'C' v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT THE COURT 1 The appellant is dissatisfied with the decision of the Refugee Review Tribunal which refused to set aside the decision of a delegate of the respondent that the appellant was not entitled to a protection visa under the Migration Act 1958 (Cth). The appellant's dissatisfaction arises not only because he failed in his application before the Tribunal but also because he is of opinion that the member who constituted the Tribunal was not impartial. During the hearing, the appellant informed the Tribunal that he believed that it was "hostile, unable to make an unbiased decision for me" and that he had "no confidence on this Tribunal, that it can make an unbiased decision". That the appellant was provoked into making these comments by the manner in which the Tribunal conducted itself cannot be doubted. This is a matter of great concern. Administrative decision-makers must carry out their functions in such a fashion that the public can be confident that there has been a genuine attempt to arrive at the correct decision, and also that those whose rights, interests and expectations might be affected by a decision, are treated fairly. If this requires the decision-maker to act with restraint, that is no bad thing. Be that as it may, an administrative decision-maker does not commit any error of law rendering his or her decision liable to be set aside merely because he or she does not conduct himself or herself in an appropriate manner. But it is another thing altogether if, by his or her conduct, the decision-maker demonstrates that he or she is guilty of bias. Then, of course, his or her decision will not be left to stand. The question here is whether this is such a case. 2 The principles to be applied in determining whether a decision-maker is biased are not in dispute, nor were they before the trial judge. To show that a decision-maker is actually biased (which is what is required by s 476(1)(f)) it must be "firmly established" that the decision-maker has brought a "closed mind" to the inquiry: Vakauta v Kelly (1989) 167 CLR 568 at 576. Bias need not be wilful: R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167. It can be inferred from conduct, but in that case the whole of the decision-maker's conduct must be taken into account: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71. 3 To understand how the issue arises in this case it is necessary to recite the facts, although not in great detail. We take them from the reasons of the trial judge. The appellant is from Bangladesh. Since his student days he has been actively involved in the political affairs of his country. In particular he has been a long-standing opponent of the Awami League, the party that presently has control of the Government of Bangladesh. In the early 1980s the appellant was involved in street demonstrations and picketing and he made many anti-government speeches. In consequence he was arrested on a number of occasions and physically mistreated. In 1985 he graduated from university and began work as a journalist. At the time the Awami League was in opposition. In mid-1995 it became apparent that the Awami League would come to power at the next election. Accordingly the appellant decided to move to Singapore to work as a journalist. Although based in Singapore, over the next few years he visited many countries, including Australia. In December 1996 the World Trade Organisation met in Singapore. Ministers from Bangladesh were in attendance. The appellant, in the presence of other journalists, accused one of the ministers, who was a member of the Awami League party, of disseminating false information about his government and its policies. The appellant was invited to meet the minister in private where he was urged to stop criticising the government. He says that the minister threatened him with "severe action" on his return to Bangladesh if he continued to criticise the government. The appellant came to Australia in 1997 on a business visa which expired on 26 March 1998. He commenced a relationship with a woman from Bangladesh which came to an end in December 1998. Shortly thereafter the appellant was taken into immigration detention and while in detention he applied for a protection visa. A protection visa is granted to a person who is a refugee in accordance with the well-known definition in the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees: see s 36(2). 4 The delegate of the Minister who considered the application was not satisfied that the appellant was a refugee, as defined. Accordingly he refused to grant him a protection visa. The appellant lodged his application to review the decision of the delegate on 9 February 1999. The application could not be disposed of "on the papers" (see s 360) and accordingly there was a hearing during which the Tribunal received evidence. The hearing occupied three separate days, 12 March 1999, 4 June 1999 and 23 July 1999. The appellant was the only witness called to give evidence. In addition to the oral evidence, the Tribunal had available documentary evidence submitted by the appellant, documentary evidence obtained by the Tribunal and submissions made by Mr Jeans, the solicitor who appeared for the appellant. 5 The hearing before the Tribunal took the following form. The appellant was not examined by his solicitor. Presumably this was because the appellant had provided what he regarded as a sufficiently detailed written statement setting out the material upon which he relied to establish that he was a refugee. The appellant was sworn and, with the assistance of an interpreter, answered questions that were put to him by the Tribunal member. 