Applicant VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Proceedings for review of the Tribunal's decision 12 For the present application to succeed it must be shown that the decision of the Tribunal is not protected by the "privative clause" embodied in s 474(1) of the Migration Act 1958 (Cth) ("the Act"). The effect of that sub-section has been authoritatively explained by a five member Full Court of this Court in NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228 ("NAAV"). A decision will be protected from review provided that the conditions set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 are satisfied. Those conditions were stated by Kitto J in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-253 as being that the administrative act in question; "is a bona fide attempt to exercise the power [conferred by statute], it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) ..." [citations omitted]. A fourth "Hickman condition", is that a privative clause will not protect failures to comply with "imperative duties" or acts that exceed "inviolable limitations or restraints" under the relevant legislation or the Constitution; NAAV at [14] and following (per Black CJ); at [59] (per Beaumont J); at [355] and [361]-[362] per (Wilcox J); at [446] and [492]-[499] (per French J); and at [619]-[626] (per von Doussa J). 13 Mr Krohn of Counsel for the applicant made three broad submissions on the application of the Hickman conditions to the present case. The first was that there had been actual bias on the part of the Tribunal, and that actual bias affecting the motives of a Tribunal member in making his decision is sufficient to preclude this Court from finding that there has been a bona fide attempt to exercise the power. This, it was submitted, compels the conclusion that the Tribunal had failed to comply with the first of the Hickman conditions. 14 The applicant's second submission was that a finding of apprehended or unconscious bias can prevent an administrative decision from being referable to the power granted, thus infringing the second Hickman condition. To this submission Mr Horan of Counsel for the respondent replied that a line of cases following NAAV has made it clear that the effect of s 474(1) is to preclude any review of a Tribunal decision for apprehended bias. I was referred to NAEB v Minister for Immigration and Multicultural Affairs [2002] FCA 1092 where Moore J said, at [22]; "It seems to me that the reasoning of the majority [in NAAV] is apt to apply to a situation where it is contended that there is an apprehension of bias concerning the decision maker. It can either be said that s 474 excluded the rules of natural justice (using that expression to comprehend both the requirement to provide a fair hearing in a procedural sense and conduct a hearing in manner that creates the impression of impartiality, assuming, for present purposes, that such a distinction has any substance) or that the section renders a decision immune from challenge where the decision maker in substance dealt with the matter even if, in doing so, gave the appearance of partiality. In my opinion, it is not open to an applicant, because of s 474, to successfully impugn a decision of the Tribunal on the basis of apprehended bias." 15 I respectfully agree with his Honour's conclusion, and, as a result, am able to confine any further consideration to the allegation of actual bias. 16 The applicant's third submission was that the Tribunal's decision was so unreasonable that no reasonable tribunal could have made it, thereby attracting the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and that as a result the Tribunal's decision was made without jurisdiction. 17 Formal submissions were also made on behalf of the applicant that NAAV has been wrongly decided, with the consequence that the recent cases in which it has been applied are all also infected by error. It was, however, accepted that I am bound in the present case to follow NAAV. In this context, an argument was raised, that s 36(2) of the Act imposes an obligation on the Minister which is antecedent to the operation of the privative clause. That obligation, it was said, required the Minister and then the Tribunal in reviewing the Minister's decision to determine as an anterior question, whether the applicant is a refugee as defined in the 1951 Convention Relating to the Status of Refugees and is then a person to whom Australia owes protection obligations. That determination, it was said, had to precede consideration of whether a protection visa should be granted. If this submission were accepted determination of the suggested anterior question would not be protected by the privative clause and could be reviewed for the kind of jurisdictional error described in Craig v South Australia (1995) 184 CLR 163. It is enough to dispose of this submission to point out that the judgment of the Full Court in NAAV (per Black CJ at [30]; and von Doussa J at [635]-[638], with whom Beaumont J agreed) and NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 bind me to conclude that a Craig jurisdictional error is rendered immune from review by s 474(1). Further, it was held in NAAV that the Act contains a hierarchy of provisions which has the effect that any apparently inconsistent provisions are to be construed as subject to the operation of the privative clause. To regard s 36(2) as requiring resolution of an anterior question would take that sub-section outside the operation of s 474(1) and thereby disregard the hierarchy which the Full Court in NAAV has discussed; see at [535]-[536] per von Doussa J, with whom Black CJ and Beaumont J agreed on that issue. 