Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002

Conclusion on the Appeal 18 An analysis by Mansfield J in SBAU of the principles applicable to a determination whether a decision constitutes a bona fide attempt to exercise a statutory power of review was subsequently approved by a Full Court (Tamberlin, Mansfield and Jacobson JJ) in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. They summarized (at 756) the propositions which emerge from Mansfield J's analysis as follows: '43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] per Heerey J and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 at [25] per Hely J. 44. The fifth proposition is that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [35] per Mansfield J and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. 45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Beaumont J. 46. Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31]. 47. Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32]. 48. Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ('SCAZ').' 19 That summary by the Full Court in SBBS was considered in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, where Heerey and Kiefel JJ said: '7. … We adopt what their Honours said at [43]-[47], but with this qualification to the ninth proposition at [48]. 8. As with other areas of law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty. 9. Questions of professional ethics arise. An allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19], cf Federal Court Rules O 11 r 1B. 10. Bad faith may manifest itself in the form of actual bias. Actual bias in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or predisposition: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71] - [72]. Apprehended bias, resting as it does on what may be observed objectively, as distinct from the actual state of mind of the decision-maker, is quite different. While it has been suggested that actual bias may occur subconsciously, that would not establish bad faith in the relevant sense for the purposes of s 474(1): NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [4], [113]-[115], [638] and [648]. 11. In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s 425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.' 20 In SBAN the Full Court reversed the decision of the trial judge who had found that the Tribunal was actually biased and had concluded that the Tribunal did not exercise its power in good faith. Heerey and Kiefel JJ explained why they allowed the appeal this way: '31. His Honour's conclusion seems not to have been based on the RRT's decision not to delay a decision until signatures to the two statements had been obtained. (As already noted, it is doubtful whether the respondent's solicitors even asked for this.) Rather, his Honour's view was that the RRT had reached a conclusion which was incapable of alteration, even by evidence which, if genuine, was very cogent in the respondent's favour. 32. But the RRT did in fact take the two statements into account. It summarised them in its reasons. It did not ignore them. It did not reject them on the ground that they were unsigned. The RRT was not bound by technicalities, legal forms or rules of evidence: s 420(2)(a). Even so, failure to accept any particular piece of evidence is not an error of law and would not found judicial review, even under the Act as it stood prior to the introduction of s 474. In essence, the RRT reasoned that the fact that a police officer's gun had disappeared when the respondent became involved in a scuffle with police in the course of their enforcing a law of general application could not rationally give rise to a belief that the respondent was assisting an opposition movement, either by providing the gun to them or otherwise. As a matter of law, that was a conclusion the RRT was entitled to come to on the facts, notwithstanding the evidence of AB and the respondent's mother. Even if irrational or against seemingly strong evidence or unsupported by adequate reasoning, such a conclusion was within the RRT's power, as the law now stands. Nor is it an indication of actual bias that the RRT thought that the provision of signatures to statements of witnesses which it had rejected was unlikely to change its views and at the same time was likely to prolong proceedings indefinitely for an asylum seeker in custody. 33. The problem with his Honour's analysis is that it assumes a linear approach in which the RRT reaches an unshakeable conclusion and then rejects the two statements. But a decision-maker is not obliged to deal with material in any particular sequence. It is open to the decision-maker to accept evidence A and then, as a consequence, reject contrary evidence B. Nor is a decision-maker obliged to attach a higher level of importance to one part of a fact-finding process (such as the acceptance of a witness) than to another (such as a finding that an account is inherently unlikely). The RRT might have taken the converse approach. The member might have said that although he thought the loss of gun/imputed political opinion scenario unlikely to the point of absurdity, nevertheless he accepted the unsigned statements of the respondent's mother and AB. But rightly or wrongly the RRT put greater store on its own views as to the inherent unlikelihood of the respondent's claims than to the evidence contained in the two statements. This does not amount to actual bias or bad faith.' 