6 On the first day the questions were directed to elicit additional information concerning the appellant's claim that he had a well-founded fear of persecution if required to return to Bangladesh. For example, he was asked questions about his previous political activities, his meeting with the Minister in Singapore, and related matters. He was also asked to explain why he had not made an application for a protection visa, either in Australia or in any other country, before he was placed in immigration detention. The Tribunal made it clear that what it regarded as a delay in making the application for a protection visa would be taken into account in assessing whether the appellant's claim for refugee status was genuine. The appellant gave a number of explanations for the delay, the principal explanation being that he had no need to apply for a protection visa until he had been placed into detention. 7 During the first day's hearing the Tribunal expressed interest in the appellant's passport, which he did not have with him. The Tribunal member said he wished to see the passport to satisfy himself that the appellant had not travelled to Bangladesh after his meeting with the Minister in Singapore. The appellant advised the Tribunal that his former girlfriend had his passport. When the hearing for the day concluded the Tribunal member said: "Okay, well, we'll be in contact with [your former girlfriend] and we'll attempt to recover your passport for you, [Mr C], and you'll get an opportunity to - after I've seen whether I can get that, you'll get an opportunity to put anything further to me. You'll also get an opportunity to respond to some material that I'll send you." 8 Before the resumption of the hearing on 3 June, Amnesty International sent a submission to the Tribunal in support of the appellant's claim. The submission outlined the "present human rights situation in Bangladesh" and the author, Mr Hogan, advised the Tribunal that "Amnesty International considers that if [the appellant] were returned to Bangladesh he may be at risk of harm from localised political violence". The Tribunal member referred to this submission early on the second day of the hearing. He said: "I think it's an extraordinary use of Amnesty's reputation and their time, money and energy. It cannot possibly carry any weight whatsoever." And later: "Mr Hogan seems to be making a habit of it and I've got to say, Mr Jeans, as I say, I find it exceptional. It does nothing for Amnesty's reputation as far as I'm concerned." And later again: "As I say, it won't be encouraging me to buy a badge." 9 Having said that he would not pay regard to the material in the Amnesty submission (in clear breach of duty), the Tribunal member said that there were two outstanding matters of concern. The first was that the appellant had been away from Bangladesh for a number of years and the issue was whether, upon his return to Bangladesh he would be of any interest to anybody. The second matter was that the Tribunal had still not obtained the appellant's passport. The Tribunal then invited the appellant to further explain why he had delayed in applying for a protection visa. The Tribunal member also asked the appellant questions about the whereabouts of his passport. When dealing with the lateness of the application the Tribunal member said: "What I'm saying about the delay is that the lateness of the application does raise a question as to the credibility of the application." He also said: "The issue of credibility is exceptionally important because the essence of the case sits upon evidence that he has given, nothing else". When the appellant completed his evidence, which did not take up much time, the Tribunal member said that he would give consideration to the evidence over the weekend and also to whether he proposed to call the former girlfriend, presumably to discover the whereabouts of the appellant's passport. 10 A number of relevant events occurred between 4 June and 23 July. The order in which they occurred is not disclosed by the evidence. First, the appellant's solicitor obtained a copy of the transcript of the second day's hearing and provided it to Amnesty International. That organisation took objection to the criticisms made by the Tribunal concerning its role in the application. Amnesty International wrote to the acting principal member of the Tribunal voicing its "grave concern" about the member's "hostility to any submission made by Amnesty International in respect to individual cases". It made the obvious comment (but not so obvious to the Tribunal member) that its submissions were intended to assist the Tribunal in reaching a decision and if the Tribunal acted in the way the member said it would, it would be to the detriment of many asylum seekers. Second, the Tribunal discovered from departmental files that, while in immigration detention, the appellant had applied for a bridging visa and only made application for a protection visa on the day he was notified that he would not be granted a bridging visa. Finally, the appellant's solicitor filed a six page written submission in the nature of a final speech. 11 The appellant's case is that by 23 July the Tribunal had made up its mind that the appellant did not hold a fear of persecution for the reason that he had made a late application for a protection visa. The case was that as the Tribunal had equate the existence of a genuine fear of return to an immediate need for a protection visa, its assumption had closed its mind to the appellant's explanation for delay. The hearing on the third day was occupied substantially with questions concerning the timing of the protection visa application. The appellant says that for all practical purposes the Tribunal was not prepared to accept any explanation that he might put forward to explain the delay. 12 It cannot be denied that the Tribunal had formed opinions about the merits of the appellant's claims. Two passages from the transcript of the proceedings on the third day make this clear. The Tribunal member said: "It seems to me that if you, [Mr C], had a genuine fear of persecution you would have done something about it. I am not satisfied that you have got a genuine fear of persecution, because it seems to me that this application was only made at one minute to midnight, at the very latest possible moment, that you had many opportunities to make the application. Your reasons for making the application are not credible to me, and I'm not at this stage satisfied that you've got a genuine fear of persecution. This is not an argument whether some people get persecuted in Bangladesh, this is a matter where I'm not satisfied that you've actually got a genuine fear of persecution. That's the issue we need to address." A little later the Tribunal said: "But [Mr C], I don't believe that you fear you're going to be persecuted yourself." 