18 As I see it, the applicant could only succeed on this point if it were found that, by failing to perform the administrative exercise described in s 36(2), the Minister and the Tribunal had ignored an imperative duty or transgressed an inviolable limitation. The applicant's argument, in effect, was that the section might be susceptible to the kind of analysis undertaken by Black CJ in NAAV of s 116(1)(f) at [30]-[33] where his Honour found that an inviolable limitation is exceeded if a legal question, which had to be answered under the Act as part of the decision-making process has been answered wrongly. This same argument, that whether an applicant meets the definition in the 1951 Convention Relating to the Status of Refugees is such a legal question and the need to answer that question, constitutes an inviolable limitation, was put to Heerey J in VDAA v Minister for Immigration and Multicultural Affairs [2002] FCA 1071. In that case, his Honour observed, at [24] and [27]-[28]; "… … the Refugees Convention establishes no particular procedural process for the purpose of determining whether any individual is in fact entitled to refugee status. Contracting States may establish whatever procedures they see fit for the purpose of such determinations and those procedures in fact vary widely: Simsek v Macphee (1982) 148 CLR 636 at 643; Fernando v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 91 at [32]-[37], [53], [55]… In any event, the judgments of the majority in NAAV make it clear that "jurisdictional" or "structural" or "inviolable" factors or elements are matters which arise at the initiation or activation of the decision-making process; see per von Doussa J at [625]. Likewise Black CJ (at [37]), in relation to the Wang appeal, thought that the particular area of decision-making had to be "enlivened", and "enlivened only by a notice having a particular quality". By contrast, the decision which the Tribunal made as to the non-satisfaction as to the applicant's answering the definition of refugee came at the end of the process. The Tribunal had embarked on this task lawfully. It was empowered by the Act to do so. Section 474 has the effect that the way it went about its task is protected from judicial review." 19 I respectfully agree with these conclusions, which are similar to those reached by the Full Court of this Court in NAGT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 319.

Actual Bias 20 The test of whether a Tribunal member has been affected by actual bias was considered by a Full Court of this Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 where Burchett J (at 126-127) made these observations; "Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. ... In my opinion …[the words] "actual bias", substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. ... The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach ... A notable feature of the Tribunal's reasons is the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds. Some of these conclusions involve the rejection of evidence which Mr Fordham had accepted after rigorous, even sceptical, oral examination of the appellant. ... An unbiased tribunal, although free to re-examine the matter for itself, could have been expected, in the circumstances of this case, to have given some weight to Mr Fordham's acceptance of the appellant. The Tribunal paid no regard to it, while giving great weight to adverse matters that plainly were not conclusive." (original emphasis) 21 In the same case, North J (at 135) referred to the conclusion in Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224 ("Gooliah") at 233-234 that "the Special Inquiry Officer apparently approached the matter with a mind made up" and; "[t]he performance of the Special Inquiry Officer on this matter was not that of one engaged in an objective search for truth. Rather it appeared to be an attempt to find justification or support for a point of view to which, in advance of the relevant testimony, he was already firmly committed." 22 The analysis by the Full Court in Sun makes it clear that a finding of bias will not be sustained merely because this Court regards the Tribunal as having followed a process of logic or reasoning which does not commend itself to the Court. Thus, in the present case, had I been called on to decide for myself whether the applicant's brother had been injured by extremists, I might, in drawing on ordinary human experience, not have regarded the attack as inherently less likely because it was claimed to have been carried out using a truck rather than a gun. Indeed, I might have been inclined to the view that if a threat had been made by extremists, there would be little significance in how it was carried out, as the "message" would have been the same to the audience of hotel operators whom it was intended to intimidate. However, the mere fact that the Court, had it been in the Tribunal's place, might have attached more or less weight to certain matters does not establish that the Tribunal has been wrong-headed in matters of logic, and far less that, in the language of Gooliah, the member "approached the matter with a mind made up". 23 Mr Krohn submitted that where the Tribunal has made a series of assertions that elements of the applicant's account of events are implausible, the cumulative effect might be to "lead a fair-minded and reasonable observer to think that the tribunal might be prejudiced in the matter, [and] then that is sufficient at least to show apprehended bias". Although the possibility of a cumulative effect of that kind may be conceded, I do not consider that the circumstances of this case establish apprehended bias, let alone actual bias. If the decision is to be impugned as coming within the relevant Hickman condition, actual bias, in my view, is necessary to negate a bona fide attempt to exercise the power reposed in the Tribunal. That was apparently the view taken by Mansfield J in SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 where his Honour observed, at [60]; "The matters to which I have referred, in my judgment, are not explicable on the basis contended for by the respondent. The combination of factors to which I have referred, includes the understating or ignoring of the claims of harassment and discrimination when the Tribunal must have been aware of them, its attribution of inherent unlikelihood to events which on the contrary in my view are inherently likely, and its assertion that the legal system in Iran could not condone the wrongful conviction of a Sabian Mandean accused of assaulting a Muslim woman (and one who was the wife of a prominent local official) flying in the face of the country information it recorded. I consider, upon careful reflection, that the Tribunal embarked upon its review with a mind fixed upon rejecting the claims. Even if the Tribunal accidentally overlooked the more specific claims of harassment and discrimination made by the applicants both personally and through their migration agent, that indicates to me a degree of capriciousness in addressing the review which, together with the other factors I have mentioned, points firmly towards it failing to endeavour in good faith to review the delegate's decision. Its doubtful fact finding does not simply indicate possible legal or factual error. In my view it indicates in the circumstances a failure to attempt in good faith to undertake the review of the delegate's decision with which it was charged under the Act. Whether that is because it had a view that Sabian Mandeans in Iran are generally not persecuted in Iran for reasons of their religion, or for some other reason, it is not necessary to explore. But the applicants were entitled to their claims being addressed by the Tribunal without the Tribunal's mind being foreclosed against them. The conclusion I have reached, for the reasons given, is that this is one matter where the Tribunal did not undertake its task in good faith, but with a mind closed to acceptance of the claims." 