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[2018] FCA 1683
Federal Court of Australia
2018-11-08
Flick J
Original judgment source is linked above.
THE APPLICATION FOR THE RECONSTITUTION OF THE COURT? 109 At the conclusion of the hearing on 25 May 2018, leave was granted to the parties to file further submissions directed to a number of issues that had arisen. 110 Supplementary Submissions were filed on behalf of the Appellant in excess of the page limit for which leave had been given. Three paragraphs of those submissions addressed the questions that had arisen at the hearing. The balance of those submissions made an application that the Court should be reconstituted. 111 Notwithstanding both the fact that Counsel for the Appellant during the course of his oral submissions expressly declined to make such an application and the fact that the application now made falls outside the ambit of the leave granted, the application has been made and should be resolved. Left to one side is whether an election had already been made not to pursue such a course during the hearing itself. 112 The application is founded in large part upon two exchanges between the Bench and Counsel for the Appellant, namely: an exchange in which Counsel had already referred the Court to SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, (2015) 229 FCR 317, Shrestha v Migration Review Tribunal [2015] FCAFC 87, (2015) 229 FCR 301 and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, (2018) 353 ALR 641. Counsel then proceeded to refer to "your Honour's own decision" in further support of the same proposition, being the decision in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 ("CPF15"). That prompted the response from the Bench: "[y]ou must be getting desperate … [t]o cite my own decisions"; and an exchange in which Counsel for the Appellant was identifying the names of persons who had unsuccessfully applied for refugee status. That was then referred to as a "criminal offence". There immediately followed: "what I'm more concerned about at present is, as I understand it, and I just would have to check or get your assistance on, I thought there was a provision in the Migration Act which said that there should not be an identification of the names of parties to proceedings", which was a reference to the names of asylum seekers. Concern was expressed as to "what's on the court file". Reference was also made in the Supplementary Submissions to issues that arose in the case management of another case before the Court as it is presently constituted. That case raises similar issues to the present appeal and Counsel for the Appellant is also involved in that case. Those submissions included reference to: a case management hearing where a referral was made to pro bono Senior Counsel to assist both Junior Counsel who has remained in the case and the Court in respect to whether an allegation of actual bias was to be maintained against the same Federal Circuit Court Judge whose decision was there under appeal; and the time within which an Amended Notice of Appeal and an Amended Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) were to be filed and served. Eight weeks was sought by Junior Counsel; four weeks was granted. 113 It is to be recalled that in Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352, Mason J (as his Honour then was) said that "[i]t needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". Mason J there went on to say: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. The existence of a reasonably apprehension of bias is to be tested by reference to a "fair-minded lay observer" (Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [31], (2011) 244 CLR 427 at 437 per Gummow ACJ, Hayne, Crennan and Bell JJ) and not by reference to the "perhaps individual and certainly motivated views of the particular litigant who has made the allegation of bias": Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72 at [10], [2010] 1 NZLR 35 at 46 per Blanchard J. 114 Although with the benefit of hindsight, the comment in respect to CPF15 was (at least in the circumstances of the present case) better not made, it is respectfully concluded that the comment would occasion no concern to a reasonable observer. Of itself, the exchange would not have occasioned any concern to a reasonable observer. Only the more so is that the case when the comment was immediately followed - after concern was expressed by Counsel - by the statement that it was "certainly not … any criticism of you, Mr Silva". The exchange with respect to the identification of refugee applicants could equally have been better expressed. But, again, a reasonable observer would form no conclusion other than that a Judge of this Court was expressing concern to ensure that Counsel avoided the inadvertent disclosure of the identity of persons whom the legislature has considered should not be disclosed: see para [32]. 115 The exchange with respect to the appointment of pro bono Counsel would also be viewed by the reasonable observer as the Court taking all steps available to it to ensure that any argument as to actual bias was properly considered by a member of the Inner Bar and to ensure that the case for the individual Appellant was being presented in the best manner possible. A direction that four weeks be permitted to serve an Amended Notice of Appeal and any further Notice of a Constitutional Matter, with respect, was more than adequate. 116 A further concern raised in the Supplementary Submissions focussed attention upon: an assessment made by Counsel that the Court had not "read" submissions which had been filed before the hearing commenced. Whether that assessment on the part of Counsel was correct is not to the point. What is of relevance is the objective assessment or perception of the reasonable observer. Given the consideration that has been given to the written submissions which have been filed, and the submissions as developed during the course of the oral hearing, it is considered that a reasonable observer would only form the conclusion that Counsel for the Appellant was given a more than reasonable opportunity to present his case. The submission also, with respect, fails to take into account the very reason why judgments are reserved. Reserving a decision for further consideration permits a Judge to subsequently review the written submissions which have been made and to do so with the benefit of both further time and the transcript of the oral submissions. 117 The application that the Court be reconstituted is rejected.
CONCLUSIONS 118 The argument central to the Appellant's case, and the one to which primary attention was directed, was the argument that the primary Judge exhibited actual bias. That argument has been rejected. It should, with respect, not have been advanced. There was no "fall-back" position seeking to contend (for example) that the primary Judge exhibited an apprehension of bias. In the absence of any submissions being directed to such an argument, it need not be further considered. 119 The argument as to the failure on the part of the primary Judge to adequately explain the basis upon which he proceeded and decided the case has prevailed. That argument was found in Grounds 2, 4 and 5. There was, however, an overlap with other Grounds of Appeal. 120 The remaining arguments have been briefly addressed. The argument alleging an apprehension of bias on the part of the Tribunal has been rejected. 121 The application that the Court be reconstituted has also been rejected. 122 Counsel for the Respondent Minister submitted that, if the actual bias ground was not successful, the First Respondent should not be ordered to pay those costs. There was some indication that the costs incurred by Counsel for the Appellant in preparing that ground would likely be large. It has also been found that the allegation of actual bias was not appropriately made. However, while the bulk of the hearing was occupied by the unsuccessful actual bias ground, the Appellant has nonetheless been successful on the appeal. In the circumstances, it is appropriate that there be no order as to costs. It is also appropriate that there be no order disturbing the costs order made by the Federal Circuit Court.
