FEDERAL COURT OF AUSTRALIA

MZXLD v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2007] FCA 1912

APPREHENDED BIAS – whether Federal Magistrate applied the correct standard of proof to determine an allegation of apprehended bias by the Refugee Review Tribunal

Federal Court of Australia Act 1976 (Cth) ss 25(1AA), 28(1)(a) and (b)

Federal Court Rules 1979 (Cth)Order 62 Rule 4(2)(c)

Judiciary Act 1901 (Cth) s 39B  

Migration Act 1958 (Cth)

Allesch v Maunz (2000) 203 CLR 172 cited

Chey v Minister for Immigration and Citizenship [2007] FCA 871cited

Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606cited

Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 applied

M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 cited

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

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 cited

NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 cited

Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 cited

Phillips v Commissioner for Superannuation [2005] FCAFC 2 cited

Rana v Australian Federal Police [2006] FCAFC 169cited

Re JRL: Ex parte CJL (1986) 161 CLR 342 cited

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

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

Servos v Repatriation Commission (1995) 56 FCR 377 cited

STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546cited

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 cited

Waterford v The Commonwealth (1987) 163 CLR 54 cited

MZXLD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 781 OF 2007

GORDON J

6 DECEMBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The parties file and serve submissions (if any) on the question of costs on or before 13 December 2007.

3.         The respondent to serve a copy of the reasons for decision and this order on Sky Legal on or before 7 December 2007. 

4.         On or before 13 December 2007, Sky Legal file and serve any material upon which it relies as to why costs in the sum of $2,000 should not be paid personally by Sky Legal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant is a citizen of Sri Lanka. 

2                     His claim for a protection (class XA) visa under the Migration Act 1958 (Cth) (“the Act”) was refused by a delegate of the first respondent on 29 August 2002.  [AB 72] The appellant applied for review of the delegate’s decision by the second respondent (“the RRT”).  The RRT affirmed the delegate’s decision on 24 May 2006 and issued certified reasons for its decision on 6 June 2007.  The date of the decision of the RRT and the preparation of the draft of the decision by the RRT form the basis of the issues in this appeal.

3                     An application for review of that decision was dismissed by a Federal Magistrate on 3 August 2007 (“the FMC decision”).  The appellant appeals from that decision.  The appellate jurisdiction of the Court is exercised by a single judge: s 25(1AA) Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).

4                     The Amended Notice of Appeal contained one ground of appeal:  that the Federal Magistrate erred in not finding that the RRT committed a “jurisdictional error” in that the decision of the RRT was affected by apprehended bias. 

5                     The notice of appeal seeks an order that the decision made by the Federal Magistrate be set aside, the decision of the RRT be set aside and that “[a] writ of Certiorari issue directed to the [RRT] to quash its decision and the application be remitted to the [RRT] for further consideration according to law” (para [3]).

PRELIMINARY MATTERS

6                     The appellant seeks prerogative relief of the kind issued in the exercise of the Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1901 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision).  This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the FCA.  The appeal is in the nature of a rehearing and not an appeal in the strict sense:  Minister for Immigration and Multicultural Affairs v Jia (2001) CLR 507.  The question on appeal is whether the FMC decision is affected by some legal, factual or other error:  Allesch v Maunz (2000) 203 CLR 172 at [23].  Section 28(1)(a) and (b) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the FMC decision be set aside and the proceeding remitted to the RRT for further determination. 

7                     For reasons outlined below, I am not satisfied that the FMC decision is affected by any error, whether as alleged or at all.

BACKGROUND

8                     The appellant contends that the Federal Magistrate erred in not finding that the RRT committed a jurisdictional error on the grounds that decision of the RRT was affected by apprehended bias.  The claim of apprehended bias relates to the coincidence between the receipt by the RRT of final submissions from the appellant on the same day as the RRT completed its reasons.  To understand the manner in which the Federal Magistrate dealt with this question, it is necessary to record what transpired before the FMC.