24 However, as already indicated, I have not been able to conclude that the Tribunal in the present case embarked upon its review with a mind fixed on rejecting the applicant's claims or foreclosed against those claims. Whether the applicant's claims were inherently likely or unlikely was not self-obvious but was a question on which reasonable minds might differ. The present Tribunal's approach to its task of fact-finding and the logic which it employed do not indicate to me a degree of capriciousness inconsistent with an attempt in good faith to discharge that task. 25 Nor does the fact that a succession of suggestions made in the course of questioning by the Tribunal and repeated in the Tribunal's ultimate findings of fact expose that the Tribunal member entered upon the hearing with predetermined views. As Wilcox J observed in Sun (at 122); "… it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested; "as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory". This includes questions designed to elicit information or submissions. Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions. The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view." 26 That observation applies with equal force to questions directed to an applicant by a Tribunal entrusted with an administrative function. It is desirable that administrative decision-makers, when receiving oral evidence, put to witnesses any matters that are of concern to them so that the witnesses have a chance to address those concerns. To keep misgivings or suspicions locked in the breast of the Tribunal member to be revealed only on publication of his or her findings would work a much greater unfairness than that imputed to the Tribunal in this case. A court will not be justified in inferring actual bias merely because tentative views have been put with some vigour in an attempt to test the evidence of a witness. I am not persuaded that the questioning undertaken by the Tribunal member in this case indicated that she approached the matter with a mind made up or unwilling to be persuaded. Nor do I consider that the Tribunal exhibited in its reasons for decision, what Burchett J in Sun called "the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds." The Tribunal referred to a number of reports from several government sources all of which provided "country information" to the effect that violence in the Punjab had either ended or had greatly diminished by 1997. That information assumed considerable importance in the Tribunal's reasoning. Counsel for the applicant pointed out that various new reports had been placed before the Tribunal indicating that significant violence in the Punjab had continued after 1997. However, that does not indicate that evidence favourable to the applicant was disregarded on merely colourable grounds. The Tribunal appears simply to have preferred "country information" which emanated from official sources. In my view, the evidence falls a long way short of establishing, to the standard exemplified by Sun, that the Tribunal came to the hearing with a closed mind and engaged in a merely colourable exercise of independent fact-finding and reasoning. 27 It was submitted that, in expressing disbelief at almost every step of the sequence of events for which the applicant had contended, the Tribunal had effectively made a finding of fraudulent concoction of a story, including an attempt by the applicant to gain an improper advantage by misrepresenting the cause of his brother's injuries. It is true that the Tribunal found that the applicant's version of events had been "fabricated" and that he was not a credible witness. However, as I observed in Mousoof v Minister for Immigration and Multicultural Affairs [2000] FCA 1522 at [15]; "… … … the errors which the applicant imputes to it [the Tribunal] are all constituted by its declining to make findings of fact which he contends should have been made. The RRT took that course after forming its own view of the credibility of the applicant and the likelihood, as a matter of logic or human experience, of the applicant's assertions being true. Those were all intrinsically aspects of the fact-finding function reposed in the RRT by the Act." 28 In the present case the Tribunal declined to accept the applicant's claims which it regarded as implausible in the light of its own logic or human experience. For the Court to revisit that issue would be an impermissible usurpation of the fact-finding function reposed in the Tribunal. 29 For the sake of completeness, it should be recorded that Mr Horan, Counsel for the respondent, contended that, although actual bias might, in some cases, deprive a decision-maker's actions of the bona fides necessary to preserve the operation of a privative clause on the proper application of the Hickman principle, not every case of actual bias would necessarily do so. I was referred in particular to the judgment of Tamberlin J in NAML v Minister for Immigration and Multicultural Affairs [2002] FCA 1190, where his Honour suggested that an element of fault or even dishonesty is required to make out that the first Hickman condition has not been satisfied in a given case. As I have already indicated, I do not believe that the evidence in the present case establishes any actual bias, let alone actual dishonesty, on the part of the Tribunal member. As a consequence, it is unnecessary further to consider this submission.