THE ORDERS OF THE COURT ARE:
BDS17
Minister for Immigration and Border Protection
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189, (2002) 6 VR 1 Hocking v Medical Board of Australia [2014] ACTSC 48, (2014) 287 FLR 54 IMM v The Queen [2016] HCA 14, (2016) 257 CLR 300 Macks v Viscariello [2017] SASCFC 172, (2017) 130 SASR 1 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 111 ALD 15 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356, (2016) 246 FCR 111 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264 NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 R v Gale [2012] NSWCCA 174, (2012) 217 A Crim R 487 R v MR [2013] NSWCCA 236 Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, (2003) 216 CLR 212 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 Shrestha v Migration Review Tribunal [2015] FCAFC 87, (2015) 229 FCR 301 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470, (2009) 181 FCR 113 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, (2015) 229 FCR 317 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, (2003) 131 FCR 102 White v Johnston [2015] NSWCA 18, (2015) 87 NSWLR 779
REASONS FOR JUDGMENT 1 The Appellant in the present proceeding, identified by the pseudonym BDS17, arrived in Australia as an unauthorised maritime arrival in April 2013. 2 He is a citizen of Sri Lanka who claims to fear harm if he is returned to Sri Lanka as a result of (inter alia) an altercation during a 2010 election campaign and persecution by criminal groups. 3 In August 2013, the Appellant applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. A delegate of what was by then the Minister for Immigration and Border Protection refused that application in January 2015. BDS17 then sought review of the delegate's decision by the Refugee Review Tribunal. What was by then the Administrative Appeals Tribunal (the "Tribunal") affirmed the delegate's decision in February 2017. 4 In March 2017, an application was filed in the Federal Circuit Court of Australia seeking judicial review of the Tribunal's decision. That Court heard the application on 13 November 2017 and on the same day delivered ex tempore reasons dismissing the application: BDS17 v Minister for Immigration and Border Protection [2017] FCCA 2757. 5 A Notice of Appeal was filed in this Court on 29 November 2017 and an Amended Notice of Appeal was filed on 20 December 2017. Omitting for present purposes the Particulars provided in respect to each Ground of Appeal, those Grounds as set forth in the Amended Notice of Appeal were expressed (without alteration) as follows: (1) His Honour the learned primary judge's decision should be set aside for actual bias on the part of the Judge. Substantive Grounds (2) His Honour the learned primary Judge erred in failing to hold under Ground 1 that the Tribunal (a) failed to take a relevant consideration (b) failed to exercise jurisdiction (c) failed to give proper, genuine and realistic consideration (3) His Honour the learned primary Judge erred under Ground 2 by failing to find that the Tribunal failed to inquire with the Mannar Police and/or Mannar Magistrates Court Registry or the Document Examination Unit of the Department or with the applicant's former lawyer about the genuineness of documents vital to the applicant's case (4) His Honour erred under Ground 3 by failing to hold that the Tribunal made jurisdictional error in that it was (a) not open for the Tribunal to impliedly find that the documents were fraudulent and/or (b) not open for it to give no weight (5) His Honour erred under Ground 5 by failing to find that the Tribunal made jurisdictional error in that it made exaggerated adverse credibility findings which were not open (6) His Honour erred under Ground 6 by failing to find that The Tribunal made jurisdictional error in that the Tribunal caused apprehension of bias by its hostility to the applicant (7) His Honour erred under Ground 8 by failing to find that The Tribunal made jurisdictional error in that it misapprehended the applicant's evidence and made adverse credibility findings based on that misapprehension These Grounds of Appeal are, amongst other reasons, noticeable for contending that the primary Judge's decisions should be set aside by reason of actual bias on the part of the primary Judge. Such an allegation is rare. 6 In addition to filing the Amended Notice of Appeal, Counsel on behalf of BDS17 has filed a Notice of Intention to Adduce Coincidence Evidence. That notice was given under s 98(1) of the Evidence Act 1995 (Cth). 7 Written submissions have been filed by both parties. After the close of hearing, further submissions were filed by the Appellant - including a submission that the Court should be reconstituted. 8 Ground 1, being the allegation of actual bias against the primary Judge, is rejected. A number of Grounds, namely Grounds 2, 4, 5 and 7, overlap and raise a common contention that the primary Judge failed to explain the basis upon which he proceeded and failed to properly consider the submissions then being advanced. That argument has prevailed. Ground 3, being the allegation that the Tribunal failed to make reasonable inquiries, is rejected. Ground 6, confined as it is to an allegation founded upon an alleged "hostility" on the part of the Tribunal is also rejected. Ground 7 was not pressed. The application for reconstitution of the Court is rejected. 9 The appeal should thus be allowed in part.
Actual bias - a grave & exceptional allegation 13 A finding of actual bias is a "grave and exceptional matter": NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361. In the context of entertaining a submission that the Refugee Review Tribunal had demonstrated actual bias, Emmett J there observed: [16] A finding of actual bias is a grave and exceptional matter. The accusation of such bias must be firmly established. It cannot be sufficient to establish actual bias to invite a court to find that it would have come to a different decision from the decision-maker. Even factual error or faulty reasoning, notwithstanding that the factual error might be serious or the reasoning might be totally illogical, is not of itself sufficient to lead to a finding of actual bias … The more so is this the case when the allegation is made, not against a statutory tribunal, but against a Chapter III judge, such as the primary Judge in the present proceeding. 14 Unlike decision-makers who may be members of the Executive or statutory tribunal members, higher standards are justifiably imposed upon the judiciary. Judges, unlike administrative decision-makers, serve a fundamentally different role. These differences were adverted to in part by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 539. In contrasting the position of a Minister and that of a judicial officer, their Honours there concluded: [102] … As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. 15 The test for actual bias is "stringent" and the onus cast on the Appellant of proving actual bias is a "heavy one": Hocking v Medical Board of Australia [2014] ACTSC 48 at [174] to [175], (2014) 287 FLR 54 at 84 per Murrell CJ.