9                     During the course of the hearing before the Federal Magistrate on 21 March 2007, the appellant’s legal representative sought to adduce evidence that was said to substantiate the appellant’s claim of apprehended bias: see [2007] FMCA 1267 at [5].  A claim of apprehended bias was included by late amendment in an amended application filed on 28 March 2007:  see [2007] FMCA 1267 at [2] and [4].  McInnis FM did not permit the appellant to adduce evidence.  After considering the authorities (see [2007] FMCA 1267 at [26]-[28]) his Honour concluded:

“... I am not satisfied that it is appropriate to permit new evidence to be adduced.  I accept that the “new evidence” is not identified in the submissions by the [appellant], and in any event I am satisfied that where there is a claim for apprehended bias, it is not appropriate for this court to permit new evidence to be adduced. 

I cannot see any or any proper basis upon which this court, undertaking judicial review, should permit the [appellant] to adduce new evidence.  The court is able to deal with the current grounds set out in the amended application without the assistance of new evidence.  It is relevant to note that the chronology of events, including the date of delivery of the [RRT] decision and the time when it received a response to the s 424A request, are not matters in dispute.  Accordingly, no evidence is required of those matters.

The court likewise is able to deal with the second ground now relied upon in the amended application without any requirement for new or additional evidence.   …”

10                  The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities:  see Waterford v The Commonwealth (1987) 163 CLR 54 at 77–78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29]-[31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J).  The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application.  The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.   

11                  Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ).  A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15]-[16] (per Weinberg J). 

12                  The FMC was entitled, as it did, to conclude that the further evidence was not required to answer that question.  The appellant’s request that he be permitted to bring new evidence was not particularised and no attempt was made by him to explain how the additional material might be relevant to the allegation of apprehended bias (see [2007] FMCA 1267 at para [23]).  This matter was not pursued on appeal before me.

13                  As I have noted earlier, the basis for the appellant’s claim for apprehended bias was the coincidence between the receipt of final submissions and giving by the RRT of its reasons on the same day.  The chronology of events was undisputed.  However, the chronology is not limited to just that day.  It is necessary to consider the history of the matter before the RRT.

14                  First, on 30 November 2005, the appellant applied for review of the delegate’s decision by the RRT.  On 15 December 2005, the RRT wrote to the appellant inviting him to attend a hearing on 1 February 2006.  At the hearing on 1 February 2006, the appellant submitted various documents.  The hearing was not completed on that day.  On 6 February 2006, the RRT invited the appellant to attend the resumed hearing on 28 March 2006.  On 17 February 2006, the RRT advised the appellant that the hearing would resume on 27 March 2006 and on 24 March 2006, the RRT advised the appellant that the hearing would resume on 10 April 2006.

15                  The appellant attended the resumed hearing on 10 April 2006 and submitted further documents.  On 10 May 2006, the RRT wrote to the appellant setting out a variety of information which, subject to any comments the appellant might make, would be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa (“the s 424A letter”).  The s 424 letter set a deadline for comments of 24 May 2006.

16                  The appellant’s authorised representative responded to the s 424A letter by facsimile sent around 11.30 am on 24 May 2006 (“the s 424A response letter”).  Later the same day, 24 May 2006, the RRT affirmed the delegate’s decision.  The RRT’s reasons for decision refer, in at least 4 places, to the s 424A response letter.

17                  On 25 May 2006, the RRT received a further copy of the s 424A response letter from the appellant’s authorised representative attaching a number of additional internet reports.  The RRT reviewed the material but decided not to recall the decision on the grounds that the “information provided has previously been submitted to the [RRT]”.  Although this statement was not entirely accurate, the appellant makes no complaint about this aspect of the RRT’s decision making process.

18                  Finally, the appellant was subsequently informed that the RRT had made its decision and was invited to attend the handing down of the decision by the RRT on 6 June 2006.  The decision comprised 50 pages. 

19                  It is against that background, that the appellant’s ground of appeal comes to be considered. 

APPREHENDED BIAS

20                  In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms:

“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public.  There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.

Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done.  To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account.  In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.”

See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49]-[50]; Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL (1986) 161 CLR 342. 

21                  It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet” (Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (per Weinberg J)). 

ANALYSIS

22                  The appellant may have had a sense of unease that his s 424A response letter was not properly considered because it was received by the RRT on the same day as the RRT’s decision and that the decision was accordingly predetermined.  However, more than a sense of disquiet is required to make good a claim of apprehended bias.  Even a reasonable apprehension of bias must be “firmly established”: Forge. 

