any length upon the rationale and purpose of the rule against bias as it applies to officers and agencies of public government.  I need only note that, as with some number of other rules, it serves within its province to maintain public trust and confidence in our officials and agencies by imposing a standard of official conduct aimed at securing disinterested, impartial and unprejudiced official decision-making.  In so doing it imposes constraints and limitations on the freedoms and privileges of an official to which he or she would not be subject as of course as a private citizen.

45                  Turning to the present matter, I do not accept that the article in question was capable of firmly establishing the reasonable apprehension contended for.  As I earlier noted, its concern was limited and particular.  It dealt with State-sanctioned torture for interrogative purposes with the object of averting likely loss of life.  It did not advocate more generally torture in its multifarious possible forms.  And while it advocated the legalizing of torture within a narrow province, it acknowledged that the infliction of torture beyond that province would continue to involve “a violation of fundamental rights”.

46                  The argument so put is doubtless apt to engender a hostile response.  The subject of torture, understandably, touches deeply the belief system of many members of the community and, hardly for some (particularly amongst holders of protection visas), their own experience.  The present case, though, is not about the acceptability or otherwise of the argument propounded.  Neither is it about the issue of the general suitability of the Tribunal member to be appointed to, or to continue to discharge, the function of a Tribunal member given that despite their confined scope, his expressed views nonetheless are related to the more general subject of torture which arises regularly in Tribunal proceedings.  In my view the publication was imprudent and indiscrete for a person occupying the member’s position on the Tribunal.  But that, as I have noted, is not enough to make out issue bias. 

47                  For the bias rule to avail the appellant there must be such a connection between the views expressed in the article and the issues determined by the Tribunal member in the appellant’s case as to firmly establish the possibility of an operative preformed judgment in the determination of those issues.  I do not consider there to be such a connection.  The particular sub-species of torture with which the article was concerned was not in issue in the appellant’s case.  There is nothing in the article to suggest that the authors condoned the infliction of torture beyond the discrete area that they would wish to privilege.  They continue to accept that torture beyond that area would involve a violation of fundamental rights.  Accordingly, while expressing the views contained in the article may itself engender a sense of unease in the fair minded observer, the article is not capable in my view of satisfying the bias test.  The member is not to be disqualified, absent some proper connection between the article and the issues determined by the Tribunal, simply because the burden of the article is likely to attract criticism and condemnation.  The rule curtails freedom of speech, but only measuredly so for its own purposes.

48                  Secondly, a different notion “of persecution” from that required by law.  The appellant’s contention here involves little more than a re-packaging of the issue bias submission.  There is, moreover, nothing to indicate that the views of the member expressed in the article, are reflected in some demonstrable error of the Tribunal in interpreting or applying the definition of “refugee” in this matter.  The article was not relevant to the interpretation and application of the definition given the case before the Tribunal.

49                  Accordingly, I refuse leave to amend the Notice of Appeal.

CONCLUSIONS

50                  I order that the appeal be dismissed, that leave not be granted to amend the Notice of Appeal and that the appellant pay the respondent’s costs of the appeal and of the application for leave to amend. 

Associate:        

Dated:              20 July 2006