Coincidence evidence - s 98 of the Evidence Act 16 "Coincidence evidence" is not admissible unless such evidence falls within s 98 of the Evidence Act. 17 Section 98 provides as follows: The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. 18 "Coincidence evidence" is defined in the Dictionary to the Evidence Act as "evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection". "Coincidence evidence" invites a "particular form of probabilistic reasoning designed to establish a particular fact or state of mind": R v MR [2013] NSWCCA 236 at [61] per Beech-Jones J, Hoeben CJ at CL agreeing. 19 In explaining the comparable provision found in the Evidence Act 1995 (NSW), Simpson J in R v Gale [2012] NSWCCA 174, (2012) 217 A Crim R 487 at 494 observed: [25] At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is: • two or more events occurred; and • there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and • having regard to those similarities, it is improbable that the two events occurred coincidentally; • therefore the person in question did a particular act or had a particular state of mind. Her Honour continued (at 495 to 496): [30] The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are: • that there is evidence capable of establishing the occurrence of two or more events; and • that there is evidence capable of establishing similarities in the two or more events; or • that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred; • that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred. [31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows: • the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove; • the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind"; • the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events; • the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement); • the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value"; McClellan CJ at CL and Fullerton J agreed with Simpson J. 20 In order for evidence to be "coincidence evidence" it is not sufficient that it is relevant; the party seeking to adduce the evidence must give notice (s 98(1)(a)) and the evidence must have "significant probative value" (s 98(1)(b)). The "probative value" of evidence is defined in the Dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The impact of the adjective "significant" in the phrase "significant probative value" has been considered by the High Court in IMM v The Queen [2016] HCA 14, (2016) 257 CLR 300 at 313 to 314 in the similar legislative context of s 97(1)(b) of the Evidence (National Uniform Legislation) Act (NT) (which relates to "tendency evidence"). French CJ, Kiefel, Bell and Keane JJ there said: [44] The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the inquiry is whether the probative value of the evidence may be regarded as "significant". … [46] Cross on Evidence [(10th Aust ed, LexisNexis, 2015) at 763] suggests … that a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding. These observations apply with equal force to s 98(1)(b): cf. A2 v The Queen [2018] NSWCCA 174 at [1032] per Hoeben CJ at CL, Ward JA and Adams J. 21 Relevant to an assessment as to whether evidence has a "significant probative value" is whether there is an alternative explanation for the coincidence: DSJ v The Queen [2012] NSWCCA 9, (2012) 84 NSWLR 758. Whealy JA there observed (at 775 to 776): The contested interpretations of s 98 [78] In this appeal the Crown has conceded that, in performing the task under s 98, a trial judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value. [79] In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole. [80] Secondly, the trial judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt. [81] The Crown, in making its concession, however, stressed that at no stage in this process was the trial judge required or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities of any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained. In expressing his agreement with these observations, Bathurst CJ set out the terms of s 98 and the definition of "probative value" found in the Act and continued (at 760 to 761): [4] I have set out the relevant provisions of the Act because the issues raised in the appeal depend upon the application of its requirements. [5] There are a number of matters that should be noted about s 98(1). [6] First, its provisions will only fall for consideration if the evidence in question is relevant. That is in terms of s 55 of the Act it could rationally affect the probability of the existence of a fact in issue. [7] Second, it requires the court to form a view, "think", that the evidence had significant probative value, that is, that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. [8] Third, it follows from the use of the word could in the definition of significant probative value that what the court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence. [9] Fourth, the matters to which the court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the court's task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value. [10] However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury. (Citations omitted.) 22 President Allsop, as his Honour then was, also agreed with Whealy JA. McClellan CJ at CL and McCallum J also agreed with Whealy JA 23 The requirement that evidence have significant probative value "makes it necessary to identify with some precision what the tendering party proposes to establish by the evidence": White v Johnston [2015] NSWCA 18 at [139], (2015) 87 NSWLR 779 at 808 to 809 per Leeming JA
Coincidence evidence - the evidence identified 24 The object of seeking to adduce the contested "coincidence evidence" was to establish that the primary Judge had "a particular state of mind" - namely a mind actuated by actual bias such that the Appellant's case was not resolved by reference to the legal and factual merits presented. 25 The submission was variously expressed as the oral submissions advanced by Counsel on behalf of the Appellant unfolded. 26 The evidence sought to be admitted as coincidence evidence was to be found in a number of affidavits. Those affidavits included two affidavits of Mr Anthony Silva (Counsel appearing for the Appellant), namely affidavits identified as: ANS-1M, which (inter alia) maintained that an analysis of the cases decided in November 2017 revealed Judge Street as having dismissed all 33 migration applications he dealt with. In all of those 33 cases ex tempore reasons were given. All of the other Judges of that Court in that same month dismissed 111 of the 126 migration cases they dealt with. In September 2017, Judge Street is said to have dismissed all 46 of the migration cases he dealt with and gave ex tempore reasons in 44 of those cases. All of the other Judges are said to have dismissed 92 out of the 96 migration cases in that same month and gave ex tempore reasons in 50 of those cases; and ANS-2M, which annexed a print out of a list of the migration decisions of the Federal Circuit Court for the month of November 2017. The affidavit also annexed copies of the first 10 decisions from that list. The text of the affidavit stated that the deponent would "try to demonstrate that Judge Street makes his decisions in a particular way" and that the "random sample" of ten decisions "will establish that the pattern of decision making emerging from this sample could be applicable to all the 301 decisions" made by the Federal Circuit Court in September and November 2017. The appropriateness of Counsel for a party to give evidence in the same proceeding in which he appears was not self-evident. Whether it is a course condoned by the New South Wales Bar Association was not an issue pursued in the hearing of the appeal. No further mention thus need be made of the issue. Nor is it necessary to consider the difficulties that could well have emerged if Counsel for the Respondent Minister applied to cross-examine the deponent. Who would take objections to any of the questions asked in cross-examination and how any re-examination would take place bedevils the imagination. It is a course, however, to be shunned by reason of the very real prospect of forensic difficulties emerging. 27 When reference is made to ANS-2M, Counsel submitted that 3 out of the 10 sample cases were cases of Judge Street. Within this context, the submission of Counsel for the Appellant was that "[t]he purpose of coincidence evidence is to establish that considering the three cases together it is not a coincidence that in all three cases the same judge decided the case in a particular manner". The "particular manner" was said to be that the primary Judge "decided the cases without basing them on the evidence, written and oral submissions of the parties but based on his own bias". 28 A comparison between those 3 cases and the remaining cases, it was submitted, was said to demonstrate that the manner and structure of the reasons for decision of Judge Street were: very different to that of other Judges; and always the same. It was further submitted that the structure of the reasons for decision of Judge Street was always the same, in that: the reasons provided were brief; the reasons set forth the findings of the Tribunal whose decision was under review; the reasons were expressed by way of general statements of principle; and those general statements did not "link" the reasons to the Tribunal findings. 