Minister for Immigration & Multicultural & Indigenous Affairs v WAAG

Should the jurisdiction be exercised? 8 Sometimes a decision is given on a view of the law which a higher court subsequently holds to be erroneous. Providing the order of the lower court has not been passed and entered, the decision of the lower court may be reopened: In re Harrison's Share under a Settlement; Harrison v Harrison [1955] Ch 260 at 283-284. 9 There is authority that such a course should not be permitted where the party has not before the lower court formally reserved the right to contend for a different view of the law: Piening v Wanless (1967) 117 CLR 498 at 506, 509 and 511, Eddins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 at 524. In raising this objection to a re-opening, the Minister points out that the appeal in the present case was heard after argument had been heard and decision reserved in the High Court in S157/2002 on 4 September 2002. So it would have been apparent that the authority of NAAV was currently under review and that any argument open to the respondent under a construction of s 474 different from that adopted in NAAV should have been reserved. Apart from anything else, as at the time of the hearing of this appeal it was quite possible that the High Court's judgment might be handed down before this Court's, in which case it would have been undoubtedly open to the respondent to ask for further argument to be heard. 10 We would prefer not to express a view on whether or not this objection is fatal to the application since we think that there is a more fundamental obstacle, and one which goes to the merits of the proposed re-opening. 11 The respondent's submissions do not advance any argument as to why the reasons of the RRT amounted to apprehended bias or "subconscious" actual bias or some other (unspecified) form of jurisdictional error. The essence of our reasoning was contained in the following paragraphs from our joint judgment, with which Moore J generally agreed: "65. The Magistrate's conclusion that the RRT adopted a 'completely closed approach' cannot be sustained. Where a claim for refugee status is based on grounds such as religion, membership of a particular social group or political opinion it is understandable that the RRT might test the veracity of the claim by reference to knowledge or attitudes which members of the relevant religion, social group or political party might be expected to possess. As a matter of common sense, this is a perfectly legitimate fact-finding technique for an administrative decision-maker. To take an example removed from the facts of the present case, if an applicant claimed a fear of persecution on the grounds of being a Catholic, the RRT might test this assertion by enquiring as to the applicant's knowledge of matters of Catholic doctrine, ritual, traditional belief and the like. It may be that the Tribunal member's understanding of such matters is in fact inaccurate. Or at the other extreme the Tribunal member may be correct but may assume a detailed knowledge that it would not be reasonable to expect of the average Catholic. These errors however would at worst provide grounds for criticism of the fact-finding process. They would not in themselves be suggestive of bad faith or the imposition of some illegitimate 'template'. 66. As to the 'nature and tone of the questioning' by the RRT, we see nothing beyond matters of personal style, which are a matter for the individual member. The consideration the RRT gave to the respondent's claim was genuine and thorough. In particular, there is nothing to suggest that the RRT knew or suspected that the applicant would not be able to answer the questions now complained of. The respondent was not being trapped or set up." 12 That reasoning seems equally relevant to an allegation of apprehended bias or "subconscious" actual bias. No argument has been advanced as to why it should not be applicable. The case of the respondent before the magistrate and on appeal depended entirely on what should or could be inferred objectively from the RRT's reasons and the transcript of the hearing before it. We held that material could not give rise to any inference of actual bias (that being the particular kind of Hickman bad faith relied on). The respondent, in any re-opening, would have to show that a "fair-minded lay person who is properly informed as to the nature of the proceedings, the matter in issue and the conduct which is said to give rise to an apprehension of bias" might reasonably apprehend that the RRT "might not bring an impartial mind to bear to the resolution of the question to be decided": Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28]. 13 True it is, as the High Court points out in RRT at [28], an allegation of apprehended bias requires a different, and lesser, proof than one of actual bias. The former is concerned with the "objective test of possibility, as distinct from probability". But the respondent's submissions on the merits do not go any further than the generalised allegation that there has been "a failure to review the Tribunal's decision according to the standard of fairness where that standard has always been the law would be a substantial injustice" (par 37). 14 It has not been shown that the availability of grounds thought to be unavailable at the time of the hearing would make any difference to the result. 15 The motion by notice dated 17 February 2003 will be dismissed with costs. We would add that where a case for re-opening is made out, O 35 r 7(1) contemplates that the further hearing will be by the court which has pronounced, but not yet entered, judgment. The respondent submitted (par 40) that it was "inappropriate" for this Full Court to hear an appeal on an issue not considered by the magistrate. No reason was advanced for this assertion. It seems contrary to the principle that the power to review a judgment where the order has not been entered will not ordinarily be exercised to permit a general re-opening: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey and Kiefel.