21 These expositions from SBBS and SBAN require careful attention. It should be noted that the first six propositions set out in SBBS emerge from paragraphs in Mansfield J's judgment in SBAU to which the magistrate in the present case did not, in terms, refer. The seventh proposition (which does emerge from one of the paragraphs in SBAU to which the magistrate expressly referred) may be of doubtful assistance. The concept of capriciousness is encountered in the law in circumstances which are concerned with unreasonableness: see, for example, Quinion v Horne [1906] 1 Ch 596 per Farwell J at 602-603; Mills v Cannon Brewery Co Ltd [1920] 2 Ch 38 per P.O. Lawrence J at 44-45. Mason J referred to the lastmentioned case in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 where he had to consider the meaning of a clause providing that approval of a proposed lease 'shall not be capriciously or arbitrarily withheld.' His Honour said (at 609): '… "arbitrarily" connotes "unreasonably" in the sense that what was done was done "without reasonable cause". In these circumstances I doubt whether "capriciously" adds anything, except perhaps to direct attention to the motivation of the respondent.' A motivation may be a conscious or unconscious stimulus for action. The qualification added by Heerey and Kiefel JJ in SBAN to the ninth proposition stated by the Full Court in SBBS is important, and we agree with it. Indeed, it should be extended to the seventh proposition so as to make it clear that want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgment. 22 In the present case the magistrate's reference to the 'apparently capricious use of assumptions' does not seem to involve an implicit finding of recklessness. However, the magistrate has not adverted to many of the primary propositions identified in Mansfield J's judgment in SBAU. Had he done so, it must be unlikely that he would have embarked on his critical trawl through the Tribunal's reasons. We regret to say that he has plainly ignored his own instruction not to be overly zealous in his scrutiny of those reasons. Moreover, as Heerey and Kiefel JJ point out in SBAN, the fact-finding process does not require the Tribunal to put greater store on one particular kind of evidence than its own view based on experience and other material. The findings made by the Tribunal in the present case were plainly open to it. Neither this Court nor the magistrate needs to agree with the Tribunal's reasons. The criticisms made by the magistrate mainly turn on his evaluation of the evidence and other material before the Tribunal but, in any event, such criticisms would not, in our opinion, warrant an inference being drawn of want of good faith on the part of the Tribunal. 23 One particular example illustrates the way in which the magistrate has unconsciously overstepped the bounds of judicial review and involved himself in the merits of the respondent's case. The magistrate singled out at the end of his litany of criticism the Tribunal's finding that the respondent would not have a political opinion imputed to him resulting in a real chance of persecution upon his return to Ukraine because he was not a high profile political activist. To impugn that finding, the magistrate plucked out of a section of the State Department report dealing with arbitrary or unlawful deprivation of life the case of a resident of Cherkasy detained by police on suspicion of theft. This case was not referred to by the Tribunal, but the Tribunal did set out in its statement of reasons for decision (at pp 16-17) extracts from that same section of the report relating to politically motivated killings. The material referred to by the Tribunal would seem more relevant since no claim was made by the respondent that he would be detained on suspicion that he was a common thief. Moreover, the respondent lived in Kiev, not Cherkasy which is located hundreds of kilometres further downstream towards the Black Sea. The magistrate's own view involves matters of conjecture that may or may not be far-fetched, but speculation of that kind provides no useful guidance in detecting a want of bona fides on the part of the decision-maker. The magistrate has plainly erred in his approach, and his finding on the question of good faith cannot be sustained. 24 The decision of Driver FM in WAAK was overturned by the Full Court in SBAN without the need to consider what he had to say about s 420(2)(b) of the Act. However, Driver FM's view of the significance of that provision has subsequently not been accepted by the Full Court (French, Hill and Marshall JJ) in WADK v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 48. To the extent that the magistrate in the present case was swayed by such a view, that heresy may also have contributed to his failure to defer to the Tribunal's fact-finding function. 25 The appeal will be allowed with costs. The orders of the court below will be set aside and in lieu thereof it will be ordered that the proceeding in that court be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

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