29 In addition there were three affidavits of an applicant in separate proceedings before Judge Street in the Federal Circuit Court, being affidavits affirmed on 7 January 2018, namely affidavits identified as: SM-1, which annexed (inter alia) a copy of the reasons for decision of the Administrative Appeals Tribunal and the reasons for decision of Judge Street on the application for review of the Tribunal's decision in which that applicant was a party; SM-2, which annexed (inter alia) a copy of the transcript of the proceeding before the Tribunal and the proceeding before Judge Street in which that applicant was a party; and SM-3, which annexed (inter alia) a copy of the decision of the delegate which was the subject matter of the proceeding before the Tribunal and before Judge Street in which that applicant was a party. 30 In addition there were a further two affidavits of another applicant in a separate proceeding before Judge Street in the Federal Circuit Court, being affidavits affirmed on 16 January 2018, namely affidavits identified as: KM-1, which annexed (inter alia) a copy of the reasons for decision of the Administrative Appeals Tribunal and the reasons for decision of Judge Street in the application for review of the Tribunal's decision in which that applicant was a party; and KM-2, which annexed a copy of the transcript of the proceedings before the Tribunal and Judge Street in which that applicant was a party. It may be noted that that applicant's case was subject to an appeal in which both actual and apprehended bias grounds were raised but rejected by the Full Court: CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65, (2017) 250 FCR 587. 31 There were a further three affidavits of Ms Sylvia Nicholas Silva, who described herself as "the Administrative Assistant to Barrister A.N. Silva", being affidavits affirmed on 6 May 2018, namely affidavits identified as: SS-3M, which annexed an affidavit of the applicant in Federal Circuit Court proceeding number SYG2356 of 2013 before Judge Street. That affidavit was filed in the appeal from the decision of Judge Street in Federal Court proceeding number NSD318 of 2015 and concerned what the deponent "observed, the impression that [he] formed and the state of mind that [he] was in" during the hearing before Judge Street. SS-4M, which annexed the transcript of the hearing before Judge Street in Federal Circuit Court proceeding number SYG2356 of 2013. SS-5M, which annexed an affidavit of Mr Anthony Nicholas Silva who was the solicitor on the record in Federal Circuit Court proceeding number SYG2356 of 2013 before Judge Street. That affidavit was filed in the appeal from the decision of Judge Street, being Federal Court proceeding number NSD318 of 2015 and annexed (inter alia) the pleadings and the submissions in the Federal Circuit Court proceedings. 32 A common element to each of the cases to which transcripts, submissions and copies of the decisions of the Tribunal and Judge Street were sought to be placed in evidence, it may be noted, is that Counsel for the present Appellant (BDS17) was also acting for the migrant parties to those proceedings. A disturbing feature of this evidence was that it identified that names of parties to other proceedings in which care had been taken to ensure their anonymity (see para [114]). 33 Two affidavits of the Appellant in the present proceeding were also read without objection, both of which were affirmed on 19 December 2017. Those affidavits attached the submissions and a transcript of the hearing before the primary Judge.
Coincidence evidence - the rejection of the evidence 34 Other than the affidavits of the Appellant, objection was taken to each of these affidavits by Counsel for the Respondent Minister. 35 It was submitted that the affidavits did not satisfy the requirements of s 98(1)(b) of the Evidence Act. A decision as to whether the affidavits should be admitted was reserved and the parties informed that a decision and reasons for that decision would be given at the same time as the judgment on the appeal. Both parties were content to follow that course and the hearing of the appeal proceeded with submissions being directed both to the admissibility of the affidavits and to their content, assuming that they were otherwise relevant and admissible. 36 For present purposes it may be assumed that the evidence sought to be admitted in the present proceeding demonstrated, with respect to proceedings arising under the Migration Act, both: that the primary Judge frequently dismissed proceedings, and did so more than other Judges of the Federal Circuit Court; and a similarity as to the manner in which the primary Judge both conducted hearings and resolves such proceedings, including a similarity as to the manner in which the Judge's reasons are structured and expressed in terms of general statements of principle. 37 It is nevertheless respectfully concluded that the evidence sought to be admitted does not have "significant probative value" for the purposes of s 98(1)(b) of the Evidence Act. That conclusion has been reached because: the resolution of each case necessarily involves a consideration of the facts and circumstances of particular relevance to that individual case - and the particular facts and circumstances of each of the other two cases sought to be relied upon were not exposed to sufficient scrutiny in this Court such that any conclusion could be reached as to their substantive similarities, if any; even assuming that the facts and circumstances of the two other cases sought to be relied upon are sufficiently similar to those presented before the primary Judge in the present case, the mere fact that a Judge has pursued a comparable course of conduct and reached the same conclusion in each case is not of itself capable of giving rise to an inference of actual bias - of itself, the comparable resolution of two other like cases exposes nothing other than consistency in decision-making; and a like course of conduct and a like conclusion in two other cases falls far short of providing a factual foundation for a conclusion that the primary Judge is so actuated by bias that the same approach will be pursued - and has been pursued in the present case - irrespective of submissions which may be advanced. That is, that fact that the primary Judge took a similar approach and reached a similar conclusion in two other particular cases cannot, without more, rationally affect the assessment of the probability of the existence of a particular state of mind of the primary Judge, and particularly not in a significant way. It is also not without relevance to further note that: many migration cases coming before the Federal Circuit Court - and, indeed, this Court - are unsuccessful. But that fact alone does not expose a failure on the part of individual judges to consider the facts and merits of each case, let alone actual bias on the part of the judges who resolve those cases. Actual bias, it is respectfully considered, is not made out because (inter alia): a common course of decision-making where recourse is made to general statements of legal principle with an absence of reference to the manner in which those principles have specific application to the facts presented for resolution in each particular case does not have "significant probative value" for the purposes of s 98(1)(b) of the Evidence Act. Such evidence as is presented in the current case is not sufficient to establish that the primary Judge was actually biased. Taking it at its highest, the evidence presented going to inadequacy in the exposition of decision-making, including inadequacy in any exploration of the more specific content of a legal principle expressed in general terms and not by reference to the particular legal issue in need of resolution, with respect, is not capable of establishing actual bias. Criticism as to legal reasoning, of itself, is not to be equated with actual bias. 38 If the assessment of the probative value of the evidence sought to be tendered is further tested by reference (for example) to ANS-1M, only further reason to question the probative value of the evidence emerges. There was no analysis (for example) of any of the 33 migration applications which were dismissed by the primary Judge in November 2017 with the giving of ex tempore reasons and there was no analysis of such further matter as: whether some or other of those 33 cases were dismissed because of (for example) a party failing to appear; and/or whether some or other of those 33 cases were dismissed (for example) because they were out of time or because the Federal Circuit Court did not have jurisdiction to entertain the applications; and/or the legal and/or factual difficulty presented by one or other of those cases. Applications in which an impermissible challenge is made to the factual merits of a tribunal or delegate decision (obviously enough) present different issues for resolution than other cases in which the ever-changing statutory provisions found within the Migration Act throw up questions of legal construction which are novel and hitherto untested. If reference is made to ANS-2M as a further litmus test of probative value: little can be gained by an assessment that a particular Judge "makes his decisions in a particular way". Many migration cases, whether before the Federal Circuit Court or this Court, present frequently recurring factual and legal scenarios which readily permit of a Judge oft pursuing a similar course of legal writing and reasoning. 