23                  There is no basis, let alone a firm basis, to make good a claim of apprehended bias on the part of the RRT.  The appellant’s submissions are based upon a misconception of the RRT and its processes. 

24                  First, as the history of the proceedings before the RRT demonstrates (see [14] to [18] above), the RRT heard the appellant’s application for review of the delegate’s decision over two days.  Secondly, at the conclusion of that hearing, the RRT prepared a detailed s 424 letter.  A s 424A letter is not produced in a vacuum.  So much is made clear by the express words of s 424A(1) of the Act.  It provides, so far as is relevant:

(1)        Subject to subsections (2A) and (3), the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)                invite the applicant to comment on or respond to it.

25                  As the respondent submitted, s 424A of the Act provides that the information provided to an applicant be of a particular kind – “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”:  see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [p15].  Production of a letter satisfying that provision necessarily involves the RRT identifying particular information, assessing or reviewing the information so identified and then determining whether or not the information is of the kind described.  But that is not the end of the process.  Having completed those tasks, the s 424A letter must go on and explain:

(1)        why the information is relevant to the review; and

(2)        the consequences of the RRT relying on it in affirming the decision under review.

26                  Three additional points are to be noted in this context.  First, if s 424A is engaged, it is mandatory:  SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [78], [173] and [208].  Secondly, s 424A forms part of Div 4 of Pt 7 of the Act.  Section 422B provides that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters the RRT deals with.  Section 422B(3) goes on to provide that the RRT must act in a way that is fair and just. 

27                  In other words, the process by which the RRT ascertains whether s 424A is engaged necessarily involves those steps (individually and collectively) described earlier.  And those steps necessarily require the RRT to have formed at least a preliminary view of the decision under review and the “information that the [RRT] considers would be the reason, or a part of the reason, for affirming the decision that is under review.”  The formal process by which the RRT undertakes that task (whether by the preparation of draft reasons for decision or otherwise) is irrelevant.  What is important is that the tasks identified in [25] above are undertaken by the RRT before the s 424A letter is prepared and sent. 

28                  Once the process and the role of s 424A is understood, the appellant’s complaint that the RRT apparently prepared draft reasons prior to receipt of the s 424A response letter falls away.

29                  Finally, the appellant has not demonstrated that the Federal Magistrate applied the wrong standard of proof in assessing his claim of apprehended bias.  McInnis FM considered that the RRT had prepared very detailed reasons and included a response to the appellant’s further submissions in its reasoning: see [2007] FMCA 1267 at 61.  It is clear that McInnis FM applied the perspective of the “reasonable bystander” or “hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings” in reaching his conclusions as made clear by paras [62]-[65]:

“I can see nothing wrong with the Tribunal preparing a draft of its reasons in advance in circumstances where there have been two hearings and a significant volume of documents.  In fact the Tribunal preparing a draft in those circumstances, in my view, is acting in a reasonable and acceptable manner.  It is not unusual for Tribunals and courts to prepare a draft of reasons and then to receive either written or oral submissions prior to the delivery of a judgment or reasons for decision.

….

I am further satisfied that the manner in which the Tribunal dealt with the response to the s 424A letter does not reveal any denial of procedural fairness.  In fact I have concluded that quite the contrary appears in the circumstances of this case where the Tribunal, having given the Applicant an opportunity on two occasions to attend a hearing and adduce evidence and having received other material together with the response to the s 424A letter, has acted in a manner consistent with the principles of procedural fairness.”

There is no error demonstrated by showing only that a Court has made a decision with which a litigant disagrees.  The appellant must demonstrate that the Federal Magistrate failed to apply the correct principle.  He does not.  No error is revealed in the reasons of the FMC.

CONCLUSION

30                  No error is identified.  I would dismiss the appeal.  I direct the parties to file and serve submissions (if any) on the question of costs on or before 13 December 2007.  At the hearing, the Respondent’s solicitor indicated that the Respondent sought to recover costs of the adjourned hearing on 7 November 2007, fixed in the sum of $2,000, from the Appellant’s former solicitors.  I direct that a copy of these reasons for decision and the orders be served on Sky Legal.  I direct that, on or before 13 December 2007, Sky Legal file and serve any material upon which it relies as to why costs in the sum of $2,000 should not be paid personally by Sky Legal.

Associate:

Dated:         6 December 2007