REASONS FOR JUDGMENT 16 I have read the reasons of Heerey and Kiefel JJ in a draft form. I agree with their Honours that the application to set aside the earlier orders should be dismissed with costs. However I reach this conclusion by a slightly different route. 17 The delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") accepted that the respondent was a homosexual when initially assessing the respondent's application for a protection visa. However the delegate appears to have concluded that the respondent would be able to conduct himself in Iran as he had in the past and the delegate appears (at least implicitly from his reasons) also to have concluded the respondent would not be at risk of persecution if he was discrete in maintaining a homosexual lifestyle. Error may attend this latter conclusion: Omar v Minister for Immigration and Multicultural Affairs (2000) 104 FCR 187. 18 The Tribunal reached a contrary conclusion about whether the respondent was a homosexual. It concluded that he was not. In the proceedings before the Federal Magistrate the issue raised by the respondent was whether the Tribunal approached the question of whether the applicant was a homosexual with a closed mind, was actually biased and did not act bona fide (that this was the issue is apparent from the Federal Magistrate's reasons at [7]). In my earlier judgment in this appeal, I indicated that I accepted the Federal Magistrate erred in reaching that conclusion. The Federal Magistrate's conclusion that the Tribunal was actually biased was based on an analysis of the approach adopted by the Tribunal in its questioning of the respondent, the language used and assumptions apparently made by the Tribunal as well as inferences that might be drawn from those matters concerning the state of mind of the Tribunal. 19 However any inquiry as to whether these matters might establish an apprehension of bias (rather than actual bias and lack of bona fides) proceeds on different footing. In NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1092 I noted (at [23]-[24]): "If a person contends that a decision maker was actually biased then the allegation concerns the state of mind of the decision maker. The evidence may also be relevant to the question of bona fides: see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 249, 275, 293 and 305. If, however, the contention is of apprehended bias then the inquiry is entirely different. This matter was discussed by Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]: Until recently it was extremely rare for parties before Australian courts to assume the task of establishing 'actual bias' on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish "imputed", "apparent", 'apprehended', 'suspected', 'notional' or 'deemed' bias ('imputed bias'). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it". A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief. (Emphasis added) See also the observations of Kirby J at [134]. It is true that cases can arise where the articulated complaint is of apprehended bias but the real complaint is of actual bias: see the observations of Callinan J in Johnson v Johnson (2000) 174 ALR 655 at [79]. Facts which might demonstrate apprehended bias might also be facts from which inferences could be drawn about the state of mind of the decision maker and a conclusion reached that the decision maker was actually biased. Those facts might also bear upon the question of whether the power had been exercised bona fide. However the use that should be made of the evidence both by the parties and Court when apprehended bias is alleged, is quite different to the use that should be made of it when actual bias is alleged." 20 In the present matter the focus of the analysis undertaken by the parties, and in particular the respondent, and advanced to this Court has been whether the matters viewed by the Federal Magistrate as demonstrating actual bias (and lack of bona fides) supported that conclusion. For my part I would not wish to express a view about whether these matters demonstrated apprehended bias without further submissions by the parties on this question. I certainly consider, as I said in my earlier judgment in this appeal, that it may have been inappropriate for the Tribunal to have used some of the language it did. 21 However the respondent's complaint (and the issue he now wants to ventilate concerning apprehended bias) concerns the finding of the Tribunal that he was not a homosexual. The principal difficulty confronting the respondent in persuading this Full Court to set aside its earlier orders is, in my opinion, that this finding (that he was not a homosexual) was not critical to the decision of the Tribunal. I say that because the Tribunal analysed, at length, the evidence concerning the respondent's particular experiences arising from his homosexual activities (on the unstated premise that he was a homosexual) and the circumstances in Iran more generally and concluded the respondent did not have a well founded fear of persecution. Before reaching this conclusion the Tribunal had earlier recognised that the laws in Iran could operate extremely harshly on homosexuals and could even result in the imposition of the death penalty. 22 Apprehended bias is an aspect of procedural fairness. It is not difficult to see how demonstrated apprehended bias in relation to one aspect of a decision maker's decision might be viewed as tainting the entire decision. Nonetheless there is authority supporting the proposition that a decision vitiated by bias is capable of severance: see Wentworth v Wentworth [1999] NSWSC 638 at [21]. I have re-read the Tribunal's reasons concerning whether the respondent (if a homosexual) had a well founded fear of persecution (and in particular the independent country information concerning homosexuals in Iran) and it is not apparent to me that its reasoning on that question is infected by any objectively manifest inappropriate attitude towards or apparent bias against the respondent (even taking into account the passages from the transcript relied on by the respondent earlier in the appeal). While it is probably ultimately of no legal relevance, two challenges in this Court to other decisions of the Tribunal concerning homosexuals from Iran have failed to expose error in the Tribunal's consideration of, amongst other things, independent country information supporting a conclusion that the particular applicant did not have a well founded fear of persecution if he was to return to that country even as a homosexual: see [2002] FCA 625 and [2001] FCA 1843. 23 In my opinion, the point now sought to be raised by the respondent, even if made good, would not demonstrate there had been a practical injustice: see Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502. Accordingly I would not exercise the discretionary power to set aside the earlier orders of the Full Court. I would dismiss the application to set aside the earlier orders with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

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