39 If the probative value of the evidence sought to be adduced is further tested by reference to (for example) SM-2, and the transcript of the hearing in that separate proceeding before Judge Street and in which that applicant was represented by Mr Silva, the same conclusion is reached. By way of example, reliance was sought to be placed upon part of the following exchange between Judge Street and Counsel: MR SILVA: That's exactly why we're challenging that, because there's firstly no evidence. Secondly, it's not open. And we are challenging on both grounds, your Honour. HIS HONOUR: When you say there's no evidence … MR SILVA: Yes. HIS HONOUR: … there's the applicant's evidence, which the tribunal rejects. So this is not a no evidence case. To the extent … MR SILVA: Your Honour … HIS HONOUR: It can't be a no evidence case, can it? MR SILVA: Your Honour, there was detailed information about the incident, comprehensive, and the Tribunal rejects ..... says it didn't happen. HIS HONOUR: But, Mr Silva, you know what a no evidence case is. No evidence means that the - a case where there's a finding in respect of which the proposition is advanced there's no evidence. So your submission that there's no evidence is ..... it. When you say that there is a finding that you seek to attack in respect of credibility, I want to understand the basis for it. So to say no evidence can't be right. If you say it wasn't open, why wasn't it open to the Tribunal to reject the applicant's evidence? Counsel then took Judge Street to particular pages of the delegate's decision and the exchange continued: HIS HONOUR: But, Mr Silva, I'm not in a position to make fresh findings of fact. The applicant's evidence was the subject of a credibility challenge clearly identified by the Tribunal in the course of the hearing. So his credibility was raised in respect of this incident, and inconsistencies identified in the transcript that you've tendered, which I've read. MR SILVA: Your Honour … HIS HONOUR: So what the delegate said can't give rise to any error, can it? MR SILVA: Your Honour, is the tribunal a primary decision-maker? No. Tribunal is not the primary - the Tribunal is reviewing the decision of the delegate. HIS HONOUR: No, it's not, Mr Silva. MR SILVA: It is. The exchange continued on a little later as follows: HIS HONOUR: Mr Silva, the proposition that there's a decision of the delegate - I understand that there was a decision. It's what gives rise to the right to a review. But in relation to your ground 1, how does what the delegate said give rise to establishing any error of the kind that you've identified? MR SILVA: Your Honour, before the tribunal, there was evidence in the form of the claims that was made, how the interview was conducted, and the tribunal said it has heard the interview. So all this evidence was before the Tribunal, so it is important for us to know that the tribunal had this before it and the delegate's decision, especially as far as credibility is concerned, it's important. The tribunal could not ignore that. The tribunal is not bound, but it should not ignore, and the delegate has made clear and strong findings in favour of the applicant in terms of credibility. HIS HONOUR: Yes. What else do you wish to say in relation to ground 1? MR SILVA: Your Honour, on that same page - on the next page, your Honour, page 145, fourth paragraph. HIS HONOUR: I can see I am satisfied the events occurred by the delegate. MR SILVA: That's correct, your Honour. And the next one, about the hiding, and you will see at the end - at the end of 145: Based on the detail and spontaneity of the applicant, I am satisfied the events occurred as claimed. And then the next page, 146, second paragraph. So the delegate found applicant to be a truthful person - accepted all the claims that he made. HIS HONOUR: Mr Silva, it starts afresh in the review. What the delegate held, unless there was some sort of denial of procedural fairness, does not assist me making out an undertaking of any of the kind you're alleging in ground 1. MR SILVA: Your Honour, I - with the greatest of respect, I disagree with you. HIS HONOUR: Why? MR SILVA: Because your Honour needs to know how the evidence progressed before the Tribunal, and how the delegate decided is one of the factors. Although the Tribunal is not bound, the Tribunal had it before it, and your Honour needs to be aware of the way the delegate decided. Your Honour cannot say this is not relevant, and I will respectfully disagree if your Honour says that's not relevant. 40 Founded upon this exchange, and other like exchanges, the submission of Counsel in the present proceeding (albeit variously expressed) was that such exchanges manifest Judge Street: "cutting-off" Counsel; not permitting or impeding the adducing of evidence; exhibiting hostility towards the applicant; and/or declining to entertain submissions then being made and revealing a mind closed to persuasion. The exchange, however, manifests the reverse. The exchange, and the other like exchanges this Court was directed to, manifest: exchanges between the Bench and the Bar appropriately testing propositions being put; and rather than "cutting-off" Counsel or a mind resistant to entertaining a submission, the exchanges manifest a willingness (indeed an anxiety) to understand the proposition being advanced and (wither reference to the above exchange by way of example) an anxiety to understand why what was being put was not an impermissible review of findings of fact. 41 It is respectfully concluded that the evidence sought to be admitted as coincidence evidence does not have "significant probative value" and is therefore inadmissible. Even if the coincidence evidence which was sought to be relied upon had been admitted, it is respectfully concluded that it certainly would not have been sufficient to establish any case of actual bias. 42 Although it may be accepted that in the present proceeding Counsel for the Appellant sought to address deficiencies in the evidence that have previously been identified in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, the evidence now before this Court - even if admitted - fell well short of establishing any argument as to actual bias on the part of the primary Judge. In addressing the deficiencies in the "raw statistical material" as presented to the Full Court in ALA15, Allsop CJ, Kenny and Griffiths JJ there observed: [38] … The first is that, for such raw statistical material to be attributed to the hypothetical observer, it normally would need to be accompanied by a relevant analysis of the individual immigration judgments determined by the primary judge in order that the statistics were placed in a proper context. Absent such analysis, the hypothetical observer would not be able to make an informed assessment of the significance of the raw statistics. It may be, for example, that a close analysis of some, many, or all of the relevant judgments reveal that they had been determined on a reasonable and plausible basis. And, even if some or all of the judgments were wrongly decided, that may be the consequence of human frailty on the part of the judge and not prejudgment, a consideration which a fair-minded lay observer would take into account. [39] Secondly, and contrary to the applicant's submission, raw statistics concerning the outcome of immigration matters which have been determined by the primary judge compared with other FCCA judges or the outcome of MRT-RRT decisions generally does not necessarily indicate prejudgment. … [40] Thirdly, there are two additional reasons why the statistics from the Annual Report of the MRT-RRT which are referred to in Mr Kline's affidavit are irrelevant: (a) those statistics relate to the period 2013-2014, which is prior to the primary judge's appointment; and (b) more significantly, those statistics are not confined to the outcome in the FCCA of judicial review proceedings of MRT-RRT decisions, but also included appeal proceedings in this Court and the High Court. Accordingly, they do not provide a valid "control" for statistical purposes. [41] Fourthly, we accept the Minister's submission that the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge. There remained lacking in the present proceeding such analysis of the other decisions of the primary Judge as could found a submission as to actual bias on the part of the primary Judge. 43 The evidence sought to be tendered in the present proceeding as "coincidence evidence" is rejected. The Appellant has failed to establish for the purposes of s 98(1) that any one or other of the other cases decided by the primary Judge have sufficient "similarities in the events or the circumstances" such as would be capable of giving rise to coincidence reasoning. An alternative inference to be drawn from the evidence which "substantially alters" the significance of its capacity to establish the fact is issue was that the result in each particular case was a result driven by the facts and circumstances of each case rather than a commitment on the part of the primary Judge to close his mind to the factual and legal merit of each case that came before him: cf DSJ v The Queen [2012] NSWCCA 9 at [78] to [81], (2012) 84 NSWLR 758 at 775 to 776 per Whealy JA. Given the fact that each of the individual aspects of the evidence sought to be relied upon remains open to an inference that the primary Judge was doing no more than testing the evidence that was before him or attempting to assess the merit of such factual and legal submissions as were under consideration, no finding is open that the evidence sought to be admitted has "significant probative value" going any way to proving actual bias.