Wednesbury Unreasonableness 30 Mr Krohn for the applicant contended that the basis on which the Tribunal regarded the applicant's account as implausible was not simply one that would not commend itself to the Court, but was so unreasonable that it would not be adopted by any reasonable Tribunal. He pointed to the same matters which had been relied on in support of the claim of actual bias. I am equally unpersuaded that this same impugned conduct makes out a case of Wednesbury unreasonableness. Even if this conclusion be wrong, it is difficult to see how Wednesbury unreasonableness can be invoked to exclude the operation of the privative clause by application of any of the Hickman conditions. It was held in NAAV that s 474 excludes review of a decision of the Tribunal for lack of procedural fairness which I take to comprehend concepts like Wednesbury unreasonableness. Since an objective test like that for apprehended bias is insufficient to deprive an administrative decision of the protection, it follows, in my view, that a similar objective test like that erected in Wednesbury, even if capable of application on the facts, cannot operate to bring a case within one of the Hickman conditions. The relevant Hickman condition requires an actual lack of bona fides, and I consider that unreasonableness alone will not satisfy that requirement. 31 It was also submitted on behalf of the applicant that demonstrated unreasonableness could infringe the third Hickman condition, that the Tribunal's attempts to exercise its statutory power would not be reasonably capable of being referred to the power. That conclusion by no means necessarily follows from the premise. The third Hickman condition focuses on whether the act complained of, (here a decision to refuse a visa), is reasonably referable to the power conferred on the Tribunal by the Act. It is manifestly within the power committed by Parliament to the Tribunal to refuse a visa, and the act of refusal is thus an exercise of power protected by the privative clause. In this respect, I refer to the authorities canvassed by Beaumont J in NAAV at [98]-[102], and in particular the following passage from the judgment of a Full Court of this Court in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, at [90]; "In the application of these principles to the present case, it is necessary to ascertain whether the error of the Full Bench, although jurisdictional, led to the making of an award of the type that s150 would not protect … There is here no question of constitutional invalidity. Nor is there any suggestion that the decision of the majority, resulting in the Full Bench's award, was not a bona fide attempt to exercise the powers conferred on the Full Bench of the Commission by s45. The award clearly relates to the subject matter of the legislation. The only basis on which counsel suggested s150 would not protect the Full Bench's award was that its making was not reasonably capable of reference to the power conferred by s45. However, while the majority of the Full Bench misunderstood or overlooked the differences between the Commission's relevant powers, and thereby fell into jurisdictional error in exercising the Full Bench's powers under s45(7), the actual exercise of power is capable of reference to the powers conferred on a Full Bench. It involves, on its face, an exercise of the power conferred by s45(7): see The King v Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598 at 617. Thus s150 operates to protect the award from prerogative relief." 32 For the reasons which I have endeavoured to explain, each of the applicant's attacks on the decision of the Tribunal has failed. In some respects the failure of those attacks has been ordained by the operation given to s 474 of the Act by the majority of the Full Court in NAAV. I was therefore invited by Counsel for the applicants to defer giving judgment in this matter until the outcome was known of applications for special leave to appeal to the High Court in three of the five matters considered by the Full Court of this Court in NAAV. However, I consider, with respect, that the appropriate response to Counsel's invitation is that given by Sackville J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 at [67]; "Mr Reilly invited me to defer judgment until the outcome of the High Court challenge to the validity of s 474(1) is known. In my opinion, that is not the appropriate course. The law applicable to the present case is that laid down by the Full Court in NAAV. The applicant, if she wishes to preserve her position in the event of a favourable High Court decision, may do so by filing a notice of appeal." 33 His Honour was there referring, I assume, to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134/2002 in which the High Court reserved its judgment on 4 September 2002. 34 Accordingly, the present applications must be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Erskine Rodan & Associates