13 The appellant says that there is other evidence from which it can be inferred that the Tribunal had by then "closed" its mind to the appellant's case. In particular the appellant relies upon the subject matter of the questions put on that day, they being devoted entirely to the issue of delay as well as the bullying and, at times, offensive manner, in which the questions were asked. 14 At trial the main ground for alleging bias was the letter from Amnesty International. It was submitted that the Tribunal's response to this letter was that the appellant would not be granted a protection visa regardless of the merits of his claim. The trial judge was not prepared to accept that this or any other aspect of the proceeding established actual bias. He said that what occurred at the interview of 23 July did not show that the Tribunal was not prepared to accept anything the appellant may have said about why the visa application was made only in January 1999. He said that "the course of the interviews reveal that the Tribunal either had not appreciated or had rejected the claim that the [appellant] did not want a protection visa until he was faced with what he otherwise believed was an inevitable return to Bangladesh." Even if this view was a result of a flaw in reasoning, it did not demonstrate bias. At most, it showed an erroneous understanding of the claim and the reasons for it. 15 If it is to be assumed, contrary to the findings of the trial judge, that the Tribunal had a "closed mind" before the third day of the hearing, does this amount to relevant bias? We do not think that the answer can be in the affirmative and for the following reasons. At some stage in a case, a decision-maker must form an opinion and make findings on the issue committed for his determination. The decision-maker will then have a "closed mind" for otherwise he or she could not arrive at a decision in the case. The object of having an "open mind" is so the decision-maker will pay regard to, impartially consider, and fairly assess the evidence and submissions made by the parties. In this case the appellant had put forward all of the material upon which he wished to rely before the third hearing. He had also filed his written submissions. Thus, except for one issue, for all practical purposes the task of obtaining and giving consideration to the evidence upon which a decision must be based had come to an end. The only issue that had not been addressed by the appellant was that he had made his application for a protection visa after he had been denied a bridging visa. The third day of hearing was designed to elicit an explanation for this because the Tribunal was plainly of the view that this additional factor tended to confirm that the appellant himself did not believe that he was likely to be persecuted. As it turned out, the questions put to the appellant did not produce an explanation which was different from that previously given. In the result, no new material was put to the Tribunal which, if the Tribunal had kept an "open mind", may have influenced it to form a different opinion. Put another way, if it be accepted that the Tribunal had a "closed mind" by the time of the third interview, the fact is that there was no evidence or other material put forward which an "open mind" would have considered. Hence, in our opinion, the Tribunal's "closed mind" had no operative effect. 16 That being said, we are not in any event persuaded that the Tribunal had a "closed mind" in the relevant sense. By this we mean that although the Tribunal had expressed its views on the merits of the application in forceful language, even language indicating that the Tribunal had concluded views on the matter, it is by no means evident that the Tribunal was not open to persuasion if the appellant had come up with, what in the Tribunal's opinion was, a truthful and compelling explanation of the delay. And in the end, that is what the appellant must show: Johnson v Johnson [2000] HCA 48. In this regard he has not satisfied us that the trial judge was in error. For example, in the passage that we have cited from the transcript of the proceeding, the Tribunal explicitly stated that it was not at that stage satisfied that the appellant had a good claim for refugee status but the Tribunal made it clear that it was still willing to consider the issue. There is no reason to think that the Tribunal was indulging in legerdemain. 17 In the result, the appeal on the principal finding of the trial judge must be dismissed. However we do not think that it was appropriate for an order for costs to be made against the appellant. Nor do we think that the respondent should have his costs of the appeal. Having closely read the transcript of the proceeding it is easy to understand why the appellant felt that he was not given a fair hearing. Here we are not only referring to the aggressive manner in which the Tribunal member conducted the examination. He was unnecessarily and, if we may say so, unpardonably rude and offensive as well. It is hard to see why the respondent should have his costs in a case where the appellant was provoked by the Tribunal to saying: "Enough of Australia, sir. This is not a country to give me protection." 18 We would allow the appeal in part and set aside the costs order made below. In lieu thereof we would order that each party bear his own costs of the proceeding below. We would otherwise dismiss the appeal with no order as to costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.