The need to explain 56 The general purpose served by a requirement to provide reasons has been summarised as follows by Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, (2003) 216 CLR 212 at 242: [105] … The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others". They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process". (Footnotes omitted.) These statements of general principle apply with only increased vigour when consideration is given to the requirement imposed upon judges to explain the legal and factual basis upon which they have proceeded. 57 President Kirby (as his Honour then was) had also earlier provided the following general outline of the content of adequate reasons in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259: This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issue. Only if this is done can this Court discharge its functions, if an appeal is brought to it. This reasoning was applied by the Full Court of the Supreme Court of South Australia in Macks v Viscariello [2017] SASCFC 172 at [516], (2017) 130 SASR 1 at 107 per Lovell J, Corboy and Slattery AJJ. 58 When considering the content of adequate reasons, Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 observed (at 443 to 444): It follows, that reasons need not necessarily be lengthy or elaborate. … the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance. Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. … In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal. (Citations omitted.) Although these comments were made more in the context of the hearing of contested evidence rather than the more idiosyncratic realm of judicial review of administrative decision-making, the comments of his Honour nevertheless remain a useful touchstone of what to look for in a judicial statement of reasons. 59 Emphasising the importance of reasons to an appellate court, Charles, Buchanan and Chernov JJA in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189, (2002) 6 VR 1 at 31 concluded: The purposes underlying the judicial obligation [100] First, a Court of Appeal must be in a position to determine whether the decision of the trial judge contains appealable error. … Secondly, an adequate statement of the reasons "provides the foundation for the acceptability of the decision by the parties and the public". …Thirdly, it furthers judicial accountability guarding "against the birth of an unconsidered or impulsive decision". Next, the provision of adequate reasons has an educative function in that it "enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future." (Footnotes omitted.)
The primary Judge's failure to explain 71 The fundamental deficiency in the primary Judge's reasons as expressed at paras [34] and [35] of the reasons for decision is that those reasons do no more than repeat matters of general principle without any attempt to tie those expressions of principles back to either: the findings made by the Tribunal; or the submissions being advanced. 72 Both of these paragraphs, for example, make reference to "adverse credibility findings" and both paragraphs rejected the challenge then being made to these findings by reason of the findings being "open" to the Tribunal. That was where the analysis on the part of the primary Judge started and ended. 73 When resolving any challenge to findings of credit made by an administrative decision-maker, it may readily be accepted that a convenient starting point is to acknowledge that findings as to credibility are generally regarded as findings of fact "par excellence": e.g., SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [34], (2009) 181 FCR 113 at 124 per Logan J. But such findings nevertheless remain findings of fact and permit a limited scope of judicial scrutiny. Albeit in a non-exhaustive way, in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496 at 508 to 509, McKerracher, Griffiths and Rangiah JJ observed: [38] There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as: (a) failure to afford procedural fairness; (b) reaching a finding without any logical or probative basis; (c) unreasonableness; and/or (d) jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451. The need for caution when a court is invited on an application for judicial review to scrutinise findings as to credibility springs (in part at least) from the need for such a court to confine its task to that of judicial review as opposed to merits review (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J) but also (in part) from a recognition that for a court to unjustifiably retreat from reviewing findings going to credibility may have the potential to shield an administrative decision from effective judicial scrutiny: cf. SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. Allsop CJ, Kenny and Bromwich JJ in AZU15 v Minister for Immigration and Border Protection [2016] FCAFC 74, (2016) 240 FCR 143 at 145 have thus observed: [11] Care needs to be taken by the Tribunal to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of a visa applicant's claims as required by s 414 of the Migration Act 1958 (Cth). When adverse credit findings of this kind are made, there is a risk that the Tribunal will lose sight of and not discharge its statutorily-mandated task, including by overlooking a material claim or part of a claim that an applicant has made. Credibility will not always be a complete answer to every integer of such a claim. Such matters of general principle may be accepted. 74 In the present case, the deficiency in the reasoning of the primary Judge emerges at a number of different levels of analysis. At one level of analysis, the reasons of the primary Judge: merely repeat the proposition that the "adverse credibility findings made by the Tribunal were open" to the Tribunal either for the reasons given by the Tribunal or by reference to the material before the Tribunal without any apparent consideration being given to whether the diverse adverse credibility findings - or any one or other of them - should be questioned or further scrutinised by the Judge, albeit within the narrow constraints permitted when undertaking judicial review as opposed to merits review. It is only when attention is focussed upon a particular finding of fact said to be "open" to the Tribunal by reason of its adverse assessment as to credibility that: attention can then be directed to that particular finding of fact and the role played by that finding in the reasoning process. Some findings of fact may play little part in the ultimate reasoning processes of the tribunal; other findings of fact may assume a more prominent role and indeed dictate or heavily influence the ultimate conclusion. The deficiency in this part of the reasoning process is only compounded by the fact that the primary Judge: failed to explain or set forth the manner in which generally expressed legal principles (e.g., that findings were "open" on the evidence or that it was "a matter for the Tribunal to determine what weight to give to the documents produced") were applied to any or all of the findings under consideration. Of equal concern is: the failure in the reasoning of the primary Judge to separately address whether different considerations apply to (for example) the findings of the Tribunal that the now-Appellant had "fabricated" claims as opposed to the findings that some evidence was "implausible" or even that the Appellant had "shifted his evidence". Expressed perhaps differently, of concern is: the failure in the reasoning of the primary Judge to identify the "adverse credibility findings" to which reference was being made in paras [34] and [35]. The last deficiency is, with respect, not remedied - as counsel for the Respondent Minister would have it - by reference to the primary Judge's summary of the Tribunal's decision, even if it is accepted that many of the credibility findings made by the Tribunal were there identified: [2017] FCCA 2757 at [8] to [22]. A deficiency in the reasoning process of a Judge entrusted with the task of undertaking judicial review of an administrative decision is neither satisfied by: merely summarising the claims made and the decision-making processes of the Tribunal; nor extracting the Grounds of Review being advanced for resolution and the Particulars provided in support of those Grounds. 75 That which is called for when the legality of an administrative decision is under judicial scrutiny is: an active engagement on the part of a judge at first instance with the arguments and submissions being advanced. There must be what the Full Court has described as a "real engagement" with the arguments or grounds being advanced for resolution: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [25] per Perram, Perry and O'Callaghan JJ. An appellate court should not be called upon to itself discharge the functions properly entrusted to a judge at first instance. 76 That which is called for, moreover, is not: a mere repetition of generally accepted legal principles but, rather, an application of those principles to the findings and reasoning of the Tribunal. A party to litigation is not to be deprived of the opportunity to have his case properly considered at first instance and thereafter (if necessary) to have his case considered on appeal when the judicial task shifts to the determination of whether or not there is appellable error. 77 In reaching these conclusions, it must necessarily be recognised that the reasoning process in judicial decision-making is obviously dependent upon the legal and factual issues under consideration. In some circumstances, there may be little else to be said other than a statement that a finding of fact was open on the evidence. A repetition of competing evidence may give content to why that conclusion has been expressed. In other circumstances, there may be little else than can be said other than that a submission is rejected. 78 The fundamental difficulty in the present appeal is a disturbing lack of any explanation in respect to any particular aspect of the evidence or the findings of the Tribunal. A similar concern could be expressed if a reasoning process was prolonged by a journey through the relevant authorities without any attempt to explain the manner in which that journey was relevant to the conclusions reached. A member of the public, let alone the present Appellant, would have little idea why a particular argument - or a particular aspect of an argument- was rejected. An expression of a conclusion in conjunction with a general statement of a principle or principles of law, falls well short of the standard of reasoning which is required of a judicial officer.
The evidence of hostility 82 The factual basis for the argument that the Tribunal had manifested a reasonable apprehension of bias was founded upon exchanges occurring during the course of the Tribunal hearing between the Tribunal member and BDS17. 83 By way of example, reliance was placed by the Appellant upon the following exchange recorded in the transcript of the proceeding before the Tribunal when a factual question arose in respect to a person ("Sagara") whom the Appellant asserted had an "illegal activity or business and by supporting the government he prevented the police from raiding or the police from arresting him". The exchange relied upon between Ms Moustafine (the Tribunal Member) and the now-Appellant (through an interpreter) was as follows: MS MOUSTAFINE: Sagara was supporting the government, because he had an alcohol ring and so that the police - so he had protection against the police. Is that what you're saying? INTERPRETER: Okay, so not - not a business of actually selling alcohol but actually manufacturing the alcohol. MS MOUSTAFINE: How did you know that? INTERPRETER: Everyone in the village knew that he … MS MOUSTAFINE: Yeah, but how did you know? INTERPRETER: I - I heard. MS MOUSTAFINE: Who did you hear from? INTERPRETER: From my friends. MS MOUSTAFINE: That was why he supported the government party? INTERPRETER: So if you're doing some illegal activity, unless you aligned or a supporter of the government, that's the only way you prevent police investigation or police getting involved in the matter. MS MOUSTAFINE: Okay. How do you know that? Have you been involved in illegal activity, that you know this? INTERPRETER: Can you please repeat the question? MS MOUSTAFINE: How do you know that if you are doing illegal activity unless you are aligned with the government, it is the only way to prevent the police getting involved? How do you know that? Do you know - sorry. INTERPRETER: Okay, so it is quite common knowledge that if you support the government, you can prevent arrest by the police, the police inquiring in to what you're doing. All of that can be prevented. MS MOUSTAFINE: How do you - do you know this from personal experience? Have you been involved in illegal activity to know this? INTERPRETER: No. MS MOUSTAFINE: Again, it's something you heard, is that right? INTERPRETER: Yes. This exchange, as well as the other exchanges the Appellant sought to rely on, with respect, do not exhibit any basis upon which it can be asserted that the Tribunal exhibited a reasonable apprehension of bias. The Tribunal, it is to be recalled, is not in the position of a Court and has a distinct inquisitorial function: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [18], (2009) 111 ALD 15 at 19 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The exchanges only manifest the Tribunal properly exploring with a claimant the factual basis upon which his evidence was being advanced.
The reasoning of the primary Judge 84 The primary Judge rejected the argument as to an apprehension of bias on the part of the Tribunal. His reasons for doing so are cryptic. They were as follows: [36] In relation to Ground 6, Mr Silva made an allegation of bias by the Tribunal. The allegation should not have been made. Allegations of bias must be distinctly made and clearly proved. There was no proper basis to assert from the transcript that the exchanges by the Tribunal seeking to test the applicant's credit when raising the Tribunal's concerns with the applicant gave rise to any proper basis to assert that the Tribunal was acting other than impartially, with an open mind reasonably capable of determining the matter on the merits. [37] The questions in the transcript to which Mr Silva referred are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits. The allegation of bias has not been proved. Ground 6 fails to make out any jurisdictional error. Although the primary Judge's reasons are cryptic, the argument was rightly rejected. 85 The primary Judge was correct to acknowledge that allegations as to bias are to be "distinctly made and clearly proved": cf. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69] and [127], (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J, 546 per Kirby J. Although those observations were made in respect to an allegation of bias against a Minister, the same observations are equally applicable to the position of tribunals such as the Administrative Appeals Tribunal in this case: cf. SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22] per Flick J (Allsop CJ agreeing); MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356 at [53], (2016) 246 FCR 111 at 126 per Moshinsky J. 86 The party alleging a reasonable apprehension of bias carries the onus of proof. That onus must be discharged again recognising the fundamentally different nature of the tasks entrusted to a tribunal and those entrusted to a judge. These differences were summarised by Hayne J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 562 to 563 as follows: [179] Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not "[descend] into the arena and ... have his vision clouded by the dust of the conflict". The central task and, it may be said, the only loyalty, of the judge is to do justice according to law. [180] Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment. (Footnotes omitted.) Similarly, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264 at 269 Allsop J (Moore and Tamberlin JJ agreeing) observed of the Refugee Review Tribunal that [19] … The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. 87 To make out such a case the party must establish that administrative decision-makers have not brought to the resolution of the claims made "fair and unprejudiced minds": R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553 to 554. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ there observed that the requirement was "not infringed by a mere lack of nicety". 88 Where an allegation of a reasonable apprehension of bias is sought to be made out by reference to an argument as to "hostility" on the part of a tribunal member, as is the case in the present proceeding, it is to be recalled that "[o]ccasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias": VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [81], (2003) 131 FCR 102 at 126. Kenny J there cited with approval the following observations of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230: While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator … Even where the conduct of a hearing on the part of a tribunal "might be seen as impatient and somewhat overbearing in parts", there was held to be no denial of a reasonable opportunity to be heard in Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [51], (2014) 141 ALD 433 at 443 per Mortimer J. 89 Notwithstanding the manner in which Ground 6 is drafted in the Amended Notice of Appeal, and the reference there to an apprehension "caused … by [the Tribunal's] hostility to the applicant", the Particulars to that Ground were somewhat confusing. The Ground was understood to be an argument that there was an apprehension of bias on the part of the Tribunal and that the primary Judge erred in failing to so conclude. But the Particulars appear to refer to (inter alia): a failure on the part of the primary Judge to "address the applicant's written or oral arguments in any meaningful way"; and other failings on the part of the primary Judge. How any such failures on the part of the primary Judge, even if accepted, manifest an apprehension of bias on the part of the Tribunal was not explained. 90 The sixth Ground of Appeal as advanced in this Court is rejected.
A failure to inquire - Ground 3 92 The third Grounds of Appeal contends that the primary Judge erred in failing to find that the Tribunal should have made certain inquiries. 93 To the extent that this Ground of Appeal also contends that there has been a failure on the part of the primary Judge "to deal with the written and oral arguments and authorities put forward" - an issue raised in the first Particular to the Ground - the same conclusions as have previously been expressed in respect to Grounds 2, 4 and 5 need not be again repeated. 94 An outstanding aspect of Ground 3, however, is the alleged failure to make inquiries. 95 An initial difficulty that this particular aspect of Ground 3 confronts is that there is no general duty or requirement that administrative decision-makers initiate the making of further inquiries. 96 At least one starting point for any consideration of the existence of any duty or requirement upon the part of an administrative decision-maker to make further inquiries with a view to uncovering further factual material of relevance to the resolution of a claim being made are the following observations of Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 55: The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power. 97 Another starting point is the generally expressed principle that it remains the task of a claimant to put before a decision-maker that material which the claimant contends supports the claim being made. It is no part of the task entrusted to a decision-maker to make out a case for a claimant: Commissioner of Taxation v Glennan [1999] FCA 297 at [82], (1999) 90 FCR 538 at 558 per Hill, Sackville and Hely JJ. In Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, French J (as his Honour then was) made the following observation: [29] Generally speaking when a statute provides for a person to apply to some authority for the grant of a right or privilege the decision-maker is, absent some relevant statutory direction, entitled to rely upon the materials supplied by the applicant as that which is presented in favour of the application. There is no general duty on the decision-maker to seek additional material which may remedy deficiencies in the applicant's presentation … See also: AZZI v Minister for Immigration and Multicultural Affairs [2002] FCA 24 at [102], (2002) 120 FCR 48 at 71 per Allsop J (as his Honour then was). 98 Although these may be the starting points, it is further recognised that in some limited circumstances a decision-maker may be called upon to make further inquiries: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170. Wilcox J there observed: I express no more than a tentative view. … Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to enquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make enquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. More recent decisions, including decisions of the High Court, reinforce the limited circumstances in which a decision-maker may be called upon to make further inquiries: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 111 ALD 15. 99 Whatever may be the outer perimeters within which argument may legitimately be advanced, on the facts of the present case the Appellant contends that the primary Judge erred in failing to find that the Tribunal should have made inquiries of: the Mannar Police and/or Mannar Magistrates Court Registry; or the Document Examination Unit of the Department; or the now-Appellants former lawyer, with a view to assessing the genuineness of documents "vital to the applicant's case". 100 The present argument is rejected because: the obligation primarily rested upon the now-Appellant to place before the Tribunal the documents and other evidence upon which he sought to place reliance; left unexplained is what inquiries had been made by or on behalf of the now-Appellant as to those persons from whom further information could have been obtained and why any requirement to make such inquiries should be shifted from the now-Appellant to the Tribunal; and left unexplained is why the Tribunal should have made inquiries of the now-Appellant's former lawyers - and the difficulties that may well have been encountered with potential claims for legal professional privilege - in circumstances where it was the Appellant who it may be expected should have made those inquiries.
[2014] ACTSC 48
[2017] SASCFC 172
(1990) 170 CLR 1
(2016) 240 FCR 143
(2002) 120 FCR 48
(1997) 48 NSWLR 430
(2017) 250 FCR 587
(1999) 90 FCR 538
(2016) 253 FCR 496
(2018) 353 ALR 641
(2012) 84 NSWLR 758
(2002) 6 VR 1
(2014) 287 FLR 54
(2016) 257 CLR 300
(2017) 130 SASR 1
(2011) 244 CLR 427
(1986) 162 CLR 24
(2001) 205 CLR 507
(2016) 246 FCR 111
(2004) 214 ALR 264
(1985) 6 FCR 155
(1969) 122 CLR 546
(1986) 161 CLR 342
(2000) 177 ALR 225
(2003) 216 CLR 212
(2015) 229 FCR 301
(1987) 10 NSWLR 247
(2009) 181 FCR 113
(2015) 229 FCR 317
(2003) 131 FCR 102
(2015) 87 NSWLR 779
(2015) 233 FCR 451
[2011] HCA 48